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Union Of India Vs. Sri Sarada Mills Ltd | is ineffective. The reason is that a bare right of litigation cannot be assigned.......The only decision to the contrary is that of the Privy Council in King v. Victoria Insurance Co. Ltd., 1896 AC 250 which should not be followed." (see the argument at p. 108).The Court overruled the argument and held that the decision in 1896 AC 250 correctly lays down the law. After reviewing the case law on the subject, Roskill, J. speaking for the Court observed :"So much, then for the authorities. What is the principle to be adduced from them? I think it can be stated in this way. Where, before 1873, equity would have compelled the assignor to exercise his rights against the contract breaker or tort-feasor for the benefit of the assignee, those rights can, since 1873, be made the subject of a valid legal assignment and, subject to due compliance with the requirements of the statute as to notice, can be enforced at law. Equity always, before 1873, compeldsled an assured to lend his name to enforce his underwriters rights of subrogation against a contract breaker or tort-feasor. It follows, therefore, that the only possible object to such rights being now enforceable at law is that such enforcement would involve the enforcement of a bare cause of action in contract or in tort. But as Mr. Littman urged upon me, if that is so, why did equity act as equity did not before 1873 in relation to the enforcement of subrogation right? I think the answer is because the enforcement of such rights was never regarded as the enforcement of a bare cause of action, but as the enforcement of a cause of action legitimately supported by the underwriters interest in recouping himself in respect of the amount of the loss which he had paid under the policy as a result of the acts, neglects or defaults of the actual contract breaker or tort-feasor."47. In Ansons Law of Contract Twenty-third edition, edited by A.G. Guest, p. 417, it is stated that although an assignment of a bare right to litigate has been held invalid, the principle is necessarily subject to qualification. One such qualification is"Supreme an insurer, who has indemnified his insured under a policy of insurance and in consequence been assigned the insureds right of action in respect of a breach of contract, sues to enforce this right of action against the contract-breaker. Could he be met by the plea that he is the assignee of a bare right of action? In (1965) 1 QB 101 Roskill, J. held that the enforcement of such a right is not the enforcement of a bare right of action, but of a right of action legitimately supported by the insurers interest in recouping the loss sustained by paying out on the policy".48. In the Law of Contract by Cheshire and Fifoot, Seventh edition, p. 472, the case of (1965) 1 QB 101 is quoted as authority for the proposition that if goods shipped on a vessel are delivered in a damaged condition, the consignee, after being indemnified for his loss by the insurers can assign to the latter his right to recover damages from the owner of the vessel.49. The real reason why a mere right to sue cannot be assigned is that such an assignment would offend the rule of champerty and maintenance. Now, as in this case where an insurance company has been subrogated to all the rights and the remedies of the assured by virtue of Section 135-A, the reason for the rule against assignment of a mere right to sue does not obtain because the insurance company is clothed with all the rights and remedies of the assured and the only thing lacking is the capacity to sue in its own name. If the right is capable of being assigned, and is assigned, it would no longer be logical to say that the assignor can still sue, for, whatever right the assignor had in the subject matter had passed to the assignee. It is impossible to understand, how, after the assignment, the assignor can still maintain a suit.50. This question was considered by the Madras High Court in AIR 1965 Mad 159 and the Court said :"However, an assignment or a transfer implies something more than subrogation, and vests in the insurer the assureds interest, rights and remedies in respect of the subject matter and substance of the insurance. In such a case, therefore, the insurer, by virtue of the transfer of assignment in his favour will be in a position to maintain a suit in his own name against third parties (22 Halsburys Laws of England, Simond Edn. paras 512-513 and Shawcross on Motor Insurance)."Normally, an assignment of a right of action for a tort is not valid under Section 6 (e). But cases of subrogation as applied to insurance for indemnity are an exception to the rule and assignments by the assured to the insurer of his rights and remedies being more than a transfer of a mere right to sue are permissilbe and are valid. But express assignment by the assured of all his rights is necessary and subrogation by itself will not enable the insurer to sue in his own name (1896 A.C. 250; (1883) 11 QBD 380)."It is regrettable that the attention of the High Court was not drawn to the above decision.51. I think the reasoning in the decisions above referred to is correct, that the assignment conveyed to the insurance company, the entire right in respect of the subject matter of the insurance, including the right of the assured to sue in its own name and that, after the assignment, the assured had no cause of action to institute the suit against the Railway Administration for recovery of damages.52. I would allow the appeal and set aside the judgment and decree of the High Court and restore the decree passed by the Subordinate Judge Coimbatore, dismissing the suit, without any order as to costs. | 0[ds]15. A chose in action for breach of contract was not assignable at law of contract was not assignment at law but was assignable at equity. A chose in action in tort was assignable neither in law nor in equity. A bare right of action is not assignable. When however the right of action is one of the incidents attached to the property or contract assigned it will not be treated as a bare right of action.16. In ErtelBieber and Co. v. Rio Tinto Co., 1918 A.C. 260Lord Sumner treated a cause of action for damages for breach of contract as chose in action, a form of property. The reason for holding a cause of action for damages for breachd of contract to be a form of property is that the assignee is seeking to enforce a right which is incidental to property or a right to a sum of money which theoretically is part of the property.17. The common law was not inclined in favour of assignment of contractual rights and liabilities. A person to whom rights were assigned could not sue in his own name at common law. In equity both legal and equitable choses in action have been subject to assignment. Contractual rights being legal choses in action could generally be assigned. It is not these reasoning that the term thing in action in the Law of Property Act has been interpreted in the Victoria Insurance Co. 1896 SC 250 and the Pacific Steam Navigation Co. (1965) 1 QB 101 cases (supra) to include any right which the common law looked on as not assignable by reason of its being chose in action but which a court of equity dealt with as assignable.18. In the present case, the insurance company has not sued to enforce any assignment. The documents which is described as letter of subrogation also uses the words of assigning rights against the Railway Administration. It is not necessary to express any opinion whether the letter of subrogation amounted to an assignment in the present case, because the insurance company has not sought to enforce any assignment.19.The respondent mill will give a valid discharge of the Railway Administration in respect of loss and damages. This decree will be a bar to the institution of any suit by the insurance company in respect of the subject matter of the suit. The respondent mill is answerable and accountable dto the insurance company for the moneys recovered in the suit to the extent the insurance company paid the respondent mill.20. The High Court expressed the view that even if the assignment is valid the right of action residing in the assignor has not ceased. The respondent mill sued the Railway Administration for breach of contract of carriage and damages for negligence. The letter of subrogation did not divest the mill of its cause of action against the Railway Administration for loss and damages.21. The defence of the Railway Administration was that the mill realised from the insurance company the damages and "as such the plaintiff (meaning thereby the respondent mill) has no right to claim any sum in this action". If the specific plea of assignment had been taken in the written statement the respondent mill would have impleaded the insurance company. The Court could have in those circumstances been in a position to afford full and complete relief to the parties.22. In the present case the insurance company and the mill proceeded on the basis that the insurance company was only subrogated to the rights of the assured. The letter of subrogation contains intrinsic evidence that the respondent would give the insurance company facilities for enforcing rights. This issuance company has chosen to allow the mill to sue. The cause of action of the mill against the Railway Administration did not perish on giving the letter of subrogation. | 0 | 7,598 | 684 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
is ineffective. The reason is that a bare right of litigation cannot be assigned.......The only decision to the contrary is that of the Privy Council in King v. Victoria Insurance Co. Ltd., 1896 AC 250 which should not be followed." (see the argument at p. 108).The Court overruled the argument and held that the decision in 1896 AC 250 correctly lays down the law. After reviewing the case law on the subject, Roskill, J. speaking for the Court observed :"So much, then for the authorities. What is the principle to be adduced from them? I think it can be stated in this way. Where, before 1873, equity would have compelled the assignor to exercise his rights against the contract breaker or tort-feasor for the benefit of the assignee, those rights can, since 1873, be made the subject of a valid legal assignment and, subject to due compliance with the requirements of the statute as to notice, can be enforced at law. Equity always, before 1873, compeldsled an assured to lend his name to enforce his underwriters rights of subrogation against a contract breaker or tort-feasor. It follows, therefore, that the only possible object to such rights being now enforceable at law is that such enforcement would involve the enforcement of a bare cause of action in contract or in tort. But as Mr. Littman urged upon me, if that is so, why did equity act as equity did not before 1873 in relation to the enforcement of subrogation right? I think the answer is because the enforcement of such rights was never regarded as the enforcement of a bare cause of action, but as the enforcement of a cause of action legitimately supported by the underwriters interest in recouping himself in respect of the amount of the loss which he had paid under the policy as a result of the acts, neglects or defaults of the actual contract breaker or tort-feasor."47. In Ansons Law of Contract Twenty-third edition, edited by A.G. Guest, p. 417, it is stated that although an assignment of a bare right to litigate has been held invalid, the principle is necessarily subject to qualification. One such qualification is"Supreme an insurer, who has indemnified his insured under a policy of insurance and in consequence been assigned the insureds right of action in respect of a breach of contract, sues to enforce this right of action against the contract-breaker. Could he be met by the plea that he is the assignee of a bare right of action? In (1965) 1 QB 101 Roskill, J. held that the enforcement of such a right is not the enforcement of a bare right of action, but of a right of action legitimately supported by the insurers interest in recouping the loss sustained by paying out on the policy".48. In the Law of Contract by Cheshire and Fifoot, Seventh edition, p. 472, the case of (1965) 1 QB 101 is quoted as authority for the proposition that if goods shipped on a vessel are delivered in a damaged condition, the consignee, after being indemnified for his loss by the insurers can assign to the latter his right to recover damages from the owner of the vessel.49. The real reason why a mere right to sue cannot be assigned is that such an assignment would offend the rule of champerty and maintenance. Now, as in this case where an insurance company has been subrogated to all the rights and the remedies of the assured by virtue of Section 135-A, the reason for the rule against assignment of a mere right to sue does not obtain because the insurance company is clothed with all the rights and remedies of the assured and the only thing lacking is the capacity to sue in its own name. If the right is capable of being assigned, and is assigned, it would no longer be logical to say that the assignor can still sue, for, whatever right the assignor had in the subject matter had passed to the assignee. It is impossible to understand, how, after the assignment, the assignor can still maintain a suit.50. This question was considered by the Madras High Court in AIR 1965 Mad 159 and the Court said :"However, an assignment or a transfer implies something more than subrogation, and vests in the insurer the assureds interest, rights and remedies in respect of the subject matter and substance of the insurance. In such a case, therefore, the insurer, by virtue of the transfer of assignment in his favour will be in a position to maintain a suit in his own name against third parties (22 Halsburys Laws of England, Simond Edn. paras 512-513 and Shawcross on Motor Insurance)."Normally, an assignment of a right of action for a tort is not valid under Section 6 (e). But cases of subrogation as applied to insurance for indemnity are an exception to the rule and assignments by the assured to the insurer of his rights and remedies being more than a transfer of a mere right to sue are permissilbe and are valid. But express assignment by the assured of all his rights is necessary and subrogation by itself will not enable the insurer to sue in his own name (1896 A.C. 250; (1883) 11 QBD 380)."It is regrettable that the attention of the High Court was not drawn to the above decision.51. I think the reasoning in the decisions above referred to is correct, that the assignment conveyed to the insurance company, the entire right in respect of the subject matter of the insurance, including the right of the assured to sue in its own name and that, after the assignment, the assured had no cause of action to institute the suit against the Railway Administration for recovery of damages.52. I would allow the appeal and set aside the judgment and decree of the High Court and restore the decree passed by the Subordinate Judge Coimbatore, dismissing the suit, without any order as to costs.
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0
### Explanation:
15. A chose in action for breach of contract was not assignable at law of contract was not assignment at law but was assignable at equity. A chose in action in tort was assignable neither in law nor in equity. A bare right of action is not assignable. When however the right of action is one of the incidents attached to the property or contract assigned it will not be treated as a bare right of action.16. In ErtelBieber and Co. v. Rio Tinto Co., 1918 A.C. 260Lord Sumner treated a cause of action for damages for breach of contract as chose in action, a form of property. The reason for holding a cause of action for damages for breachd of contract to be a form of property is that the assignee is seeking to enforce a right which is incidental to property or a right to a sum of money which theoretically is part of the property.17. The common law was not inclined in favour of assignment of contractual rights and liabilities. A person to whom rights were assigned could not sue in his own name at common law. In equity both legal and equitable choses in action have been subject to assignment. Contractual rights being legal choses in action could generally be assigned. It is not these reasoning that the term thing in action in the Law of Property Act has been interpreted in the Victoria Insurance Co. 1896 SC 250 and the Pacific Steam Navigation Co. (1965) 1 QB 101 cases (supra) to include any right which the common law looked on as not assignable by reason of its being chose in action but which a court of equity dealt with as assignable.18. In the present case, the insurance company has not sued to enforce any assignment. The documents which is described as letter of subrogation also uses the words of assigning rights against the Railway Administration. It is not necessary to express any opinion whether the letter of subrogation amounted to an assignment in the present case, because the insurance company has not sought to enforce any assignment.19.The respondent mill will give a valid discharge of the Railway Administration in respect of loss and damages. This decree will be a bar to the institution of any suit by the insurance company in respect of the subject matter of the suit. The respondent mill is answerable and accountable dto the insurance company for the moneys recovered in the suit to the extent the insurance company paid the respondent mill.20. The High Court expressed the view that even if the assignment is valid the right of action residing in the assignor has not ceased. The respondent mill sued the Railway Administration for breach of contract of carriage and damages for negligence. The letter of subrogation did not divest the mill of its cause of action against the Railway Administration for loss and damages.21. The defence of the Railway Administration was that the mill realised from the insurance company the damages and "as such the plaintiff (meaning thereby the respondent mill) has no right to claim any sum in this action". If the specific plea of assignment had been taken in the written statement the respondent mill would have impleaded the insurance company. The Court could have in those circumstances been in a position to afford full and complete relief to the parties.22. In the present case the insurance company and the mill proceeded on the basis that the insurance company was only subrogated to the rights of the assured. The letter of subrogation contains intrinsic evidence that the respondent would give the insurance company facilities for enforcing rights. This issuance company has chosen to allow the mill to sue. The cause of action of the mill against the Railway Administration did not perish on giving the letter of subrogation.
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E. J. Mathew Vs. State of Kerala | may be prescribed, the assessing authority may assess a dealer for any year as if his transactions in such year had been the same as in the previous year."Rule 6 of the Travancore General Sales Tax Rules, 1950, hereinafter called the Rules, was in these terms :Rule 6 : "The sale of any of the goods mentioned in items (i) to (ix) in section 3, sub-section (2), shall be subject to the tax specified in that sub-section at the stage of sale by the person who in the State is the first dealer in such goods, who is not exempt from taxation under section 3(3)."4. It has been contended that the Tribunal gave a finding that the sales to the assessee by the non-resident dealers fell within the explanation to article 286(1)(a) of the Constitution. According to the explanation a sale or purchase was to be deemed to have taken place in the State in which the goods had actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State. It is submitted that all the sales made by the non-resident dealers to the assessee must be deemed to have taken place in the erstwhile State of Travancore-Cochin and therefore it were those dealers who had made the first sales in the State who were liable to pay the tax under section 3(2) of the Act. It is rule 6 which prescribes that the sale shall be subject to the tax specified in sub-section (2) of section 3 at the stage of sale by the person who in the State was the first dealer in such goods. Therefore according to the appellant he was not the first dealer and it was the non-resident or the seller in each transaction who was liable to the payment of tax.5. The High Court relied on certain decisions, namely, Sundararamier & Co. v. State of Andhra Pradesh ([1958] 9 S.T.C. 298) and State of Kerala v. Cochin Coal Company Ltd. ([1961] 12 S.T.C. 1) and was of the view that according to these decisions the Act imposed or authorised the imposition of a tax on the sale or purchase of goods where such sale or purchase took place in the course of inter-State trade or commerce subject to authorisation by Parliament as provided in clause (2) of article 286 and that the Parliament provided the necessary authorisation for the period between the 1st day of April, 1951, and 6th day of September, 1955, by the Sales Tax Laws Validation Act, 1956. There was a Presidential Order under the proviso and the High Court observed that when rule 6 was framed on May 30, 1950, it was possible for the State to tax what may be called "explanation sales" on that date and till March 31, 1951. This is how the High Court proceeded to deal with the matter :"A reading of rule 6 which was fixing a point of taxation for the additional tax under section 3(2) of the Act, however, does not indicate that the point was being fixed with a view to future parliamentary legislation under article 286(2) of the Constitution or only for the limited period of less than a year between the 30th day of May, 1950, and the 31st day of March, 1951. In these circumstances we think we should hold that explanation sales are not within the purview of that rule and that the first sales specified is the first intra-State sale by a dealer like the petitioner who is not exempt from taxation under section 3(3) of the Act."6. It is not necessary to discuss whether the above view expressed by the High Court is correct or not because we are of the opinion that the appellant has failed to show that the non-resident dealers or sellers from whom he had purchased tobacco could fall within the meaning of the following critical words of rule 6 : "by the person who in the State is the first dealer in such goods". No contention has been raised before us by the counsel for the appellant that rule 6 was not applicable. It has therefore only to be seen as to who would be a person who in the State would be the first dealer in such goods. It appears to us that the person to be the first dealer has to be in the State and not outside the State. This is the plain and grammatical meaning which can be attributed to the words "by the person who in the State is the first dealer in such goods" and we have not been persuaded to depart from the normal canons of interpretation by giving any other meaning to these words. We also find it difficult to accede to the submission that the fiction under the explanation to article 286(1)(a) which determines the situs of a sale should be extended to "dealer" as given in the Act.Our attention was drawn by counsel for the appellant to a decision of this court in V. O. Vakkan & Others v. The State of Madras ([1955] 6 S.T.C. 647) in which it was found that a person who was residing outside the State of Madras was a "dealer" within the definition of the term in the Madras General Sales Tax Act. This finding, however, was based on the peculiar facts of that case inasmuch as the non-resident dealer had entered into most of the contracts with firms in Fort Cochin which was part of the Madras State and the goods were deliverable and actually delivered to the purchaser in that place. No such contention appears to have been advanced, in the present case, at any stage and for that reason no finding could be given by the departmental authorities about the magnitude of the transactions or contracts made by those dealers with persons in the erstwhile State of Travancore-Cochin. The appellant can hardly derive any assistance from the aforesaid decision of this court. | 0[ds]6. It is not necessary to discuss whether the above view expressed by the High Court is correct or not because we are of the opinion that the appellant has failed to show that thedealers or sellers from whom he had purchased tobacco could fall within the meaning of the following critical words of rule 6 : "by the person who in the State is the first dealer in such goods". No contention has been raised before us by the counsel for the appellant that rule 6 was not applicable. It has therefore only to be seen as to who would be a person who in the State would be the first dealer in such goods. It appears to us that the person to be the first dealer has to be in the State and not outside the State. This is the plain and grammatical meaning which can be attributed to the words "by the person who in the State is the first dealer in such goods" and we have not been persuaded to depart from the normal canons of interpretation by giving any other meaning to these words. We also find it difficult to accede to the submission that the fiction under the explanation to article 286(1)(a) which determines the situs of a sale should be extended to "dealer" as given in the Act.Our attention was drawn by counsel for the appellant to a decision of this court in V. O. Vakkan & Others v. The State of Madras ([1955] 6 S.T.C. 647) in which it was found that a person who was residing outside the State of Madras was a "dealer" within the definition of the term in the Madras General Sales Tax Act. This finding, however, was based on the peculiar facts of that case inasmuch as thedealer had entered into most of the contracts with firms in Fort Cochin which was part of the Madras State and the goods were deliverable and actually delivered to the purchaser in that place. No such contention appears to have been advanced, in the present case, at any stage and for that reason no finding could be given by the departmental authorities about the magnitude of the transactions or contracts made by those dealers with persons in the erstwhile State ofThe appellant can hardly derive any assistance from the aforesaid decision of this court. | 0 | 1,816 | 430 | ### 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:
may be prescribed, the assessing authority may assess a dealer for any year as if his transactions in such year had been the same as in the previous year."Rule 6 of the Travancore General Sales Tax Rules, 1950, hereinafter called the Rules, was in these terms :Rule 6 : "The sale of any of the goods mentioned in items (i) to (ix) in section 3, sub-section (2), shall be subject to the tax specified in that sub-section at the stage of sale by the person who in the State is the first dealer in such goods, who is not exempt from taxation under section 3(3)."4. It has been contended that the Tribunal gave a finding that the sales to the assessee by the non-resident dealers fell within the explanation to article 286(1)(a) of the Constitution. According to the explanation a sale or purchase was to be deemed to have taken place in the State in which the goods had actually been delivered as a direct result of such sale or purchase for the purpose of consumption in that State. It is submitted that all the sales made by the non-resident dealers to the assessee must be deemed to have taken place in the erstwhile State of Travancore-Cochin and therefore it were those dealers who had made the first sales in the State who were liable to pay the tax under section 3(2) of the Act. It is rule 6 which prescribes that the sale shall be subject to the tax specified in sub-section (2) of section 3 at the stage of sale by the person who in the State was the first dealer in such goods. Therefore according to the appellant he was not the first dealer and it was the non-resident or the seller in each transaction who was liable to the payment of tax.5. The High Court relied on certain decisions, namely, Sundararamier & Co. v. State of Andhra Pradesh ([1958] 9 S.T.C. 298) and State of Kerala v. Cochin Coal Company Ltd. ([1961] 12 S.T.C. 1) and was of the view that according to these decisions the Act imposed or authorised the imposition of a tax on the sale or purchase of goods where such sale or purchase took place in the course of inter-State trade or commerce subject to authorisation by Parliament as provided in clause (2) of article 286 and that the Parliament provided the necessary authorisation for the period between the 1st day of April, 1951, and 6th day of September, 1955, by the Sales Tax Laws Validation Act, 1956. There was a Presidential Order under the proviso and the High Court observed that when rule 6 was framed on May 30, 1950, it was possible for the State to tax what may be called "explanation sales" on that date and till March 31, 1951. This is how the High Court proceeded to deal with the matter :"A reading of rule 6 which was fixing a point of taxation for the additional tax under section 3(2) of the Act, however, does not indicate that the point was being fixed with a view to future parliamentary legislation under article 286(2) of the Constitution or only for the limited period of less than a year between the 30th day of May, 1950, and the 31st day of March, 1951. In these circumstances we think we should hold that explanation sales are not within the purview of that rule and that the first sales specified is the first intra-State sale by a dealer like the petitioner who is not exempt from taxation under section 3(3) of the Act."6. It is not necessary to discuss whether the above view expressed by the High Court is correct or not because we are of the opinion that the appellant has failed to show that the non-resident dealers or sellers from whom he had purchased tobacco could fall within the meaning of the following critical words of rule 6 : "by the person who in the State is the first dealer in such goods". No contention has been raised before us by the counsel for the appellant that rule 6 was not applicable. It has therefore only to be seen as to who would be a person who in the State would be the first dealer in such goods. It appears to us that the person to be the first dealer has to be in the State and not outside the State. This is the plain and grammatical meaning which can be attributed to the words "by the person who in the State is the first dealer in such goods" and we have not been persuaded to depart from the normal canons of interpretation by giving any other meaning to these words. We also find it difficult to accede to the submission that the fiction under the explanation to article 286(1)(a) which determines the situs of a sale should be extended to "dealer" as given in the Act.Our attention was drawn by counsel for the appellant to a decision of this court in V. O. Vakkan & Others v. The State of Madras ([1955] 6 S.T.C. 647) in which it was found that a person who was residing outside the State of Madras was a "dealer" within the definition of the term in the Madras General Sales Tax Act. This finding, however, was based on the peculiar facts of that case inasmuch as the non-resident dealer had entered into most of the contracts with firms in Fort Cochin which was part of the Madras State and the goods were deliverable and actually delivered to the purchaser in that place. No such contention appears to have been advanced, in the present case, at any stage and for that reason no finding could be given by the departmental authorities about the magnitude of the transactions or contracts made by those dealers with persons in the erstwhile State of Travancore-Cochin. The appellant can hardly derive any assistance from the aforesaid decision of this court.
### Response:
0
### Explanation:
6. It is not necessary to discuss whether the above view expressed by the High Court is correct or not because we are of the opinion that the appellant has failed to show that thedealers or sellers from whom he had purchased tobacco could fall within the meaning of the following critical words of rule 6 : "by the person who in the State is the first dealer in such goods". No contention has been raised before us by the counsel for the appellant that rule 6 was not applicable. It has therefore only to be seen as to who would be a person who in the State would be the first dealer in such goods. It appears to us that the person to be the first dealer has to be in the State and not outside the State. This is the plain and grammatical meaning which can be attributed to the words "by the person who in the State is the first dealer in such goods" and we have not been persuaded to depart from the normal canons of interpretation by giving any other meaning to these words. We also find it difficult to accede to the submission that the fiction under the explanation to article 286(1)(a) which determines the situs of a sale should be extended to "dealer" as given in the Act.Our attention was drawn by counsel for the appellant to a decision of this court in V. O. Vakkan & Others v. The State of Madras ([1955] 6 S.T.C. 647) in which it was found that a person who was residing outside the State of Madras was a "dealer" within the definition of the term in the Madras General Sales Tax Act. This finding, however, was based on the peculiar facts of that case inasmuch as thedealer had entered into most of the contracts with firms in Fort Cochin which was part of the Madras State and the goods were deliverable and actually delivered to the purchaser in that place. No such contention appears to have been advanced, in the present case, at any stage and for that reason no finding could be given by the departmental authorities about the magnitude of the transactions or contracts made by those dealers with persons in the erstwhile State ofThe appellant can hardly derive any assistance from the aforesaid decision of this court.
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M/s. Ganga Saran and Sons Private Limited Calcutta Vs. Income Tax Officer and Others | business of the Delhi Branch of the assessee and was rendering full time service to the assessee in that capacity, it is difficult to see how any one could reasonably come to the belief that the payment of remuneration made to him was sham and bogus. Surely, the Income Tax officer could not expect Deo Datt Sharma to devote his full time and energy to the business of the Delhi Branch of the asse ssee without any remuneration whatsoever. The actual remuneration paid to Deo Datt Sharma was in fact found to be genuine and reasonable by the Appellate Assistant Commissioner while disposing of the appeal of the assessee for the asse ssment year 1949-50 as also by the Income Tax Tribunal while disposing of the appeal for the assessment year 1957- 58. It is true that Deo Datt Sharma was the brother-in-law of Ganga Saran Sharma, the managing director of the assessee, but t his circumstance cannot by any stretch of imagination lead to an inference that the payment of remuneration to Deo Datt Sharma who was solely managing and looking after the business of the Delhi Branch of the assessee was sham and bogus. Even a close relative who is in management and charge of a business on a full time basis is entitled to be paid remuneration and, in fact, it would be wholly unreasonable to expect him to work free of charge.6. The Revenue, however, relied strongly on the fact that out of the total amount of remuneration of Rs. 3, 51, 000 received by Deo Datt Sharma and credited to his account with the assessee, he had not withdrawn more than Rs. 4, 000 per year for himself and an aggregate sum of Rs. 2, 37, 55 0 was expended by him in giving a loan to Ganga Saran Sharma and making gifts to the son, wife and daughters-in-law of Ganga Saran Sharma on diverse dates between 31st July, 1957 and 26th December 1961. We fail to see how this fact can lend itself to the inference that the payment of remuneration to Deo Datt Sharma was bogus and not genuine. It is an admitted fact that Deo Datt Sharma was the brother-in-law of Ganga Saran Sharma and there is nothing unusual in Deo Datt Sharma giving a loan to Ganga Saran Sharma or making gift to the son, wife and daughters-in-law of Ganga Saran Sharma who were his close relatives. It is indeed difficult to appreciate how any inference can reasonably be drawn that the payment of remuneration t o Deo Datt Sharma was sham and bogus merely from the manner in which he expended the amount of remuneration received by him, particularly when the persons to whom he gave a loan and made gifts were his close relatives. It is possible that Deo Datt Sharma had other financial resources apart from the remuneration derived by him from the assessee and he therefore decided to give a loan and make gifts to his close relatives out of the remuneration received by him for valuable services re ndered to the assessee. In fact, if he had no other financial resources, it is extremely difficult-one might say, almost impossible-to believe that he worked for the assessee and managed and looked after the business of the Delhi Branch on a full time basis without any remuneration or in any event on a paltry remuneration of Rs. 4, 000 per year when the managing director and other directors who were working like him were getting much more from the assessee and as the proprietor of the busi ness prior to its taking over by the assessee, he was earning an average profit of about Rs. 36, 000/- per year. We are clearly of the view that on these facts the Income Tax Officer could have no reason to believe that the payment of remuneration to Deo Datt Sharma was sham and bogus and that the amount of remuneration paid to him was wrongly allowed as a permissible deduction.7. We may point out that, in fact, the statement of account of Deo Datt Sharma with the assessee for the relevant accounting year as also the previous years were with the Income Tax Officer at the time of the original assessment and these statements of account clearly showed that out of the amount of remuneration credited to his account, he had made a gift of Rs. 12, 550 to the son of Ganga Saran Sharma on 31st July 1957 and given a loan of Rs. 2, 25, 000 to Ganga Saran Sharma on 25th August, 1958 and the Income Tax Officer was fully aware that Ganga Saran Sharma was the man aging director of the assessee. It is possible and we may assume it in favour of the Revenue, that the subsequent gifts made by Deo Datt Sharma to the wife and daughters-in-law of Ganga Saran Sharma were not disclosed to the Income Tax Officer at the time of the original assessment, but these gifts being subsequent to the relevant accounting year, the assessee was not bound to disclose the same to the Income Tax Officer. Moreover, it is difficult to appreciate how the assessee could be said to be under an obligation to disclose to the Income Tax Officer in the course of its assessment as to how a director who was in sole charge of the management of the business of the assessee and who was being paid remunerati on for the services rendered by him to assessee, had utilised the amount of remuneration received by him. We do not think it possible to sustain the conclusion that the assessee omitted or failed to disclose fully and truly any material facts relating to his assessment.8. We must in the circumstances hold that neither of the two conditions necessary for attracting the applicability of section 147(a) was satisfied in the present case and the notice issued by the Income Tax Officer mu st be held to be without jurisdiction.9. | 1[ds]s well settled as a result of several decisions of this Court that two distinct conditions must be satisfied before the Income Tax Offi cer can assume jurisdiction to issuenotice under section 147 (a). First, he must have reason to believe that the income of the assessee has escaped assessment and secondly, he must have reason to believe that such escapement is by reaso n of the omission or failure on the part of the assessee to disclose fully and truly all material facts necessary for his assessment. If either of these conditions is not fulfilled, the notice issued by the Income Tax Officer would be without jurisdiction. The important words under section 147 (a) are "has reason to believe" and these words are stronger than the words "is satisfied". The belief entertained by the Income Tax Officer must not be arbitrary or irrational. It mus t be reasonable or in other words it must be based on reasons which are relevant and material. The Court, of course, cannot investigate into the adequacy or sufficiency of the reasons which have weighed with the Income Tax Officer in comi ng to the belief, but the Court can certainly examine whether the reasons are relevant and have a bearing on the matters in regard to which he is required to entertain the belief before he can issue notice under section 147 (a). It there is no rational and intelligible nexus between the reasons and the belief, so that, on such reasons, no one properly instructed on facts and law could reasonably entertain the belief, the conclusion would be inescapable that the Income Tax Officer c ould not have reason to believe that any part of the income of the assessee had escaped assessment and such escapement was by reason of the omission or failure on the part of the assessee to disclose fully and truly all material facts and the no tice issued by him would be liable to he struck down ashere on the facts as admitted or found it is clear that Deo Datt Sharma was carrying on the same business prior to the incorporation of the assessee as a private limited company and this business was yielding him an average profit of about Rs. 36000 per year. When the assessee, on incorporation, took over the business as a going concern from Deo Datt Sharma it appointed Deo Datt Sharma as a director and placed him in sole charge of the management of the Delhi Branch of the business. In fact, it could not be disputed on behalf of the Revenue that Deo Datt Sharma was looking after the business of the Delhi Branch of the assessee in the same manner in which he was doing when he was sole proprietor of the business and for this work done by him, Deo Datt Sharma was paid salary at the rate of Rs. 1000 per month, commission at the rate of one per cent on the sales of the Delhi Branch and bonus equ ivalent of three months salary. The amount of remuneration paid to Deo Datt Sharma was thus not without consideration; in fact, it was paid for valuable services rendered by Deo Datt Sharma in solely managing the business of the Delhi Branch of the assessee. Now once it is conceded that Deo Datt Sharma was in sole charge and management of the business of the Delhi Branch of the assessee and was rendering full time service to the assessee in that capacity, it is difficult to see how any one could reasonably come to the belief that the payment of remuneration made to him was sham and bogus. Surely, the Income Tax officer could not expect Deo Datt Sharma to devote his full time and energy to the business of the Delhi Branch of the asse ssee without any remuneration whatsoever. The actual remuneration paid to Deo Datt Sharma was in fact found to be genuine and reasonable by the Appellate Assistant Commissioner while disposing of the appeal of the assessee for the asse ssment year 1949-50 as also by the Income Tax Tribunal while disposing of the appeal for the assessment year 1957- 58. It is true that Deo Datt Sharma was the brother-in-law ofthe managing director of the assessee, but t his circumstance cannot by any stretch of imagination lead to an inference that the payment of remuneration to Deo Datt Sharma who was solely managing and looking after the business of the Delhi Branch of the assessee was sham and bogus. Even a close relative who is in management and charge of a business on a full time basis is entitled to be paid remuneration and, in fact, it would be wholly unreasonable to expect him to work free ofRevenue, however, relied strongly on the fact that out of the total amount of remuneration of Rs. 3, 51, 000 received by Deo Datt Sharma and credited to his account with the assessee, he had not withdrawn more than Rs. 4, 000 per year for himself and an aggregate sum of Rs. 2, 37, 55 0 was expended by him in giving a loan toand making gifts to the son, wife and daughters-in-law ofon diverse dates between 31st July, 1957 and 26th December 1961. We fail to see how this fact can lend itself to the inference that the payment of remuneration to Deo Datt Sharma was bogus and not genuine. It is an admitted fact that Deo Datt Sharma was the brother-in-law ofand there is nothing unusual in Deo Datt Sharma giving a loan toor making gift to the son, wife and daughters-in-law ofwho were his close relatives. It is indeed difficult to appreciate how any inference can reasonably be drawn that the payment of remuneration t o Deo Datt Sharma was sham and bogus merely from the manner in which he expended the amount of remuneration received by him, particularly when the persons to whom he gave a loan and made gifts were his close relatives. It is possible that Deo Datt Sharma had other financial resources apart from the remuneration derived by him from the assessee and he therefore decided to give a loan and make gifts to his close relatives out of the remuneration received by him for valuable services re ndered to the assessee. In fact, if he had no other financial resources, it is extremely difficult-one might say, almost impossible-to believe that he worked for the assessee and managed and looked after the business of the Delhi Branch on a full time basis without any remuneration or in any event on a paltry remuneration of Rs. 4, 000 per year when the managing director and other directors who were working like him were getting much more from the assessee and as the proprietor of the busi ness prior to its taking over by the assessee, he was earning an average profit of about Rs. 36, 000/- per year. We are clearly of the view that on these facts the Income Tax Officer could have no reason to believe that the payment of remuneration to Deo Datt Sharma was sham and bogus and that the amount of remuneration paid to him was wrongly allowed as a permissiblemay point out that, in fact, the statement of account of Deo Datt Sharma with the assessee for the relevant accounting year as also the previous years were with the Income Tax Officer at the time of the original assessment and these statements of account clearly showed that out of the amount of remuneration credited to his account, he had made a gift of Rs. 12, 550 to the son ofon 31st July 1957 and given a loan of Rs. 2, 25, 000 toon 25th August, 1958 and the Income Tax Officer was fully aware thatma was theman aging director of the assessee. It is possible and we may assume it in favour of the Revenue, that the subsequent gifts made by Deo Datt Sharma to the wife and daughters-in-law ofere not disclosed to the Income Tax Officer at the time of the original assessment, but these gifts being subsequent to the relevant accounting year, the assessee was not bound to disclose the same to the Income Tax Officer. Moreover, it is difficult to appreciate how the assessee could be said to be under an obligation to disclose to the Income Tax Officer in the course of its assessment as to how a director who was in sole charge of the management of the business of the assessee and who was being paid remunerati on for the services rendered by him to assessee, had utilised the amount of remuneration received by him. We do not think it possible to sustain the conclusion that the assessee omitted or failed to disclose fully and truly any material facts relating to hismust in the circumstances hold that neither of the two conditions necessary for attracting the applicability of section 147(a) was satisfied in the present case and the notice issued by the Income Tax Officer mu st be held to be without jurisdiction. | 1 | 3,870 | 1,620 | ### Instruction:
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business of the Delhi Branch of the assessee and was rendering full time service to the assessee in that capacity, it is difficult to see how any one could reasonably come to the belief that the payment of remuneration made to him was sham and bogus. Surely, the Income Tax officer could not expect Deo Datt Sharma to devote his full time and energy to the business of the Delhi Branch of the asse ssee without any remuneration whatsoever. The actual remuneration paid to Deo Datt Sharma was in fact found to be genuine and reasonable by the Appellate Assistant Commissioner while disposing of the appeal of the assessee for the asse ssment year 1949-50 as also by the Income Tax Tribunal while disposing of the appeal for the assessment year 1957- 58. It is true that Deo Datt Sharma was the brother-in-law of Ganga Saran Sharma, the managing director of the assessee, but t his circumstance cannot by any stretch of imagination lead to an inference that the payment of remuneration to Deo Datt Sharma who was solely managing and looking after the business of the Delhi Branch of the assessee was sham and bogus. Even a close relative who is in management and charge of a business on a full time basis is entitled to be paid remuneration and, in fact, it would be wholly unreasonable to expect him to work free of charge.6. The Revenue, however, relied strongly on the fact that out of the total amount of remuneration of Rs. 3, 51, 000 received by Deo Datt Sharma and credited to his account with the assessee, he had not withdrawn more than Rs. 4, 000 per year for himself and an aggregate sum of Rs. 2, 37, 55 0 was expended by him in giving a loan to Ganga Saran Sharma and making gifts to the son, wife and daughters-in-law of Ganga Saran Sharma on diverse dates between 31st July, 1957 and 26th December 1961. We fail to see how this fact can lend itself to the inference that the payment of remuneration to Deo Datt Sharma was bogus and not genuine. It is an admitted fact that Deo Datt Sharma was the brother-in-law of Ganga Saran Sharma and there is nothing unusual in Deo Datt Sharma giving a loan to Ganga Saran Sharma or making gift to the son, wife and daughters-in-law of Ganga Saran Sharma who were his close relatives. It is indeed difficult to appreciate how any inference can reasonably be drawn that the payment of remuneration t o Deo Datt Sharma was sham and bogus merely from the manner in which he expended the amount of remuneration received by him, particularly when the persons to whom he gave a loan and made gifts were his close relatives. It is possible that Deo Datt Sharma had other financial resources apart from the remuneration derived by him from the assessee and he therefore decided to give a loan and make gifts to his close relatives out of the remuneration received by him for valuable services re ndered to the assessee. In fact, if he had no other financial resources, it is extremely difficult-one might say, almost impossible-to believe that he worked for the assessee and managed and looked after the business of the Delhi Branch on a full time basis without any remuneration or in any event on a paltry remuneration of Rs. 4, 000 per year when the managing director and other directors who were working like him were getting much more from the assessee and as the proprietor of the busi ness prior to its taking over by the assessee, he was earning an average profit of about Rs. 36, 000/- per year. We are clearly of the view that on these facts the Income Tax Officer could have no reason to believe that the payment of remuneration to Deo Datt Sharma was sham and bogus and that the amount of remuneration paid to him was wrongly allowed as a permissible deduction.7. We may point out that, in fact, the statement of account of Deo Datt Sharma with the assessee for the relevant accounting year as also the previous years were with the Income Tax Officer at the time of the original assessment and these statements of account clearly showed that out of the amount of remuneration credited to his account, he had made a gift of Rs. 12, 550 to the son of Ganga Saran Sharma on 31st July 1957 and given a loan of Rs. 2, 25, 000 to Ganga Saran Sharma on 25th August, 1958 and the Income Tax Officer was fully aware that Ganga Saran Sharma was the man aging director of the assessee. It is possible and we may assume it in favour of the Revenue, that the subsequent gifts made by Deo Datt Sharma to the wife and daughters-in-law of Ganga Saran Sharma were not disclosed to the Income Tax Officer at the time of the original assessment, but these gifts being subsequent to the relevant accounting year, the assessee was not bound to disclose the same to the Income Tax Officer. Moreover, it is difficult to appreciate how the assessee could be said to be under an obligation to disclose to the Income Tax Officer in the course of its assessment as to how a director who was in sole charge of the management of the business of the assessee and who was being paid remunerati on for the services rendered by him to assessee, had utilised the amount of remuneration received by him. We do not think it possible to sustain the conclusion that the assessee omitted or failed to disclose fully and truly any material facts relating to his assessment.8. We must in the circumstances hold that neither of the two conditions necessary for attracting the applicability of section 147(a) was satisfied in the present case and the notice issued by the Income Tax Officer mu st be held to be without jurisdiction.9.
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Datt Sharma was thus not without consideration; in fact, it was paid for valuable services rendered by Deo Datt Sharma in solely managing the business of the Delhi Branch of the assessee. Now once it is conceded that Deo Datt Sharma was in sole charge and management of the business of the Delhi Branch of the assessee and was rendering full time service to the assessee in that capacity, it is difficult to see how any one could reasonably come to the belief that the payment of remuneration made to him was sham and bogus. Surely, the Income Tax officer could not expect Deo Datt Sharma to devote his full time and energy to the business of the Delhi Branch of the asse ssee without any remuneration whatsoever. The actual remuneration paid to Deo Datt Sharma was in fact found to be genuine and reasonable by the Appellate Assistant Commissioner while disposing of the appeal of the assessee for the asse ssment year 1949-50 as also by the Income Tax Tribunal while disposing of the appeal for the assessment year 1957- 58. It is true that Deo Datt Sharma was the brother-in-law ofthe managing director of the assessee, but t his circumstance cannot by any stretch of imagination lead to an inference that the payment of remuneration to Deo Datt Sharma who was solely managing and looking after the business of the Delhi Branch of the assessee was sham and bogus. Even a close relative who is in management and charge of a business on a full time basis is entitled to be paid remuneration and, in fact, it would be wholly unreasonable to expect him to work free ofRevenue, however, relied strongly on the fact that out of the total amount of remuneration of Rs. 3, 51, 000 received by Deo Datt Sharma and credited to his account with the assessee, he had not withdrawn more than Rs. 4, 000 per year for himself and an aggregate sum of Rs. 2, 37, 55 0 was expended by him in giving a loan toand making gifts to the son, wife and daughters-in-law ofon diverse dates between 31st July, 1957 and 26th December 1961. We fail to see how this fact can lend itself to the inference that the payment of remuneration to Deo Datt Sharma was bogus and not genuine. It is an admitted fact that Deo Datt Sharma was the brother-in-law ofand there is nothing unusual in Deo Datt Sharma giving a loan toor making gift to the son, wife and daughters-in-law ofwho were his close relatives. It is indeed difficult to appreciate how any inference can reasonably be drawn that the payment of remuneration t o Deo Datt Sharma was sham and bogus merely from the manner in which he expended the amount of remuneration received by him, particularly when the persons to whom he gave a loan and made gifts were his close relatives. It is possible that Deo Datt Sharma had other financial resources apart from the remuneration derived by him from the assessee and he therefore decided to give a loan and make gifts to his close relatives out of the remuneration received by him for valuable services re ndered to the assessee. In fact, if he had no other financial resources, it is extremely difficult-one might say, almost impossible-to believe that he worked for the assessee and managed and looked after the business of the Delhi Branch on a full time basis without any remuneration or in any event on a paltry remuneration of Rs. 4, 000 per year when the managing director and other directors who were working like him were getting much more from the assessee and as the proprietor of the busi ness prior to its taking over by the assessee, he was earning an average profit of about Rs. 36, 000/- per year. We are clearly of the view that on these facts the Income Tax Officer could have no reason to believe that the payment of remuneration to Deo Datt Sharma was sham and bogus and that the amount of remuneration paid to him was wrongly allowed as a permissiblemay point out that, in fact, the statement of account of Deo Datt Sharma with the assessee for the relevant accounting year as also the previous years were with the Income Tax Officer at the time of the original assessment and these statements of account clearly showed that out of the amount of remuneration credited to his account, he had made a gift of Rs. 12, 550 to the son ofon 31st July 1957 and given a loan of Rs. 2, 25, 000 toon 25th August, 1958 and the Income Tax Officer was fully aware thatma was theman aging director of the assessee. It is possible and we may assume it in favour of the Revenue, that the subsequent gifts made by Deo Datt Sharma to the wife and daughters-in-law ofere not disclosed to the Income Tax Officer at the time of the original assessment, but these gifts being subsequent to the relevant accounting year, the assessee was not bound to disclose the same to the Income Tax Officer. Moreover, it is difficult to appreciate how the assessee could be said to be under an obligation to disclose to the Income Tax Officer in the course of its assessment as to how a director who was in sole charge of the management of the business of the assessee and who was being paid remunerati on for the services rendered by him to assessee, had utilised the amount of remuneration received by him. We do not think it possible to sustain the conclusion that the assessee omitted or failed to disclose fully and truly any material facts relating to hismust in the circumstances hold that neither of the two conditions necessary for attracting the applicability of section 147(a) was satisfied in the present case and the notice issued by the Income Tax Officer mu st be held to be without jurisdiction.
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Yogiraj Charity Trust Vs. Commissioner of Income Tax, New Delhi | recent decision of this Court in Sole Trustee Loka Shikshana Trust v. Commissioner of Income Tax, Mysore(2). The Loka Shikshana Trust was engaged in the business of printing and publication of newspaper and journals and the further fact that the activity yielded profit and there were no restrictions on the trust earning profits in the course of its business went to show that the purpose of the trust did not satisfy the requirement that it was one not involving the carrying on of any activity for profit. This Court relied on the decision in All India Spinners Association v. Commissioner of Income Tax( 3) namely, that the charitable purposes exclude objects of private gain.11. The appellant contended that there was no bar on the trust to carry on business under the Act provided the profits of business were utilized only for charitable purpose. The appellant relied on the decision of this Court in C.I.T. v. Krishna Warriar(4) In Krishna Warriars case the trustees were directed to apply 60 per cent of the income of the business vested in the trustees to charitable purposes an d 40 per cent for the benefit of the family. The question was whether 60 per cent of the income was liable to tax under proviso (b) to section 4(3) (i) of the Act on the ground that the entire income was not applied for charitable purposes. The question that arose in that case dealt with the meaning of the expression "part" as used in section 4(3) (i) of the Act that "in the case of profit so held in part only for such purposes the income applied or finally set apart for application there to shall not be included in the total income of the person receiving. Krishna Warriars (supra) case does not deal with the effect of a deed which has charitable as well as non-charitable objects and the trustees have been given the pow er to apply the whole of the trust fund for non-charitable objects excluding charitable objects.The decision in C.I.T. v. Bengal Home Industries Association (1) Hyderabad Stock Exchange Ltd. v. C.I.T.(2) C.I.T. v. Radhaswami Satsang Sabha(3) on which the appellant relied are all applications of the ruling in All India Spinners Association (supra) case that what has to be found out is whether the object clause has any non-charitable object. In the Bengal Home Industries (supra) case, the object was to promote and develop home industries, arts and crafts. The income of the Association was to be applied solely towards the promotion of and carrying out of its objects. No portion of the income could be paid or transferred directly or indirectly by way of dividends to the members. In the case of winding up the surplus could not be distributed to the members but were to be transferred to the institution.12. In the Hyderabad Stock Exchange (supra) case, the aims and objects were not only to further the interests of brokars and dealers but also to assist, regulate and control the trade in securities, to maintain high standards of commercial honour and integrity, to discharge and suppress mal-practices to settle disputes and decide all question of usage, custom or courtesy in the conduct of trade or business. The objects were found beneficial to a section of the public and of general public utility. The profit were not to be distributed to the members but were to be utilized for the promotion of the objects of the Exchange. Therefore, the object was charitable and the income was applied wholly for charitable purposes.13. In Radhaswami Satsang Sabha (supra), case several industrial and commercial concerns were started for the benefit of the Satsanghis. Those were not run for individual profits nor were the profits distributed among the members. The concerns were started in furtherance of its objects of religious and charitable nature.In the present case, the Income Tax Authorities found that the various industrial and commercial concerns were not started by Ram Krishna Dalmia in furtherance of the objects of the trusts. The concerns were started for the purpose of earning profits which were to be distributed to the share-holders who had invested share money in those concerns14. This Court in East India Industries (Madras) Private Limited v. C.I.T.(1) found that one of the objects of the t rust was not for charitable or religious purposes. The object was to manufacture, buy, sell and distribute a pharmaceutical medicinal, chemical and other preparations. The other objects were charitable in nature. The Trust Deed in East India Industries (Madras) Pvt. Limited (supra) case conferred power on the trustees to apply the whole or any part of the trust property or fund for all or any other purposes of the trust. This Court found that there was no special trust and no particular item of property had been burdened with the performance of any specific object of the trust. It was open to the trustees to utilize the income for any one of the objects of the trust to the exclusion of all other objects. It would not be a violation of the trust if the trustees devoted the entire income to the carrying on of a business of manufacture, sale and distribution of pharmaceutical, medicinal and other preparations. This Court held that the trust property could not be said to be wholly for religious or charitable purposes within the meaning of section 4(3) (i) of the Act. The present appeals are all of the type of East India Industries (Madras) Private Limited (supra) case and fall within the ruling in that case.15. The test is that if one of the objects of the trust deed is not of a religious or charitable nature and the trust deed confers full discretion on the trustees to spend the trust funds for an object other than of a religious or charitable nature, the exemption under section 4(3) (i) of the Act is not available to the assessee. (See Lakshmi Narain Nath Trust v. Commissioner of Income Tax(2). | 0[ds]This Court in East India Industries (Madras) Private Limited v. C.I.T.(1) found that one of the objects of the t rust was not for charitable or religious purposes. The object was to manufacture, buy, sell and distribute a pharmaceutical medicinal, chemical and other preparations. The other objects were charitable in nature. The Trust Deed in East India Industries (Madras) Pvt. Limited (supra) case conferred power on the trustees to apply the whole or any part of the trust property or fund for all or any other purposes of the trust. This Court found that there was no special trust and no particular item of property had been burdened with the performance of any specific object of the trust. It was open to the trustees to utilize the income for any one of the objects of the trust to the exclusion of all other objects. It would not be a violation of the trust if the trustees devoted the entire income to the carrying on of a business of manufacture, sale and distribution of pharmaceutical, medicinal and other preparations. This Court held that the trust property could not be said to be wholly for religious or charitable purposes within the meaning of section 4(3) (i) of the Act. The present appeals are all of the type of East India Industries (Madras) Private Limited (supra) case and fall within the ruling in thattest is that if one of the objects of the trust deed is not of a religious or charitable nature and the trust deed confers full discretion on the trustees to spend the trust funds for an object other than of a religious or charitable nature, the exemption under section 4(3) (i) of the Act is not available to the assessee. (See Lakshmi Narain Nath Trust v. Commissioner of Income Tax(2). | 0 | 3,287 | 349 | ### 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:
recent decision of this Court in Sole Trustee Loka Shikshana Trust v. Commissioner of Income Tax, Mysore(2). The Loka Shikshana Trust was engaged in the business of printing and publication of newspaper and journals and the further fact that the activity yielded profit and there were no restrictions on the trust earning profits in the course of its business went to show that the purpose of the trust did not satisfy the requirement that it was one not involving the carrying on of any activity for profit. This Court relied on the decision in All India Spinners Association v. Commissioner of Income Tax( 3) namely, that the charitable purposes exclude objects of private gain.11. The appellant contended that there was no bar on the trust to carry on business under the Act provided the profits of business were utilized only for charitable purpose. The appellant relied on the decision of this Court in C.I.T. v. Krishna Warriar(4) In Krishna Warriars case the trustees were directed to apply 60 per cent of the income of the business vested in the trustees to charitable purposes an d 40 per cent for the benefit of the family. The question was whether 60 per cent of the income was liable to tax under proviso (b) to section 4(3) (i) of the Act on the ground that the entire income was not applied for charitable purposes. The question that arose in that case dealt with the meaning of the expression "part" as used in section 4(3) (i) of the Act that "in the case of profit so held in part only for such purposes the income applied or finally set apart for application there to shall not be included in the total income of the person receiving. Krishna Warriars (supra) case does not deal with the effect of a deed which has charitable as well as non-charitable objects and the trustees have been given the pow er to apply the whole of the trust fund for non-charitable objects excluding charitable objects.The decision in C.I.T. v. Bengal Home Industries Association (1) Hyderabad Stock Exchange Ltd. v. C.I.T.(2) C.I.T. v. Radhaswami Satsang Sabha(3) on which the appellant relied are all applications of the ruling in All India Spinners Association (supra) case that what has to be found out is whether the object clause has any non-charitable object. In the Bengal Home Industries (supra) case, the object was to promote and develop home industries, arts and crafts. The income of the Association was to be applied solely towards the promotion of and carrying out of its objects. No portion of the income could be paid or transferred directly or indirectly by way of dividends to the members. In the case of winding up the surplus could not be distributed to the members but were to be transferred to the institution.12. In the Hyderabad Stock Exchange (supra) case, the aims and objects were not only to further the interests of brokars and dealers but also to assist, regulate and control the trade in securities, to maintain high standards of commercial honour and integrity, to discharge and suppress mal-practices to settle disputes and decide all question of usage, custom or courtesy in the conduct of trade or business. The objects were found beneficial to a section of the public and of general public utility. The profit were not to be distributed to the members but were to be utilized for the promotion of the objects of the Exchange. Therefore, the object was charitable and the income was applied wholly for charitable purposes.13. In Radhaswami Satsang Sabha (supra), case several industrial and commercial concerns were started for the benefit of the Satsanghis. Those were not run for individual profits nor were the profits distributed among the members. The concerns were started in furtherance of its objects of religious and charitable nature.In the present case, the Income Tax Authorities found that the various industrial and commercial concerns were not started by Ram Krishna Dalmia in furtherance of the objects of the trusts. The concerns were started for the purpose of earning profits which were to be distributed to the share-holders who had invested share money in those concerns14. This Court in East India Industries (Madras) Private Limited v. C.I.T.(1) found that one of the objects of the t rust was not for charitable or religious purposes. The object was to manufacture, buy, sell and distribute a pharmaceutical medicinal, chemical and other preparations. The other objects were charitable in nature. The Trust Deed in East India Industries (Madras) Pvt. Limited (supra) case conferred power on the trustees to apply the whole or any part of the trust property or fund for all or any other purposes of the trust. This Court found that there was no special trust and no particular item of property had been burdened with the performance of any specific object of the trust. It was open to the trustees to utilize the income for any one of the objects of the trust to the exclusion of all other objects. It would not be a violation of the trust if the trustees devoted the entire income to the carrying on of a business of manufacture, sale and distribution of pharmaceutical, medicinal and other preparations. This Court held that the trust property could not be said to be wholly for religious or charitable purposes within the meaning of section 4(3) (i) of the Act. The present appeals are all of the type of East India Industries (Madras) Private Limited (supra) case and fall within the ruling in that case.15. The test is that if one of the objects of the trust deed is not of a religious or charitable nature and the trust deed confers full discretion on the trustees to spend the trust funds for an object other than of a religious or charitable nature, the exemption under section 4(3) (i) of the Act is not available to the assessee. (See Lakshmi Narain Nath Trust v. Commissioner of Income Tax(2).
### Response:
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### Explanation:
This Court in East India Industries (Madras) Private Limited v. C.I.T.(1) found that one of the objects of the t rust was not for charitable or religious purposes. The object was to manufacture, buy, sell and distribute a pharmaceutical medicinal, chemical and other preparations. The other objects were charitable in nature. The Trust Deed in East India Industries (Madras) Pvt. Limited (supra) case conferred power on the trustees to apply the whole or any part of the trust property or fund for all or any other purposes of the trust. This Court found that there was no special trust and no particular item of property had been burdened with the performance of any specific object of the trust. It was open to the trustees to utilize the income for any one of the objects of the trust to the exclusion of all other objects. It would not be a violation of the trust if the trustees devoted the entire income to the carrying on of a business of manufacture, sale and distribution of pharmaceutical, medicinal and other preparations. This Court held that the trust property could not be said to be wholly for religious or charitable purposes within the meaning of section 4(3) (i) of the Act. The present appeals are all of the type of East India Industries (Madras) Private Limited (supra) case and fall within the ruling in thattest is that if one of the objects of the trust deed is not of a religious or charitable nature and the trust deed confers full discretion on the trustees to spend the trust funds for an object other than of a religious or charitable nature, the exemption under section 4(3) (i) of the Act is not available to the assessee. (See Lakshmi Narain Nath Trust v. Commissioner of Income Tax(2).
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Consortium Of Titagarh Firema Adler S.P.A.- Titagarh Wagons Ltd, Through Authorised Signatory Titaga Vs. Nagpur Metro Rail Corporation Ltd | all necessary and essential decisions and functions for the subsidiaries as well. According to the 1st respondent, the term "Government owned entity" would include a government owned entity and its subsidiaries and there can be no matter of doubt that the identity of the entities as belonging to the Government when established can be treated as a Government owned entity and the experience claimed by the parent of the subsidiaries can be taken into consideration. Learned senior counsel for the 1st respondent has drawn our attention to the "lifting of corporate veil" principle or doctrine of "piercing the veil" and in that context, reliance has been placed on Littlewoods Mail Order Stores, Ltd. v. McGregor, (1969) 3 All ER 855, DHN Food Distributors Ltd. and others v. London Borough of Tower Hamlets, (1976) 3 All ER 462 and Harold Holdsworth & Co. (Wakefield) Ld. v. Caddies, (1955) 1 WLR 352. Learned senior counsel has also placed reliance upon the principles stated in Renusagar Power Co. (supra) that have been reiterated in New Horizons Ltd. (supra). In the written submission filed on behalf of the 1st respondent, the relevant paragraphs from Renusagar Power Co. (supra) have been copiously quoted. It is also urged that in the current global economic regime the multinational corporations conduct their business through their subsidiaries and, therefore, there cannot be a hyper-technical approach that eligibility of the principal cannot be taken cognizance of when it speaks of the experience of the subsidiaries. It is also contended by Mr. Subramaniam that in the context of fraud or evasion of legal obligations, the doctrine of "piercing the veil" or "lifting of the corporate veil" can be applied but the said principle cannot be taken recourse to in a matter of the present nature.33. With regard to the satisfaction of the 1st respondent, it has been highlighted before us that the said respondent had thoroughly examined the bid documents and satisfied itself about of the capability, experience and expertise of the respondent No. 2 and there has been a thorough analysis of the technical qualification of the respondent No. 2 by the independent General Consultant and the reports of the Appraisal and Tender Committee of the 1st respondent and also the no-objection has been received from KfW Development Bank, Germany which is funding the entire project. Narrating the experience of the respondent No. 1, it has been stated in the written submission filed on behalf of the 1st respondent:"36. That it is further clear from the record that besides being the lowest bidder, the experience of R 2 in supplying Metro Trains across the world exceeds the Petitioners experience by a huge margin. Where for clause 12, R 2 has shown a figure of 594 Metro Cars, Petitioner has shown only 72 Cars; and for clause 12.1 where R 2 has shown 432 Cars, Petitioner has again shown only 72 Cars. This vast experience of R 2 would be beneficial for the project and would further public interest.37. That R 1 without any malice, or malafide has treated R 2 along with its 100% subsidiaries as one entity. This understanding of the clause has been at the ends of both parties viz. R 1 and R 2, who were ad idem vis-a-vis the eligibility of the parent company to bid using the experience and executing the contract through its various 100% wholly owned subsidiaries.38. That the above understanding of R 1 of treating R 2 along with its 100% subsidiaries is supported by the understanding of the Delhi Metro Rail Corporation Ltd., which has on a similarly, if not same, worded bid-document granted the tender/agreement to R 2, which had even there bid as a parent company claiming experience of and execution through 100% wholly owned subsidiaries.39. That moreover, there is no bar, whatsoever, express or implied, in the tender document to treat the parent company along with its 100% wholly owned subsidiaries as one entity. Therefore, the scope of judicial review should be limited in adjudging the decision taken by R 1 in the best interest of the project, and thereby, the public.40. That arguendo, no project, whatsoever, has been caused to the project or to other bidders including the Petitioner by the above understanding of the tender conditions by R 1. It is humbly submitted that R 2 fulfilled all the technical requirements. The bid-document itself provided for bidding as a consortium, and did not require in such a case fulfilment of any material condition, which if not fulfilled would prejudice any parties or the project. Moreover, the scheme of the bid-document is such that it itself provides for a Parent Company Guarantee. According to this Parent Company Guarantee Form, a parent company would have to perform the works under the agreement in case the subsidiary failed. Therefore, the objections raised by the Petitioner are hyper-technical and have been raised only to stall the project once it was found to be unsuccessful."34. As is noticeable, there is material on record that the respondent No. 2, a Government company, is the owner of the subsidiaries companies and subsidiaries companies have experience. The 1st respondent, as it appears, has applied its commercial wisdom in the understanding and interpretation which has been given the concurrence by the concerned Committee and the financing bank. We are disposed to think that the concept of "Government owned entity" cannot be conferred a narrow construction. It would include its subsidiaries subject to the satisfaction of the owner. There need not be a formation of a joint venture or a consortium. In the obtaining fact situation, the interpretation placed by the 1st respondent in the absence of any kind of perversity, bias or mala fide should not be interfered with in exercise of power of judicial review. Decision taken by the 1st respondent, as is perceptible, is keeping in view the commercial wisdom and the expertise and it is no way against the public interest. Therefore, we concur with the view expressed by the High Court. | 0[ds]23. As the uncurtained facts would reveal, on 17.02.2016 the appellant wrote to the 1st respondent seeking amendment to the "operation performance clause", i.e., Clause 12.1 of the Annexure III-A (PQ-Initial Filter). According to the said Clause, the bidder is required to have satisfactorily delivered at least 30 metro cars outside the country of manufacture or delivered in India. The amendment that was sought related to inclusion of the condition that delivery to any of the G8 countries should also be treated as acceptable. Such an amendment was for the appellants merged entity, which gave it the requisite experience, had manufactured and delivered metro cars only in G8 countries. The request of the appellant was accepted by the employer and supply to any of the G8 countries was included as permissible. That apart, the appellants request seeking extension of time to bid was also acceded to and accordingly time was extended and final date of submission was declared to be 08.07.2016. The time that was fixed at 4 p.m. was extended till 7 p.m. at the request made by the appellant. The purpose of narrating these aspects is only to highlight that the allegations of mala fide are farther from the truth.The core issue, as we perceive, pertains to acceptance of the technical bid of the respondent No. 2 by the 1st respondent and we are required to address the same solely on the touchstone of eligibility criteria regard being had to the essential conditions.The decision on other technical aspects, as we are advised at present, is best left to the experts. We do not intend to enter into the said domain though a feeble attempt has been made on the said count.Before we proceed to deal with the concept of single entity and the discretion used by the 1st respondent, we intend to deal with role of the Court when the eligibility criteria is required to be scanned and perceived by the Court. In Montecarlo Ltd. (supra), the Court referred to TATA Cellular (supra) wherein certain principles, namely, the modern trend pointing to judicial restraint on administrative action; the role of the court is only to review the manner in which the decision has been taken; the lack of expertise on the part of the court to correct the administrative decision; the conferment of freedom of contract on the Government which recognizes a fair play in the joints as a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere, were laid down. It was also stated in the said case that the administrative decision must not only be tested by the application of Wednesbury principle of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides. The two-Judge Bench took note of the fact that in Jagdish Mandal (supra) it has been held that, if the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.Having stated this, we have to see, how the 1st respondent has perceived the offer of the respondent No. 2 in the backdrop of the tender conditions. It is not in dispute that the project in question has been funded by KfW Development Bank, Germany and as per Clause ITB 35.8, it is necessary at all stages of bid evaluation and contract award has to be subject to no-objection from KfW Development Bank. Emphasis has been laid on the approach of the High Court which has taken note of the fact that the respondent No. 2 had been awarded the tender by the Delhi Metro Rail Corporation. It has also been highlighted that the papers relating to the financial bid along with report were forwarded to KfW which gave its no-objection. Be it noted, the appellants have been quite critical about the acceptance of the offer and the 1st respondent has given a number of reasons to justify the same. As indicated earlier, we are only concerned with the eligibility criteria and not with the fiscal aspect.32. Respondent No. 2, as is evident, is a company owned by the Peoples Republic of China and, therefore, it comes within the ambit of Clause 4.1 of the bid document as a Government owned entity. We have already reproduced the said clause in earlier part of the judgment. As perceived by the 1st respondent, a single entity can bid for itself and it can consist of its constituents which are wholly owned subsidiaries and they may have experience in relation to the project. That apart, as is understood by the said respondent, where the singular or unified entity claims that as a consequence of merger, all the subsidiaries form a homogenous pool under its immediate control in respect of rights, liabilities, assets and obligations, the integrity of the singular entity as owning such rights, assets and liabilities cannot be ignored and must be given effect. While judging the eligibility criteria of the second respondent, the 1st respondent has scanned Article164 of the Articles of Association of the respondent No. 2 which are submitted along with the bid from which it is evincible that the Board of Directors of the respondent No. 2 has been entrusted with the authority and responsibility to discharge all necessary and essential decisions and functions for the subsidiaries as well. According to the 1st respondent, the term "Government owned entity" would include a government owned entity and its subsidiaries and there can be no matter of doubt that the identity of the entities as belonging to the Government when established can be treated as a Government owned entity and the experience claimed by the parent of the subsidiaries can be taken into consideration.With regard to the satisfaction of the 1st respondent, it has been highlighted before us that the said respondent had thoroughly examined the bid documents and satisfied itself about of the capability, experience and expertise of the respondent No. 2 and there has been a thorough analysis of the technical qualification of the respondent No. 2 by the independent General Consultant and the reports of the Appraisal and Tender Committee of the 1st respondent and also the no-objection has been received from KfW Development Bank, Germany which is funding the entire project. Narrating the experience of the respondent No. 1, it has been stated in the written submission filed on behalf of the 1stAs is noticeable, there is material on record that the respondent No. 2, a Government company, is the owner of the subsidiaries companies and subsidiaries companies have experience. The 1st respondent, as it appears, has applied its commercial wisdom in the understanding and interpretation which has been given the concurrence by the concerned Committee and the financing bank. We are disposed to think that the concept of "Government owned entity" cannot be conferred a narrow construction. It would include its subsidiaries subject to the satisfaction of the owner. There need not be a formation of a joint venture or a consortium. In the obtaining fact situation, the interpretation placed by the 1st respondent in the absence of any kind of perversity, bias or mala fide should not be interfered with in exercise of power of judicial review. Decision taken by the 1st respondent, as is perceptible, is keeping in view the commercial wisdom and the expertise and it is no way against the public interest. Therefore, we concur with the view expressed by the High Court. | 0 | 10,521 | 1,382 | ### 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:
all necessary and essential decisions and functions for the subsidiaries as well. According to the 1st respondent, the term "Government owned entity" would include a government owned entity and its subsidiaries and there can be no matter of doubt that the identity of the entities as belonging to the Government when established can be treated as a Government owned entity and the experience claimed by the parent of the subsidiaries can be taken into consideration. Learned senior counsel for the 1st respondent has drawn our attention to the "lifting of corporate veil" principle or doctrine of "piercing the veil" and in that context, reliance has been placed on Littlewoods Mail Order Stores, Ltd. v. McGregor, (1969) 3 All ER 855, DHN Food Distributors Ltd. and others v. London Borough of Tower Hamlets, (1976) 3 All ER 462 and Harold Holdsworth & Co. (Wakefield) Ld. v. Caddies, (1955) 1 WLR 352. Learned senior counsel has also placed reliance upon the principles stated in Renusagar Power Co. (supra) that have been reiterated in New Horizons Ltd. (supra). In the written submission filed on behalf of the 1st respondent, the relevant paragraphs from Renusagar Power Co. (supra) have been copiously quoted. It is also urged that in the current global economic regime the multinational corporations conduct their business through their subsidiaries and, therefore, there cannot be a hyper-technical approach that eligibility of the principal cannot be taken cognizance of when it speaks of the experience of the subsidiaries. It is also contended by Mr. Subramaniam that in the context of fraud or evasion of legal obligations, the doctrine of "piercing the veil" or "lifting of the corporate veil" can be applied but the said principle cannot be taken recourse to in a matter of the present nature.33. With regard to the satisfaction of the 1st respondent, it has been highlighted before us that the said respondent had thoroughly examined the bid documents and satisfied itself about of the capability, experience and expertise of the respondent No. 2 and there has been a thorough analysis of the technical qualification of the respondent No. 2 by the independent General Consultant and the reports of the Appraisal and Tender Committee of the 1st respondent and also the no-objection has been received from KfW Development Bank, Germany which is funding the entire project. Narrating the experience of the respondent No. 1, it has been stated in the written submission filed on behalf of the 1st respondent:"36. That it is further clear from the record that besides being the lowest bidder, the experience of R 2 in supplying Metro Trains across the world exceeds the Petitioners experience by a huge margin. Where for clause 12, R 2 has shown a figure of 594 Metro Cars, Petitioner has shown only 72 Cars; and for clause 12.1 where R 2 has shown 432 Cars, Petitioner has again shown only 72 Cars. This vast experience of R 2 would be beneficial for the project and would further public interest.37. That R 1 without any malice, or malafide has treated R 2 along with its 100% subsidiaries as one entity. This understanding of the clause has been at the ends of both parties viz. R 1 and R 2, who were ad idem vis-a-vis the eligibility of the parent company to bid using the experience and executing the contract through its various 100% wholly owned subsidiaries.38. That the above understanding of R 1 of treating R 2 along with its 100% subsidiaries is supported by the understanding of the Delhi Metro Rail Corporation Ltd., which has on a similarly, if not same, worded bid-document granted the tender/agreement to R 2, which had even there bid as a parent company claiming experience of and execution through 100% wholly owned subsidiaries.39. That moreover, there is no bar, whatsoever, express or implied, in the tender document to treat the parent company along with its 100% wholly owned subsidiaries as one entity. Therefore, the scope of judicial review should be limited in adjudging the decision taken by R 1 in the best interest of the project, and thereby, the public.40. That arguendo, no project, whatsoever, has been caused to the project or to other bidders including the Petitioner by the above understanding of the tender conditions by R 1. It is humbly submitted that R 2 fulfilled all the technical requirements. The bid-document itself provided for bidding as a consortium, and did not require in such a case fulfilment of any material condition, which if not fulfilled would prejudice any parties or the project. Moreover, the scheme of the bid-document is such that it itself provides for a Parent Company Guarantee. According to this Parent Company Guarantee Form, a parent company would have to perform the works under the agreement in case the subsidiary failed. Therefore, the objections raised by the Petitioner are hyper-technical and have been raised only to stall the project once it was found to be unsuccessful."34. As is noticeable, there is material on record that the respondent No. 2, a Government company, is the owner of the subsidiaries companies and subsidiaries companies have experience. The 1st respondent, as it appears, has applied its commercial wisdom in the understanding and interpretation which has been given the concurrence by the concerned Committee and the financing bank. We are disposed to think that the concept of "Government owned entity" cannot be conferred a narrow construction. It would include its subsidiaries subject to the satisfaction of the owner. There need not be a formation of a joint venture or a consortium. In the obtaining fact situation, the interpretation placed by the 1st respondent in the absence of any kind of perversity, bias or mala fide should not be interfered with in exercise of power of judicial review. Decision taken by the 1st respondent, as is perceptible, is keeping in view the commercial wisdom and the expertise and it is no way against the public interest. Therefore, we concur with the view expressed by the High Court.
### Response:
0
### Explanation:
We do not intend to enter into the said domain though a feeble attempt has been made on the said count.Before we proceed to deal with the concept of single entity and the discretion used by the 1st respondent, we intend to deal with role of the Court when the eligibility criteria is required to be scanned and perceived by the Court. In Montecarlo Ltd. (supra), the Court referred to TATA Cellular (supra) wherein certain principles, namely, the modern trend pointing to judicial restraint on administrative action; the role of the court is only to review the manner in which the decision has been taken; the lack of expertise on the part of the court to correct the administrative decision; the conferment of freedom of contract on the Government which recognizes a fair play in the joints as a necessary concomitant for an administrative body functioning in an administrative sphere or quasi-administrative sphere, were laid down. It was also stated in the said case that the administrative decision must not only be tested by the application of Wednesbury principle of reasonableness but also must be free from arbitrariness not affected by bias or actuated by mala fides. The two-Judge Bench took note of the fact that in Jagdish Mandal (supra) it has been held that, if the decision relating to award of contract is bona fide and is in public interest, courts will not, in exercise of power of judicial review, interfere even if a procedural aberration or error in assessment or prejudice to a tenderer, is made out.Having stated this, we have to see, how the 1st respondent has perceived the offer of the respondent No. 2 in the backdrop of the tender conditions. It is not in dispute that the project in question has been funded by KfW Development Bank, Germany and as per Clause ITB 35.8, it is necessary at all stages of bid evaluation and contract award has to be subject to no-objection from KfW Development Bank. Emphasis has been laid on the approach of the High Court which has taken note of the fact that the respondent No. 2 had been awarded the tender by the Delhi Metro Rail Corporation. It has also been highlighted that the papers relating to the financial bid along with report were forwarded to KfW which gave its no-objection. Be it noted, the appellants have been quite critical about the acceptance of the offer and the 1st respondent has given a number of reasons to justify the same. As indicated earlier, we are only concerned with the eligibility criteria and not with the fiscal aspect.32. Respondent No. 2, as is evident, is a company owned by the Peoples Republic of China and, therefore, it comes within the ambit of Clause 4.1 of the bid document as a Government owned entity. We have already reproduced the said clause in earlier part of the judgment. As perceived by the 1st respondent, a single entity can bid for itself and it can consist of its constituents which are wholly owned subsidiaries and they may have experience in relation to the project. That apart, as is understood by the said respondent, where the singular or unified entity claims that as a consequence of merger, all the subsidiaries form a homogenous pool under its immediate control in respect of rights, liabilities, assets and obligations, the integrity of the singular entity as owning such rights, assets and liabilities cannot be ignored and must be given effect. While judging the eligibility criteria of the second respondent, the 1st respondent has scanned Article164 of the Articles of Association of the respondent No. 2 which are submitted along with the bid from which it is evincible that the Board of Directors of the respondent No. 2 has been entrusted with the authority and responsibility to discharge all necessary and essential decisions and functions for the subsidiaries as well. According to the 1st respondent, the term "Government owned entity" would include a government owned entity and its subsidiaries and there can be no matter of doubt that the identity of the entities as belonging to the Government when established can be treated as a Government owned entity and the experience claimed by the parent of the subsidiaries can be taken into consideration.With regard to the satisfaction of the 1st respondent, it has been highlighted before us that the said respondent had thoroughly examined the bid documents and satisfied itself about of the capability, experience and expertise of the respondent No. 2 and there has been a thorough analysis of the technical qualification of the respondent No. 2 by the independent General Consultant and the reports of the Appraisal and Tender Committee of the 1st respondent and also the no-objection has been received from KfW Development Bank, Germany which is funding the entire project. Narrating the experience of the respondent No. 1, it has been stated in the written submission filed on behalf of the 1stAs is noticeable, there is material on record that the respondent No. 2, a Government company, is the owner of the subsidiaries companies and subsidiaries companies have experience. The 1st respondent, as it appears, has applied its commercial wisdom in the understanding and interpretation which has been given the concurrence by the concerned Committee and the financing bank. We are disposed to think that the concept of "Government owned entity" cannot be conferred a narrow construction. It would include its subsidiaries subject to the satisfaction of the owner. There need not be a formation of a joint venture or a consortium. In the obtaining fact situation, the interpretation placed by the 1st respondent in the absence of any kind of perversity, bias or mala fide should not be interfered with in exercise of power of judicial review. Decision taken by the 1st respondent, as is perceptible, is keeping in view the commercial wisdom and the expertise and it is no way against the public interest. Therefore, we concur with the view expressed by the High Court.
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THE KARAD URBAN COOPERATIVE BANK LTD Vs. SWWAPNIL BHINGARDEVAY & ORS | total pay-out as per the Resolution Plan is Rs. 29.74 crores. 37. This meant that the workers and employees of the corporate debtor were to be paid 100% of their dues; that all statutory dues would be cleared 100% and that the financial creditors who constituted the CoC were to be paid 60% of their dues. 38. It offends common sense to think that a resolution applicant who had the benefit of leakage of information relating to liquidation value would quote a figure of Rs. 29.74 crores as the total pay-out, as against a liquidation value of Rs. 13.53 crores. The question of breach of confidentiality and leakage of confidential information can easily be tested on the touchstone of the benefit that accrued to the party who got the information. In the case on hand, no benefit accrued to the SRA. 39. It is obvious from the material on record that the Promoter/Director of the Corporate Debtor has tried to take advantage of two small mistakes on the part of the SRA, one of which was a typographical error mentioning the date 09th February 2019 at the bottom of the self-declaration and the other, which happened as a matter of coincidence. The NCLAT appears to have made a mountain out of a molehill and has recorded a finding even beyond the pleadings in the Memorandum of Appeal. Hence, the second ground on which the NCLAT was convinced to pass the impugned order, is legally and factually untenable. 40. The third ground on which NCLAT proceeded, related to the ethanol plant and machinery. We have already dealt with this issue in detail, while dealing with the first issue. As stated therein, the SRA admittedly did not make his Resolution Plan on the strength of the ethanol plant and machinery in question. The threat looming large over the availability of the ethanol plant and machinery has admittedly been taken note of by the SRA and the CoC. The Resolution Plan does not give an indication anywhere that without this plant and machinery the whole resolution plan will fail. In paragraph 8.04 of the Resolution Plan, the SRA has undertaken to continue the operations in the normal course of business. It is a commercial decision that they have taken. The corporate debtor cannot cry wolf over the said decision. Therefore, the third ground on which NCLAT chose to interfere, is also bound to be rejected. 41. The last ground revolves around the advertisement issued by the Resolution Professional on 30.03.2018. NCLAT holds that the advertisement was not in conformity with Regulation 36A of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and as per Form G of the Schedule. 42. But the conclusions reached by NCLAT in this regard cannot hold water for two reasons. If NCLAT was convinced that the very process of inviting Expression of Interest was vitiated, NCLAT should have issued a direction to start the process afresh all over again by issuing a fresh advertisement. NCLAT did not do this and the person who raised this point is not on appeal. 43. In any case, it does not lie in the mouth of the Promoter/Director of the corporate debtor to raise any issue in this regard. It is seen from the Minutes of the 2 nd Meeting of the Committee of Creditors that the Promoter/Director of the corporate debtor attended the meeting held on 27.03.2018. In Item No. 3 of the Agenda for the said meeting, the draft of the Invitation for Expression of Interest was approved. The Promoter/Director did not raise any objections either on 27.03.2018 in the meeting in which the draft was approved or at any time thereafter, until the approval of the Resolution Plan. 44. The Promoter/Director of the corporate debtor who was the appellant before NCLAT attended the 3 rd meeting of the CoC on 15.09.2018, the 4 th meeting of the CoC held on 12.10.2018 and the 5 th meeting of the CoC held on 26.11.2018. He did not raise any whisper about the contents of the advertisement. Even when the very same Promoter/Director of the corporate debtor went before the High Court of Judicature at Bombay by way of a writ petition challenging the orders of NCLT dated 01.01.2018 and 06.03.2018, his focus was on his own application under Section 10 of the Insolvency and Bankruptcy Code. His grievance before the High Court was that his own application under Section 10 was dumped by the NCLT and the application of the financial creditor was admitted thereafter. In fact the conduct of the Promoter/Director of the corporate debtor came to adverse notice before the Bombay High Court. 45. Regulation 36A was inserted only with effect from 06.02.2018 under Notification No. IBBI/2017-18/GN/REG024 dated 06.02.2018. It underwent a change under Notification No. IBBI/2018-19/GN/REG031 dated 03.07.2018, with effect from 04.07.2018. Regulation 36A, as it stood during the period from 06.02.2018 to 04.07.2018, did not mandate the publication of the invitation of Resolution Plans, either in Form G or otherwise, in newspapers. It is only the amended Regulation 36A, which came into effect from 04.07.2018, that requires the publication of Form G in newspapers. Therefore, the publication in newspapers made by the Resolution Professional, in the case on hand, on 30.03.2018, was something that was statutorily not required of him and hence the Promoter/Director of the corporate debtor cannot take advantage of the amendment that came later, to attack the advertisement. The unamended and amended Regulation 36A are provided in a tabular column for easy comparison and appreciation. table 46. The second meeting of the Committee of Creditors was held on 27.03.2018. The advertisement was approved in the said meeting. It was the unamended Regulation 36A that was in force at that time. This has not been appreciated by NCLAT. Therefore, the NCLAT was wrong in its approach even in this regard. 47. Therefore, in fine, the impugned order of NCLAT is flawed and hence, liable to be set aside. | 1[ds]On the first question regarding the viability and feasibility of a resolution plan, the law is now well-settled. In K. Sashidhar (supra), it was held as follows:(i) There is an intrinsic assumption that financial creditors are fully informed about the viability of the corporate debtor and feasibility of the proposed resolution plan…The opinion on the subject matter expressed by them after due deliberations in the CoC meetings through voting, as per voting shares, is a collective business decision. The legislature, consciously, has not provided any ground to challenge the commercial wisdom of the individual financial creditors or their collective decision before the adjudicating authority. That is made nonjusticiable.(paragraph 52)(ii) The provisions investing jurisdiction and authority in NCLT or NCLAT as noticed earlier, have not made the commercial decision exercised by CoC of not approving the resolution plan or rejecting the same, justiciable. This position is reinforced from the limited grounds specified for instituting an appeal that too against an order approving a resolution plan under Section 31. (paragraph 57)(iii) Further, the jurisdiction bestowed upon the appellate authority (NCLAT) is also expressly circumscribed. It can examine the challenge only in relation to the grounds specified in Section 61(3) of the I&B Code, which is limited to matters other than enquiry into the autonomy or commercial wisdom of the dissenting financial creditors. (paragraph 58)(iv) At best, the adjudicating authority (NCLT) may cause an enquiry into the approved resolution plan on limited grounds referred to in Section 30(2) read with Section 31(1) of the I&B Code. It cannot make any other inquiry nor is competent to issue any direction in relation to the exercise of commercial wisdom of the financial creditors — be it for approving, rejecting or abstaining, as the case may be. Even the inquiry before the appellate authority (NCLAT) is limited to the grounds under Section 61(3) of the I&B Code. It does not postulate jurisdiction to undertake scrutiny of the justness of the opinion expressed by financial creditors at the time of voting. (paragraph 64)Thereafter, in Essar Steel India Ltd. (supra), this Court held:(i) Thus, it is clear that the limited judicial review available, which can in no circumstance trespass upon a business decision of the majority of the Committee of Creditors, has to be within the four corners of Section 30(2) of the Code, insofar as the Adjudicating Authority is concerned, and Section 32 read with Section 61(3) of the Code, insofar as the Appellate Tribunal is concerned. (paragraph 48)(iv) Thus, while the Adjudicating Authority cannot interfere on merits with the commercial decision taken by the Committee of Creditors, the limited judicial review available is to see that the Committee of Creditors has taken into account the fact that the corporate debtor needs to keep going as a going concern during the insolvency resolution process; that it needs to maximise the value of its assets; and that the interests of all stakeholders including operational creditors has been taken care of. (paragraph 54)13. The principles laid down in the aforesaid decisions, make one thing very clear. If all the factors that need to be taken into account for determining whether or not the corporate debtor can be kept running as a going concern have been placed before the Committee of Creditors and the CoC has taken a conscious decision to approve the resolution plan, then the adjudicating authority will have to switch over to the hands off mode. It is not the case of the corporate debtor or its promoter/Director or anyone else that some of the factors which are crucial for taking a decision regarding the viability and feasibility, were not placed before the CoC or the Resolution Professional.The only basis for the corporate debtor to raise the issue of viability and feasibility is that the ownership and possession of the ethanol plant and machinery is the subject matter of another dispute and that the resolution plan does not take care of the contingency where the said plant and machinery may not eventually be available to the Successful Resolution Applicant.14. But the aforesaid argument, coming as it does from the Promoter/Director of the corporate debtor is like the wolf shedding tears for the lamb getting drenched in rain. The records very clearly show that the Successful Resolution Applicant, the Resolution Professional and the financial creditor were fully aware of the said issue. The order passed by the NCLAT in Company Appeal (AT) (Insolvency) No.897 of 2019 on 16.12.2019 shows that the possession of the ethanol plant and machinery was restored to Sarvadnya Industries Pvt. Ltd., in the appeal to which the Successful Resolution Applicant was also a party. The Successful Resolution Applicant also appears to have offered to Janata Sahkari Bank to purchase the said plant and machinery. In the appeal before the NCLAT out of which the present Civil Appeals arise, Sarvadnya Industries Pvt. Ltd. which claims ownership of the ethanol plant and machinery, were also a party.16. Therefore, the fact that there was an issue with regard to the ethanol plant and machinery, had been taken note of by the Resolution Professional, the Committee of Creditors and the Successful Resolution Applicant. Once all these three parties have taken note of the said fact and taken a conscious decision to go ahead with the Resolution Plan, it cannot be stated that the question of viability and feasibility was not examined in the proper perspective.17. Therefore, the first ground and actually the main ground on which NCLAT interfered with the decision of the NCLT to approve the Resolution Plan, is wholly untenable, misconceived and unjustified.18. In fact, our discussion could have ended here without going into the other grounds, for one simple reason. Though the Director/Promoter of the corporate debtor, who was the appellant before the NCLAT, raised other grounds apart from viability and feasibility, NCLAT issued limited notice in the appeal, on 12.09.2019, only with regard to viability and feasibility. Even in the impugned order dated 02.06.2020, it is made clear in the last sentence of paragraph 1 that this appeal on 12.09.2019 was admitted to limited extent of examining viability and feasibility of the Plan.19. It is true that in the last paragraph of the impugned order, namely paragraph 14, the Appellate Tribunal holds that the CIRP suffered from material irregularities and the Resolution Plan approved suffers from feasibility and viability. But then the operative portion of the impugned order does not take the findings on other issues to their logical end. For instance, the Tribunal holds that the advertisement inviting Expression of Interest itself was defective and that there was breach of confidentiality in as much as the liquidation value appears to have been leaked out. These findings should have taken the Appellate Tribunal to the point of setting aside the entire process and directing the Resolution Professional to start the process all over again from the stage of issue of a fresh advertisement. The NCLAT did not do so. In the operative portion, NCLAT merely remanded the matter back to the Adjudicating Authority with a direction to send back the Resolution Plan to the Committee of Creditors to resubmit the plan after taking into consideration the law laid down by this Court.20. In other words, the reliefs that would normally flow in the light of the findings with regard to breach of confidentiality and defective Invitation to Offer, were not granted by NCLAT. The Director/Promoter of the corporate debtor has not come up with any appeal against the failure of NCLAT to grant appropriate reliefs, connectable to the aforesaid findings. The Director/Promoter of the corporate debtor is obviously happy with the limited relief, if at all it is one, granted to him for the resubmission of the Resolution Plan.22. By its common order dated 01.08.2019, the NCLT dismissed MA Nos.1509 and 2104 of 2019, filed respectively by the operational creditor (lessor of the ethanol plant) and the Promoter/Director of the corporate debtor. But the application filed by the Resolution Professional was allowed.23. But the Director/Promoter of the corporate debtor filed only one appeal and the Memorandum of Appeal suggests that the Director/Promoter of the corporate debtor prayed for two reliefs, namely (i) to set aside the approval of the Resolution Plan, and (ii) to consider his own resolution plan.24. By the order impugned in the present Civil Appeals, the NCLAT granted only a limited relief, as can be seen from the operative portion of the order of NCLAT which we have extracted earlier.25. Therefore, in the light of the above facts, the consideration of all other issues, such as breach of confidentiality and defective Invitation to Offer would only be academic, as NCLAT did not grant any relief to the Promoter/Director of the corporate debtor, which could logically flow out of those other grounds.28. According to the Director/Promoter of the corporate debtor, the self-declaration signed by the Resolution Applicant, and which forms part of the Resolution Plan, bears the date 9 th February 2019. This document mentions the liquidation value as Rs. 13.53 crores. It was the same value as obtained by the Resolution Professional. It is the contention of the Director/ Promoter of the corporate debtor that the Resolution Professional wrote an email on 07.02.2019 itself (2 days before the submission of the Resolution Plan by the SRA), asking for clarification as to how the liquidation value matched. This, according to the Director of the corporate debtor, was proof enough to show that there was not merely a leakage of information, but also an attempt to cover-up.29. But we are unable to accept the above contention.31. Nowhere in the Memorandum of Appeal filed by the Promoter/Director of the corporate debtor before the NCLAT, has he claimed that the Resolution Plan was submitted by the SRA after the last date. We have perused the Memorandum of Appeal filed by the Promoter/Director of the corporate debtor before the NCLAT. It was not his case at all that the Resolution Plan was submitted by the SRA after the last date, but the same was predated by the Resolution Professional acting in collusion.32. It appears from the impugned order of NCLAT that only in the course of hearing of the appeal, the date 09th February 2019 type-written at the bottom of the self-declaration (page 29 of the Resolution Plan) was sought to be taken advantage of. Since this was not raised as one of the grounds in the Memorandum of Appeal but raised in the course of arguments, the Resolution Professional could do no more than to file the print-out of the email correspondence between him and the SRA dated 07.02.2019. In the first email dated 07.02.2019, the Resolution Professional had sought a clarification from the SRA as to how they discovered the liquidation value and the source for the same. In response to this mail, the SRA sent a reply email contending that they undertook a due diligence to know the current market value and liquidation value and that what was quoted by them in the Resolution Plan, was something that an independent agency provided to them.33. Unfortunately, NCLAT rejected the print-out of the email correspondence dated 07.02.2019 on the sole ground that the same was not supported by affidavit and that it was filed after the conclusion of the oral arguments.34. But NCLAT failed to take note of the fact that the Resolution Professional did not have any alternative except to respond in the manner that he did, to a point raised only in the course of arguments, but not raised in the Memorandum of Appeal. If the Promoter/Director of the corporate debtor had raised the issue of collusion or the submission of the Resolution Plan after the expiry of the last date, even in the Memorandum of Appeal, a duty would have been cast upon the Resolution Professional to respond in an appropriate manner. But that was not the case. Therefore, we do not approve the manner in which NCLAT rejected the contents of the email correspondence.35. The fact that there was an email correspondence between the Resolution Professional and the SRA on 07.02.2019, touching upon one of the contents of the Resolution Plan, would show (i) that the SRA had submitted the Resolution Plan before the last date and (ii) that the Resolution Professional had obviously scrutinised it, as otherwise he could not have found out the liquidation value mentioned therein matching the confidential information that he had.36. In any case, the proof of the pudding is in the eating. The liquidation value mentioned in the Resolution Plan of the SRA is Rs. 13.53 crores. But the actual total pay-out as per the Resolution Plan is Rs. 29.74 crores.37. This meant that the workers and employees of the corporate debtor were to be paid 100% of their dues; that all statutory dues would be cleared 100% and that the financial creditors who constituted the CoC were to be paid 60% of their dues.38. It offends common sense to think that a resolution applicant who had the benefit of leakage of information relating to liquidation value would quote a figure of Rs. 29.74 crores as the total pay-out, as against a liquidation value of Rs. 13.53 crores. The question of breach of confidentiality and leakage of confidential information can easily be tested on the touchstone of the benefit that accrued to the party who got the information. In the case on hand, no benefit accrued to the SRA.39. It is obvious from the material on record that the Promoter/Director of the Corporate Debtor has tried to take advantage of two small mistakes on the part of the SRA, one of which was a typographical error mentioning the date 09th February 2019 at the bottom of the self-declaration and the other, which happened as a matter of coincidence. The NCLAT appears to have made a mountain out of a molehill and has recorded a finding even beyond the pleadings in the Memorandum of Appeal. Hence, the second ground on which the NCLAT was convinced to pass the impugned order, is legally and factually untenable.As stated therein, the SRA admittedly did not make his Resolution Plan on the strength of the ethanol plant and machinery in question. The threat looming large over the availability of the ethanol plant and machinery has admittedly been taken note of by the SRA and the CoC. The Resolution Plan does not give an indication anywhere that without this plant and machinery the whole resolution plan will fail. In paragraph 8.04 of the Resolution Plan, the SRA has undertaken to continue the operations in the normal course of business. It is a commercial decision that they have taken. The corporate debtor cannot cry wolf over the said decision. Therefore, the third ground on which NCLAT chose to interfere, is also bound to be rejected.NCLAT holds that the advertisement was not in conformity with Regulation 36A of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and as per Form G of the Schedule.42. But the conclusions reached by NCLAT in this regard cannot hold water for two reasons. If NCLAT was convinced that the very process of inviting Expression of Interest was vitiated, NCLAT should have issued a direction to start the process afresh all over again by issuing a fresh advertisement. NCLAT did not do this and the person who raised this point is not on appeal.43. In any case, it does not lie in the mouth of the Promoter/Director of the corporate debtor to raise any issue in this regard. It is seen from the Minutes of the 2 nd Meeting of the Committee of Creditors that the Promoter/Director of the corporate debtor attended the meeting held on 27.03.2018. In Item No. 3 of the Agenda for the said meeting, the draft of the Invitation for Expression of Interest was approved. The Promoter/Director did not raise any objections either on 27.03.2018 in the meeting in which the draft was approved or at any time thereafter, until the approval of the Resolution Plan.44. The Promoter/Director of the corporate debtor who was the appellant before NCLAT attended the 3 rd meeting of the CoC on 15.09.2018, the 4 th meeting of the CoC held on 12.10.2018 and the 5 th meeting of the CoC held on 26.11.2018. He did not raise any whisper about the contents of the advertisement. Even when the very same Promoter/Director of the corporate debtor went before the High Court of Judicature at Bombay by way of a writ petition challenging the orders of NCLT dated 01.01.2018 and 06.03.2018, his focus was on his own application under Section 10 of the Insolvency and Bankruptcy Code. His grievance before the High Court was that his own application under Section 10 was dumped by the NCLT and the application of the financial creditor was admitted thereafter. In fact the conduct of the Promoter/Director of the corporate debtor came to adverse notice before the Bombay High Court.45. Regulation 36A was inserted only with effect from 06.02.2018 under Notification No. IBBI/2017-18/GN/REG024 dated 06.02.2018. It underwent a change under Notification No. IBBI/2018-19/GN/REG031 dated 03.07.2018, with effect from 04.07.2018. Regulation 36A, as it stood during the period from 06.02.2018 to 04.07.2018, did not mandate the publication of the invitation of Resolution Plans, either in Form G or otherwise, in newspapers. It is only the amended Regulation 36A, which came into effect from 04.07.2018, that requires the publication of Form G in newspapers. Therefore, the publication in newspapers made by the Resolution Professional, in the case on hand, on 30.03.2018, was something that was statutorily not required of him and hence the Promoter/Director of the corporate debtor cannot take advantage of the amendment that came later, to attack the advertisement.46. The second meeting of the Committee of Creditors was held on 27.03.2018. The advertisement was approved in the said meeting. It was the unamended Regulation 36A that was in force at that time. This has not been appreciated by NCLAT. Therefore, the NCLAT was wrong in its approach even in this regard.47. Therefore, in fine, the impugned order of NCLAT is flawed and hence, liable to be set aside | 1 | 5,608 | 3,359 | ### Instruction:
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total pay-out as per the Resolution Plan is Rs. 29.74 crores. 37. This meant that the workers and employees of the corporate debtor were to be paid 100% of their dues; that all statutory dues would be cleared 100% and that the financial creditors who constituted the CoC were to be paid 60% of their dues. 38. It offends common sense to think that a resolution applicant who had the benefit of leakage of information relating to liquidation value would quote a figure of Rs. 29.74 crores as the total pay-out, as against a liquidation value of Rs. 13.53 crores. The question of breach of confidentiality and leakage of confidential information can easily be tested on the touchstone of the benefit that accrued to the party who got the information. In the case on hand, no benefit accrued to the SRA. 39. It is obvious from the material on record that the Promoter/Director of the Corporate Debtor has tried to take advantage of two small mistakes on the part of the SRA, one of which was a typographical error mentioning the date 09th February 2019 at the bottom of the self-declaration and the other, which happened as a matter of coincidence. The NCLAT appears to have made a mountain out of a molehill and has recorded a finding even beyond the pleadings in the Memorandum of Appeal. Hence, the second ground on which the NCLAT was convinced to pass the impugned order, is legally and factually untenable. 40. The third ground on which NCLAT proceeded, related to the ethanol plant and machinery. We have already dealt with this issue in detail, while dealing with the first issue. As stated therein, the SRA admittedly did not make his Resolution Plan on the strength of the ethanol plant and machinery in question. The threat looming large over the availability of the ethanol plant and machinery has admittedly been taken note of by the SRA and the CoC. The Resolution Plan does not give an indication anywhere that without this plant and machinery the whole resolution plan will fail. In paragraph 8.04 of the Resolution Plan, the SRA has undertaken to continue the operations in the normal course of business. It is a commercial decision that they have taken. The corporate debtor cannot cry wolf over the said decision. Therefore, the third ground on which NCLAT chose to interfere, is also bound to be rejected. 41. The last ground revolves around the advertisement issued by the Resolution Professional on 30.03.2018. NCLAT holds that the advertisement was not in conformity with Regulation 36A of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and as per Form G of the Schedule. 42. But the conclusions reached by NCLAT in this regard cannot hold water for two reasons. If NCLAT was convinced that the very process of inviting Expression of Interest was vitiated, NCLAT should have issued a direction to start the process afresh all over again by issuing a fresh advertisement. NCLAT did not do this and the person who raised this point is not on appeal. 43. In any case, it does not lie in the mouth of the Promoter/Director of the corporate debtor to raise any issue in this regard. It is seen from the Minutes of the 2 nd Meeting of the Committee of Creditors that the Promoter/Director of the corporate debtor attended the meeting held on 27.03.2018. In Item No. 3 of the Agenda for the said meeting, the draft of the Invitation for Expression of Interest was approved. The Promoter/Director did not raise any objections either on 27.03.2018 in the meeting in which the draft was approved or at any time thereafter, until the approval of the Resolution Plan. 44. The Promoter/Director of the corporate debtor who was the appellant before NCLAT attended the 3 rd meeting of the CoC on 15.09.2018, the 4 th meeting of the CoC held on 12.10.2018 and the 5 th meeting of the CoC held on 26.11.2018. He did not raise any whisper about the contents of the advertisement. Even when the very same Promoter/Director of the corporate debtor went before the High Court of Judicature at Bombay by way of a writ petition challenging the orders of NCLT dated 01.01.2018 and 06.03.2018, his focus was on his own application under Section 10 of the Insolvency and Bankruptcy Code. His grievance before the High Court was that his own application under Section 10 was dumped by the NCLT and the application of the financial creditor was admitted thereafter. In fact the conduct of the Promoter/Director of the corporate debtor came to adverse notice before the Bombay High Court. 45. Regulation 36A was inserted only with effect from 06.02.2018 under Notification No. IBBI/2017-18/GN/REG024 dated 06.02.2018. It underwent a change under Notification No. IBBI/2018-19/GN/REG031 dated 03.07.2018, with effect from 04.07.2018. Regulation 36A, as it stood during the period from 06.02.2018 to 04.07.2018, did not mandate the publication of the invitation of Resolution Plans, either in Form G or otherwise, in newspapers. It is only the amended Regulation 36A, which came into effect from 04.07.2018, that requires the publication of Form G in newspapers. Therefore, the publication in newspapers made by the Resolution Professional, in the case on hand, on 30.03.2018, was something that was statutorily not required of him and hence the Promoter/Director of the corporate debtor cannot take advantage of the amendment that came later, to attack the advertisement. The unamended and amended Regulation 36A are provided in a tabular column for easy comparison and appreciation. table 46. The second meeting of the Committee of Creditors was held on 27.03.2018. The advertisement was approved in the said meeting. It was the unamended Regulation 36A that was in force at that time. This has not been appreciated by NCLAT. Therefore, the NCLAT was wrong in its approach even in this regard. 47. Therefore, in fine, the impugned order of NCLAT is flawed and hence, liable to be set aside.
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show (i) that the SRA had submitted the Resolution Plan before the last date and (ii) that the Resolution Professional had obviously scrutinised it, as otherwise he could not have found out the liquidation value mentioned therein matching the confidential information that he had.36. In any case, the proof of the pudding is in the eating. The liquidation value mentioned in the Resolution Plan of the SRA is Rs. 13.53 crores. But the actual total pay-out as per the Resolution Plan is Rs. 29.74 crores.37. This meant that the workers and employees of the corporate debtor were to be paid 100% of their dues; that all statutory dues would be cleared 100% and that the financial creditors who constituted the CoC were to be paid 60% of their dues.38. It offends common sense to think that a resolution applicant who had the benefit of leakage of information relating to liquidation value would quote a figure of Rs. 29.74 crores as the total pay-out, as against a liquidation value of Rs. 13.53 crores. The question of breach of confidentiality and leakage of confidential information can easily be tested on the touchstone of the benefit that accrued to the party who got the information. In the case on hand, no benefit accrued to the SRA.39. It is obvious from the material on record that the Promoter/Director of the Corporate Debtor has tried to take advantage of two small mistakes on the part of the SRA, one of which was a typographical error mentioning the date 09th February 2019 at the bottom of the self-declaration and the other, which happened as a matter of coincidence. The NCLAT appears to have made a mountain out of a molehill and has recorded a finding even beyond the pleadings in the Memorandum of Appeal. Hence, the second ground on which the NCLAT was convinced to pass the impugned order, is legally and factually untenable.As stated therein, the SRA admittedly did not make his Resolution Plan on the strength of the ethanol plant and machinery in question. The threat looming large over the availability of the ethanol plant and machinery has admittedly been taken note of by the SRA and the CoC. The Resolution Plan does not give an indication anywhere that without this plant and machinery the whole resolution plan will fail. In paragraph 8.04 of the Resolution Plan, the SRA has undertaken to continue the operations in the normal course of business. It is a commercial decision that they have taken. The corporate debtor cannot cry wolf over the said decision. Therefore, the third ground on which NCLAT chose to interfere, is also bound to be rejected.NCLAT holds that the advertisement was not in conformity with Regulation 36A of The Insolvency and Bankruptcy Board of India (Insolvency Resolution Process for Corporate Persons) Regulations, 2016 and as per Form G of the Schedule.42. But the conclusions reached by NCLAT in this regard cannot hold water for two reasons. If NCLAT was convinced that the very process of inviting Expression of Interest was vitiated, NCLAT should have issued a direction to start the process afresh all over again by issuing a fresh advertisement. NCLAT did not do this and the person who raised this point is not on appeal.43. In any case, it does not lie in the mouth of the Promoter/Director of the corporate debtor to raise any issue in this regard. It is seen from the Minutes of the 2 nd Meeting of the Committee of Creditors that the Promoter/Director of the corporate debtor attended the meeting held on 27.03.2018. In Item No. 3 of the Agenda for the said meeting, the draft of the Invitation for Expression of Interest was approved. The Promoter/Director did not raise any objections either on 27.03.2018 in the meeting in which the draft was approved or at any time thereafter, until the approval of the Resolution Plan.44. The Promoter/Director of the corporate debtor who was the appellant before NCLAT attended the 3 rd meeting of the CoC on 15.09.2018, the 4 th meeting of the CoC held on 12.10.2018 and the 5 th meeting of the CoC held on 26.11.2018. He did not raise any whisper about the contents of the advertisement. Even when the very same Promoter/Director of the corporate debtor went before the High Court of Judicature at Bombay by way of a writ petition challenging the orders of NCLT dated 01.01.2018 and 06.03.2018, his focus was on his own application under Section 10 of the Insolvency and Bankruptcy Code. His grievance before the High Court was that his own application under Section 10 was dumped by the NCLT and the application of the financial creditor was admitted thereafter. In fact the conduct of the Promoter/Director of the corporate debtor came to adverse notice before the Bombay High Court.45. Regulation 36A was inserted only with effect from 06.02.2018 under Notification No. IBBI/2017-18/GN/REG024 dated 06.02.2018. It underwent a change under Notification No. IBBI/2018-19/GN/REG031 dated 03.07.2018, with effect from 04.07.2018. Regulation 36A, as it stood during the period from 06.02.2018 to 04.07.2018, did not mandate the publication of the invitation of Resolution Plans, either in Form G or otherwise, in newspapers. It is only the amended Regulation 36A, which came into effect from 04.07.2018, that requires the publication of Form G in newspapers. Therefore, the publication in newspapers made by the Resolution Professional, in the case on hand, on 30.03.2018, was something that was statutorily not required of him and hence the Promoter/Director of the corporate debtor cannot take advantage of the amendment that came later, to attack the advertisement.46. The second meeting of the Committee of Creditors was held on 27.03.2018. The advertisement was approved in the said meeting. It was the unamended Regulation 36A that was in force at that time. This has not been appreciated by NCLAT. Therefore, the NCLAT was wrong in its approach even in this regard.47. Therefore, in fine, the impugned order of NCLAT is flawed and hence, liable to be set aside
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M/S MAGMA FINCORP LTD.(FORMERLY MAGMA LEASING LIMITED) Vs. RAJESH KUMAR TIWARI | the possession of the vehicle by use of force. The guidelines which had been laid down by Reserve Bank of India as well as the appellant Bank itself, it fact, support and make a virtue of such conduct. If any action is taken for recovery in violation of such guidelines or the principles as laid down by this Court, such an action cannot be struck down. 86. This Court held that the Financier continues to be the owner of the goods. There is an obvious typographical error in paragraph (27) of the judgment where hirer has been erroneously been typed in place of lender/financier. 87. The question raised by the Financier in this appeal, that is, whether the Financier is the real owner of the vehicle, which is the subject of a Hire Purchase Agreement, has to be answered in the affirmative in view of the law enunciated by this Court in Haranjit Singh Chadha (supra), K.L. Johar & Co. (supra) and Anup Sarmah (supra). The Financier being the owner of the vehicle which is the subject of a Hire Purchase Agreement, there can be no impediment to the Financier taking possession of the vehicle when the hirer does not make payment of instalments/hire charges in terms of the Hire Purchase Agreement. However, such repossession cannot be taken by recourse to physical violence, assault and/or criminal intimidation. Nor can such possession be taken by engaging gangsters, goons and musclemen as so called Recovery Agents. 88. Whether the service of proper notice on the hirer would be necessary for repossession of a vehicle, which is the subject matter of a Hire Purchase Agreement, would depend on the terms and conditions of the Hire Purchase Agreement, some of which may stand modified by the course of conduct of the parties. If the hire purchase agreement provides for notice on the hirer before repossession, such notice would be mandatory. Notice may also be necessary, if a requirement to give notice is implicit in the agreement from the course of conduct of the parties. 89. If the hirer commits breaches of the conditions of a hire purchase agreement which expressly provides for immediate repossession of a vehicle without further notice to the hirer, in case of default in payment of hire charges and/or hire instalments repossession would not be vitiated for want of notice. In this case, however a duty to give notice to the Complainant before repossession, was implicit in the Hire Purchase Agreement. The Hire Purchase Agreement was a stereotype agreement in a standard form, prepared by the Financier. The same kind of agreements, containing, identical terms, except for minor modifications are executed by all hirers of vehicles, equipment, machinery and other goods, who enter into hire purchase agreements with the Financier. The Financier who set down the terms and conditions of the hire purchase, construed the hire purchase agreement to contain an implied term for service of notice and accordingly despatched a notice, but did not address it to the correct address of the Complainant as given in the hire purchase agreement. 90. In a case where the requirement to serve notice before repossession is implicit in the hire purchase agreement, non service of proper notice would tantamount to deficiency of service for breach of the hire purchase agreement giving rise to a claim in damages. The Complainant consumer would be entitled to compensatory damages, based on an assessment of the loss caused to the complainant by reason of the omission to give notice. Where there is no evidence of any loss to the hirer by reason of omission to give notice, nominal damages may be awarded. 91. A forum constituted under the Consumer Protection Act has, as observed above, the power to award punitive damages. Punitive damages should, however, be granted only in exceptional circumstances, where the action of the Financier is so reprehensible that punishment is warranted. T o cite an example, where a Financier erroneously and/or wrongfully invokes the power to repossess without notice to the hirer, causing thereby extensive pecuniary loss to the hirer or loss of goodwill and repute, a forum constituted under the Consumer Protection Act may award punitive damages. 92. In the instant case, there is no evidence of any loss suffered by the complainant by reason of non-receipt of notice. Admittedly, several instalments, remained unpaid. After repossession the complainant contacted the Financier and was informed of the reasons for the repossession. He only made an offer to pay outstanding instalments and gave an assurance to pay future instalments in time. If the Financier was not agreeable to accept the offer, the Financier was within its rights under the hire purchase agreement. This is not a case where payment had been tendered by the hirer but not accepted by the Financier/lender. The Complainant had not tendered payment. 93. The Financier admittedly paid Rs.3,15,000/- for acquisition of the vehicle, out of which the Financier had been able to realize Rs.1,19,000/- inclusive of all charges. There was depreciation in the value of the vehicle by reason of usage by the Complainant, for about a year. The District Forum did not even notionally assess the depreciation in the value of the vehicle. 94. The District Forum was not justified in directing the Financier to pay the Complainant Rs.2,23,335/- being the entire amount paid by the Complainant to the Financier from the inception as well as the payment of Rs.1,04,000/- made by the Complainant to the dealer along with damage of Rs.10,000/- and litigation costs of Rs.1,000/- after the Complainant had held and used the vehicle for almost a year. The Complainant, admittedly a defaulter, has in effect, been allowed free use of the vehicle for about a year, plus damages, for an error in the notice of repossession, without considering the prejudice, if any, caused to the complainant by the error and consequential non receipt of the notice, and without making any assessment of the loss, if at all, to the Complainant by reason of the error/omission. | 1[ds]27. As observed above, deficiency has been defined in Section 2(1)(g) set out herein above, as any fault, imperfection or shortcoming or inadequacy in the quality, nature or manner of performance which is required to be maintained by or under any law, for the time being in force, or undertaken to be performed by a person, in pursuance of a contract or otherwise, in relation to any service.28. Under the terms and conditions of the hire purchase agreement, the ownership of the vehicle was to stand transferred to the Complainant from the Financier, upon payment of all the 35 instalments and other dues, if any. Until then, the ownership was to be with the Financier. As all the 35 instalments had not been paid by the complainant to the Financier, the ownership of the vehicle remained with the Financier.29. The hire purchase agreement, a copy of which is annexed to the Paper Book, clearly enabled the Financier to take possession of the vehicle, on default in payment of any of the instalments. There is no term in the Hire Purchase Agreement, that requires the Financier to give notice to the Complainant before terminating the Hire Purchase Agreement, upon breach of any term thereof, or before taking possession of the vehicle.30. On the other hand, clause 15 of the Hire Purchase Agreement expressly provides for determination of the Hire Purchase Agreement without notice to the Complainant, upon default in hire instalments. Clause 15 enables the Financier and/or its agent to enter the premises of the Complainant, where the vehicle under hire may be lying, and to take possession of the same.31. The repossession of a vehicle under hire, in accordance with the terms and conditions of a hire purchase agreement, upon default in payment of hire instalments and refusal to release the same on mere assurance of the Complainant to clear outstanding arrears of hire instalments, and pay future instalments in time, does not constitute deficiency in service.32. The Financier has claimed to have issued notice to the Complainant before taking possession of the vehicle and also a pre sale notice. Unfortunately there was an error in the address of the Complainant in the notice purported to be issued to the Complainant before taking possession. It may thus, reasonably be assumed that an obligation to give notice to the Complainant was implicit in the Hire Purchase Agreement. The Financier also construed the Hire Purchase Agreement to contain an implicit requirement to give notice to a hirer before taking possession of the vehicle covered by the Hire Purchase Agreement.34. The object of a notice before taking possession of a vehicle on hire under a Hire Purchase Agreement, is to enable the hirer, to make a written request to the Financier to revive the hire purchase agreement in terms of Clause 12 of the said agreement, upon payment of all outstanding dues together with damages, as might be mutually agreed upon.35. A notice also draws the attention of the hirer to the alleged breaches of agreement on the part of the hirer, on the basis of which, the Financier claims to be entitled to take possession. Such notice gives the hirer an opportunity to show that the hirer had not, in fact, committed any breach of agreement.A notice ensures that the hirer is not taken by surprise and has time to stop operating the vehicle, so that third persons using the vehicle on payment of charges are not put to sudden inconvenience by reason of re-possession of the vehicle.38. A District Forum constituted under the Consumer Protection Act, 1963, derives its power to grant relief from Section 14 of the said Act. If the District Forum is satisfied that the allegations contained in the complaint about the services are proved, it may direct the service provider to(i) return the charges paid by the Complainant [Section 14(1) (c)];(ii) to pay such amount, as may be awarded by the District Forum as compensation to the consumer for any loss or injury suffered by the Complainant/Consumer, due to the negligence of the service provider [Section 14(1)(d)];(iii) to pay punitive damages in such circumstances as the District Forum deems fit [Proviso to Section 14(1)(d)];(iv) to remove the deficiencies in the service in question. [Section 14(1)(a)];(v) to discontinue the unfair trade practice [Section 14(1) (f)]39. Before a District Forum can grant relief to the consumer of a service, it has to be satisfied that the allegations in the complaint, and/or in other words, the allegations which constitute a valid complaint, that is allegations of unfair or restrictive trade practice adopted by the service provider, or the allegations of deficiency in the service hired, or availed of or agreed to be availed of by the Complainant from the service provider, or the allegations of the service provider charging a price in excess of the price fixed for the service, under any law, for the time being in force or agreed between the parties or allegations of offering spurious services or services hazardous to life or safety, are proved.40. Section 13(2)(b) of the Consumer Protection Act, 1986 casts an obligation on the District Forum to decide a complaint on the basis of the evidence brought to its notice by the Complainant and the service provider. Irrespective of whether the service provider adduces evidence or not, the decision of the District Forum has to be based on evidence relied upon by the Complainant. The onus of proof is on the Complainant making the allegation. Section 27 of the Consumer Protection Act casts an obligation on the District Forum, the State Commission or the National Commission to dismiss frivolous complaints with costs not exceeding Rs.10,000/-.41. The evidence to which the Complainant drew the attention of the District Forum is apparent from its judgment and order. The Complainant produced a delivery receipt in respect of the vehicle, some payment receipts, Insurance papers in respect of the vehicle, an FIR unconnected with the Financier and/or copies thereof and some documents relating to the filing of the Complaint and payment of Court Fees etc., none of which establish any deficiency of service or unfair trade practice on the part of the Financier.42. The District Forum drew adverse inference against the Financier for not producing the Hire Purchase Agreement and assumed that there was no provision in the Hire Purchase Agreement for taking the vehicle back or selling it to a third party. Significantly it was not even the case of the Complainant in his complaint, that the Hire Purchase Agreement, which the complainant had signed, did not authorize the Financier to take possession of the vehicle upon default, or to sell the same to a third party.43. No adverse inference could have been drawn against the Financier for not producing the Hire Purchase Agreement before the District Forum, when there was no allegation in the complaint of breach by the Financier of the Hire Purchase Agreement, in taking possession of the vehicle. The District Forum did not exercise its power under Section 13(4)(ii) to call upon the Financier to produce the Hire Purchase Agreement. Even otherwise, the District Forum did not direct the Financier to produce the Hire Purchase Agreement.44. In the Complaint, a copy of which is annexed to the Paper Book, there is not a whisper of application of any force in taking possession of the vehicle. The finding of the District Forum, of the vehicle having been lifted forcefully or snatched is, with the greatest of respect, contrary to the Complainants own case made out in the Complaint, and therefore perverse. It is well settled that a new case cannot be made out by way of evidence, when there are no pleadings to support the same.46. The State Commission assumed that the error in the address of the complainant in the notice despatched by the Financier was deliberate, in order to sell the vehicle without the knowledge of the Complainant. Such assumption was not based on any materials on record but patently conjectural. The State Commission observed that the Complainant had been deprived of the opportunity to deposit the amount, due from him to the Financier, which again is contrary to the Complainants own pleadings in his complaint.48. The aforesaid observation, of the sale being dubious, has been made, overlooking the terms and conditions of the hire purchase agreement, and without considering the law governing hire purchase agreements. The Financier remains the owner of the vehicle taken by the complainant on hire, on condition of option to purchase, upon payment of all hire instalments. The hire instalments are charges for use of the vehicle as also for the exercise of option to purchase the vehicle in future. The Financier being the owner of the vehicle, there was no obligation on the part of the Financier, to divulge details of the sale of that vehicle, and that too on its own, without being called upon to do so.49. The finding of the State Commission that the Financier sold the vehicle without the knowledge of the Complainant is contrary to the Complainants own case in his complaint before the District Forum.50. The Complainant has established that there was a discrepancy and/or error in the address of the Complainant in the notice for repossession, from which all the three fora under the Consumer Protection Act, 1986, that is the District Forum, the State Commission and the National Commission have concluded that possession of the vehicle was taken without notice. It was not the case of the Complainant that the vehicle was sold without notice to or knowledge of the complainant.51. The error and/or discrepancy in the address is minor and there are no materials on the basis of which the State Commission concluded that the error was deliberate. The finding of the State Commission, of the error in the address being deliberate, is unsubstantiated.52. Be that as it may, we proceed on the basis of the concurrent factual findings of the District Forum, the State Commission and the National Commission, that the Financier took possession of the vehicle without notice. Since the Financier deemed it necessary to issue notice to the complainant, and accordingly dispatched a notice, the notice should have been sent to the correct address of the Complainant, as recorded in the Hire Purchase Agreement.53. By directing the Financier to pay to the Complainant, the entire amount paid by the Complainant to the Financier from the inception, as also the amount paid by the Complainant to the dealer directly, along with interest at the rate of 10% per annum, damages of Rs.10,000/- and litigation costs, the fora constituted under the Consumer Protection Act, 1986, have given a defaulting hirer the benefit of free use of the vehicle of the value of Rs.4,21,121/- for almost twelve months, plus damages, oblivious to the depreciation in the value of the vehicle by reason of wear and tear, due to use by the hirer, as also an admitted accident for which the vehicle lay seized with the Police for some time.54. The Consumer Protection Act, 1986 creates fora for quick adjudication of consumer disputes. The Act protects consumers from defective goods, deficient services, unfair or restrictive trade practices, or spurious goods or services. The Act also protects consumers of goods and services from being charged a price, in excess of the price fixed by or under any law in force, the price agreed between the parties, or the price declared by the service provider or the supplier of the goods inter alia by display, and/or representation.55. The Consumer Protection Act, 1986, which creates fora for expeditious adjudication and settlement of consumer disputes, is not in derogation of any law in existence, but in addition thereto, as provided in Section 3 thereof. The said Act protects consumers of services from being charged a price in excess of the price fixed for the service under any law or the price agreed between the parties and also redressal of deficiency in the services availed by the Consumer and/or against restrictive or unfair trade practices, and/or spurious services.56. The Consumer Protection Act, 1986 does not override the Contract Act, 1872, and other enactments in force, applicable to the service availed by the consumer from the service provider.57. The protection, to which the consumer of a service is entitled under the Consumer Protection Act, is against loss of money, by reason of being denied service, of a quality agreed upon expressly or by necessary implication, inter alia, in view of the applicable law, for which the consumer has paid, or has agreed to pay a consideration. The said Act also protects consumers from being overcharged for any service obtained and/or agreed to be obtained.58. The consumer of a service may also be entitled to damages for any loss suffered by the consumer, by reason of denial or deficiency in service for which the consumer has paid or agreed to pay (if the parties have agreed to deferred payment), charges and/or in other words, price for the service. In cases of breach of contract, liquidated damages may be imposed on the party in breach, if the agreement provides for liquidated damages, that is a fixed amount by way of damages. Where the parties to an agreement have not agreed to liquidated damages, the party in breach of agreement may be directed to pay unliquidated damages which are compensatory. Such compensatory damages are not to punish the party in breach, but to compensate the party not in breach, for losses suffered as a result of the breach.59. Where, however, the damages caused by the breach are severe and extensive, the party in breach may be required to pay to the party not in breach, such damages as would restore the position of the party not in breach, to the position before the breach occurred.60. Apart from compensatory damages, an Adjudicating Authority may impose on the party in breach, punitive damages or nominal damages. Punitive damages are awarded where the party in breach of agreement has behaved in a manner, which is reprehensible and calls for punishment. Nominal damages are awarded where there is no real harm done, by reason of the breach of the contract.62. The proviso to Section 14(1)(d) of Consumer Protection Act, 1986 empowers the District Forum to grant punitive damages in such circumstances as it deems fit. Punitive damages are not generally awarded in cases of breach of contract unless the act is so reprehensible that it calls for punishment of the party in breach, by imposition of punitive and/or exemplary damages. Compensation which is compensatory, has to be assessed taking into account relevant factors, such as the loss incurred by the claimant, though some amount of guess work and/or estimation may be permissible. In the instant case, the District Forum did not even undertake the exercise of assessment of the loss/damages, if any, suffered by the complainant by reason of non-service of notice before taking possession of the vehicle.63. The District Forum, as also the State Commission and the National Commission, did not consider the law relating to hire purchases as enunciated by this Court in a plethora of judgments.64. In Charanjit Singh Chadha & Ors. v. Sudhir Mehra (2001) 7 SCC 417 , relied upon by the Financier, this Court held:5. Hire-purchase agreements are executory contracts under which the goods are let on hire and the hirer has an option to purchase in accordance with the terms of the agreement. These types of agreements were originally entered into between the dealer and the customer and the dealer used to extend credit to the customer. But as hire- purchase scheme gained in popularity and in size, the dealers who were not endowed with liberal amount of working capital found it difficult to extend the scheme to many customers. Then the financiers came into the picture. The finance company would buy the goods from the dealer and let them to the customer under hire-purchase agreement. The dealer would deliver the goods to the customer who would then drop out of the transaction leaving the finance company to collect instalments directly from the customer. Under hire-purchase agreement, the hirer is simply paying for the use of the goods and for the option to purchase them. The finance charge, representing the difference between the cash price and the hire-purchase price, is not interest but represents a sum which the hirer has to pay for the privilege of being allowed to discharge the purchase price of goods by instalments.7. In Damodar Valley Corpn. v. State of Bihar AIR 1961 SC 440 this Court took the view that a mere contract of hiring, without more, is a species of the contract of bailment, which does not create a title in the bailee, but the law of hire purchase has undergone considerable development during the last half a century or more and has introduced a number of variations, thus leading to categories and it becomes a question of some nicety as to which category a particular contract between the parties comes under. Ordinarily, a contract of hire purchase confers no title on the hirer, but a mere option to purchase on fulfilment of certain conditions. But a contract of hire purchase may also provide for the agreement to purchase the thing hired by deferred payments subject to the condition that title to the thing shall not pass until all the instalments have been paid. There may be other variations of a contract of hire purchase depending upon the terms agreed between the parties. When rights in third parties have been created by acts of parties or by operation of law, the question may arise as to what exactly were the rights and obligations of the parties to the original contract.65. In Charanjit Singh Chadha (supra), this Court held that a Hire Purchase Agreement is an executory contract of sale, conferring no right in rem on the hirer, until the conditions for transfer of the property to him have been fulfilled. The Financier continues to be the owner of the goods under a hire purchase agreement. The hirer simply pays for use of the goods and for the option to purchase them. The finance charge, representing the difference between the price and the hire purchase price represents the sum which the hirer has to pay for the privilege of being allowed to pay the purchase price in instalments. Where the hirer had defaulted in payment of instalments and the agreement specifically provided that the Financier was entitled to repossess the vehicle in case of default, no case was made out against the Financier.71. In Jagdish Chandra Nijhawan (supra), this Court held that where a Chairman, provided with rent fee furnished flat by the company of which the company was not the lessee, remained in wrongful possession of the flat after his Chairmanship stood terminated, the dispute was of a civil nature. The High Court had thus, erred in law in quashing the order of discharge made by the Court of Judicial Magistrate in a Criminal Revision application. The judgment has no relevance to the issues involved in this case.72. In Lalmuni Devi (supra), the issue before this Court was, whether facts which could give rise to a civil claim, could also amount to offence. This Court held that merely because a civil claim was maintainable did not mean that the criminal complaint would not be maintained. The Judgment was rendered in the context of the allegation that the respondent Nos. 2 and 10 had fraudulently got the father of the complainant to execute a gift deed. The judgment is of no relevance to this case.77. The law which emerges from the judgments of the Court referred to above, is that goods are let out on hire under a Hire Purchase Agreement, with an option to purchase, in accordance with the terms and conditions of the Hire Purchase Agreement. The hirer simply pays for the use of the goods and for the option to purchase them.78. Until the option to purchase is exercised by the hirer, upon payment of all amounts agreed upon between the hirer and the Financier, the financier continues to be owner of the goods being the subject of hire purchase. Till such time the hirer remains a trustee and/or bailee of the goods covered by the Hire Purchase Agreement.79. The Financier continues to remain the owner of a vehicle, covered by a hire purchase agreement till all the hire instalments are paid and the hirer exercises the option to purchase. Thus, when the Financier takes re-possession of a vehicle under hire, upon default by the hirer in payment of hire instalments, the Financier takes re- possession of the Financiers own vehicle.80. When the agreement between the Financier and the hirer permits the Financier to take possession of a vehicle financed by the Financier, there is no legal impediment to the Financier taking possession of the vehicle. When possession of the vehicle is taken, the Financier cannot be said to have committed theft.81. Whether the transaction between a Financier and a purchaser/hirer is a hire purchase transaction, or a loan transaction, might be determined from the terms of the agreement, considered in the light of surrounding circumstances. However, even a loan transaction, secured by right of seizure of a financed vehicle, confers licence to the Financier to seize the vehicle.82. In this case, the agreement executed by and between the Financier and the Complainant is a Hire Purchase Agreement as will appear from the terms and conditions thereof. In any event, the fora under the Consumer Protection Act, have not arrived at any specific finding to the contrary. There is no discussion of the nature of the agreement between the Financier and the Complainant. Be that as it may, the agreement clearly permits the Financier to take possession of the vehicle, upon default in payment of instalments.85. In Citicorp Maruti Finance Ltd. v. S. Vijaylaxmi (2012) 1 SCC 1 cited by the complainant, this Court held that the fora under the Consumer Protection Act, 1986 were right in holding that the vehicles had been illegally and wrongfully recovered by use of force from the loanees. The judgment was rendered in the facts and circumstance of the case and this Court deprecated the use of force. In this case, there was no allegation in the complaint of use of force. Significantly, in Citicorp Maruti Finance Ltd. (supra), Kabir, J. held:-27. Till such time as the ownership is not transferred to the purchaser, the hirer normally continues to be the owner of the goods, but that does not entitle him on the strength of the agreement to take back the possession of the vehicle by use of force. The guidelines which had been laid down by Reserve Bank of India as well as the appellant Bank itself, it fact, support and make a virtue of such conduct. If any action is taken for recovery in violation of such guidelines or the principles as laid down by this Court, such an action cannot be struck down.. This Court held that the Financier continues to be the owner of the goods. There is an obvious typographical error in paragraph (27) of the judgment where hirer has been erroneously been typed in place of lender/financier.87. The question raised by the Financier in this appeal, that is, whether the Financier is the real owner of the vehicle, which is the subject of a Hire Purchase Agreement,has to be answered in the affirmative in view of the law enunciated by this Court in Haranjit Singh Chadha (supra), K.L. Johar & Co. (supra) and Anup Sarmah (supra). The Financier being the owner of the vehicle which is the subject of a Hire Purchase Agreement, there can be no impediment to the Financier taking possession of the vehicle when the hirer does not make payment of instalments/hire charges in terms of the Hire Purchase Agreement. However, such repossession cannot be taken by recourse to physical violence, assault and/or criminal intimidation. Nor can such possession be taken by engaging gangsters, goons and musclemen as so called Recovery Agents.88. Whether the service of proper notice on the hirer would be necessary for repossession of a vehicle, which is the subject matter of a Hire Purchase Agreement, would depend on the terms and conditions of the Hire Purchase Agreement, some of which may stand modified by the course of conduct of the parties. If the hire purchase agreement provides for notice on the hirer before repossession, such notice would be mandatory. Notice may also be necessary, if a requirement to give notice is implicit in the agreement from the course of conduct of the parties.89. If the hirer commits breaches of the conditions of a hire purchase agreement which expressly provides for immediate repossession of a vehicle without further notice to the hirer, in case of default in payment of hire charges and/or hire instalments repossession would not be vitiated for want of notice. In this case, however a duty to give notice to the Complainant before repossession, was implicit in the Hire Purchase Agreement. The Hire Purchase Agreement was a stereotype agreement in a standard form, prepared by the Financier. The same kind of agreements, containing, identical terms, except for minor modifications are executed by all hirers of vehicles, equipment, machinery and other goods, who enter into hire purchase agreements with the Financier. The Financier who set down the terms and conditions of the hire purchase, construed the hire purchase agreement to contain an implied term for service of notice and accordingly despatched a notice, but did not address it to the correct address of the Complainant as given in the hire purchase agreement.90. In a case where the requirement to serve notice before repossession is implicit in the hire purchase agreement, non service of proper notice would tantamount to deficiency of service for breach of the hire purchase agreement giving rise to a claim in damages. The Complainant consumer would be entitled to compensatory damages, based on an assessment of the loss caused to the complainant by reason of the omission to give notice. Where there is no evidence of any loss to the hirer by reason of omission to give notice, nominal damages may be awarded.91. A forum constituted under the Consumer Protection Act has, as observed above, the power to award punitive damages. Punitive damages should, however, be granted only in exceptional circumstances, where the action of the Financier is so reprehensible that punishment is warranted. T o cite an example, where a Financier erroneously and/or wrongfully invokes the power to repossess without notice to the hirer, causing thereby extensive pecuniary loss to the hirer or loss of goodwill and repute, a forum constituted under the Consumer Protection Act may award punitive damages.92. In the instant case, there is no evidence of any loss suffered by the complainant by reason of non-receipt of notice. Admittedly, several instalments, remained unpaid. After repossession the complainant contacted the Financier and was informed of the reasons for the repossession. He only made an offer to pay outstanding instalments and gave an assurance to pay future instalments in time. If the Financier was not agreeable to accept the offer, the Financier was within its rights under the hire purchase agreement. This is not a case where payment had been tendered by the hirer but not accepted by the Financier/lender. The Complainant had not tendered payment.93. The Financier admittedly paid Rs.3,15,000/- for acquisition of the vehicle, out of which the Financier had been able to realize Rs.1,19,000/- inclusive of all charges. There was depreciation in the value of the vehicle by reason of usage by the Complainant, for about a year. The District Forum did not even notionally assess the depreciation in the value of the vehicle.94. The District Forum was not justified in directing the Financier to pay the Complainant Rs.2,23,335/- being the entire amount paid by the Complainant to the Financier from the inception as well as the payment of Rs.1,04,000/- made by the Complainant to the dealer along with damage of Rs.10,000/- and litigation costs of Rs.1,000/- after the Complainant had held and used the vehicle for almost a year. The Complainant, admittedly a defaulter, has in effect, been allowed free use of the vehicle for about a year, plus damages, for an error in the notice of repossession, without considering the prejudice, if any, caused to the complainant by the error and consequential non receipt of the notice, and without making any assessment of the loss, if at all, to the Complainant by reason of the error/omission.66. In K.L. Johar & Co. v. Deputy Commercial Tax Officer, Coimbatore AIR 1965 SC 1082 this Court took the view that a hire-purchase agreement has two elements: (1) element of bailment; and (2) element of sale, in the sense that it contemplates an eventual sale. The element of sale fructifies when the option is exercised by the intending purchaser after fulfilling the terms of the agreement. When all the terms of the agreement are satisfied, and the option is exercised, a sale takes place of the goods, which till then, had been hired.67. In Anup Sarmah v. Bhola Nath Sharma and Others (2013) 1 SCC 400 cited on behalf of the Financier, this Court held that, in an agreement of hire-purchase, the purchaser remains merely a trustee/bailee on behalf of the financier/financial institution and ownership remains with the latter. Thus, in case the vehicle is seized by the Financier, no criminal action can be taken against the Financier, as the Financier is only repossessing the goods owned by the Financier.22. The fora constituted under the Consumer Protection Act, 1986 are quasi judicial bodies, required to observe the principles of Natural Justice and to award relief of a specific nature and to award wherever appropriate, compensation to consumers.24. Section 11 of the Consumer Protection Act confers jurisdiction on the District Forum, having territorial jurisdiction, to entertain a complaint, subject to the pecuniary limit of the value of the goods or services and/or the compensation claimed. In this case the territorial or the pecuniary jurisdiction of the District Forum, to entertain the complaint, is not in dispute. There can also be no dispute that the Complainant was a consumer of services provided by the Financier.25. Section (2)(1)(r) defines unfair trade practice to mean a trade practice, for the purpose of promoting provision of any service, by adoption of unfair method or unfair or deceptive practice, including any of the practices enumerated in Sections 2(1)(r)(i) to (x), 2(r)(2), 2(r)(3) and 2(r)(3A). The complaint does not make out any case of unfair trade practice within the meaning of Section 2(1)(r) of the Consumer Protection Act 1986. | 1 | 17,918 | 5,748 | ### Instruction:
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the possession of the vehicle by use of force. The guidelines which had been laid down by Reserve Bank of India as well as the appellant Bank itself, it fact, support and make a virtue of such conduct. If any action is taken for recovery in violation of such guidelines or the principles as laid down by this Court, such an action cannot be struck down. 86. This Court held that the Financier continues to be the owner of the goods. There is an obvious typographical error in paragraph (27) of the judgment where hirer has been erroneously been typed in place of lender/financier. 87. The question raised by the Financier in this appeal, that is, whether the Financier is the real owner of the vehicle, which is the subject of a Hire Purchase Agreement, has to be answered in the affirmative in view of the law enunciated by this Court in Haranjit Singh Chadha (supra), K.L. Johar & Co. (supra) and Anup Sarmah (supra). The Financier being the owner of the vehicle which is the subject of a Hire Purchase Agreement, there can be no impediment to the Financier taking possession of the vehicle when the hirer does not make payment of instalments/hire charges in terms of the Hire Purchase Agreement. However, such repossession cannot be taken by recourse to physical violence, assault and/or criminal intimidation. Nor can such possession be taken by engaging gangsters, goons and musclemen as so called Recovery Agents. 88. Whether the service of proper notice on the hirer would be necessary for repossession of a vehicle, which is the subject matter of a Hire Purchase Agreement, would depend on the terms and conditions of the Hire Purchase Agreement, some of which may stand modified by the course of conduct of the parties. If the hire purchase agreement provides for notice on the hirer before repossession, such notice would be mandatory. Notice may also be necessary, if a requirement to give notice is implicit in the agreement from the course of conduct of the parties. 89. If the hirer commits breaches of the conditions of a hire purchase agreement which expressly provides for immediate repossession of a vehicle without further notice to the hirer, in case of default in payment of hire charges and/or hire instalments repossession would not be vitiated for want of notice. In this case, however a duty to give notice to the Complainant before repossession, was implicit in the Hire Purchase Agreement. The Hire Purchase Agreement was a stereotype agreement in a standard form, prepared by the Financier. The same kind of agreements, containing, identical terms, except for minor modifications are executed by all hirers of vehicles, equipment, machinery and other goods, who enter into hire purchase agreements with the Financier. The Financier who set down the terms and conditions of the hire purchase, construed the hire purchase agreement to contain an implied term for service of notice and accordingly despatched a notice, but did not address it to the correct address of the Complainant as given in the hire purchase agreement. 90. In a case where the requirement to serve notice before repossession is implicit in the hire purchase agreement, non service of proper notice would tantamount to deficiency of service for breach of the hire purchase agreement giving rise to a claim in damages. The Complainant consumer would be entitled to compensatory damages, based on an assessment of the loss caused to the complainant by reason of the omission to give notice. Where there is no evidence of any loss to the hirer by reason of omission to give notice, nominal damages may be awarded. 91. A forum constituted under the Consumer Protection Act has, as observed above, the power to award punitive damages. Punitive damages should, however, be granted only in exceptional circumstances, where the action of the Financier is so reprehensible that punishment is warranted. T o cite an example, where a Financier erroneously and/or wrongfully invokes the power to repossess without notice to the hirer, causing thereby extensive pecuniary loss to the hirer or loss of goodwill and repute, a forum constituted under the Consumer Protection Act may award punitive damages. 92. In the instant case, there is no evidence of any loss suffered by the complainant by reason of non-receipt of notice. Admittedly, several instalments, remained unpaid. After repossession the complainant contacted the Financier and was informed of the reasons for the repossession. He only made an offer to pay outstanding instalments and gave an assurance to pay future instalments in time. If the Financier was not agreeable to accept the offer, the Financier was within its rights under the hire purchase agreement. This is not a case where payment had been tendered by the hirer but not accepted by the Financier/lender. The Complainant had not tendered payment. 93. The Financier admittedly paid Rs.3,15,000/- for acquisition of the vehicle, out of which the Financier had been able to realize Rs.1,19,000/- inclusive of all charges. There was depreciation in the value of the vehicle by reason of usage by the Complainant, for about a year. The District Forum did not even notionally assess the depreciation in the value of the vehicle. 94. The District Forum was not justified in directing the Financier to pay the Complainant Rs.2,23,335/- being the entire amount paid by the Complainant to the Financier from the inception as well as the payment of Rs.1,04,000/- made by the Complainant to the dealer along with damage of Rs.10,000/- and litigation costs of Rs.1,000/- after the Complainant had held and used the vehicle for almost a year. The Complainant, admittedly a defaulter, has in effect, been allowed free use of the vehicle for about a year, plus damages, for an error in the notice of repossession, without considering the prejudice, if any, caused to the complainant by the error and consequential non receipt of the notice, and without making any assessment of the loss, if at all, to the Complainant by reason of the error/omission.
### Response:
1
### Explanation:
the conditions of a hire purchase agreement which expressly provides for immediate repossession of a vehicle without further notice to the hirer, in case of default in payment of hire charges and/or hire instalments repossession would not be vitiated for want of notice. In this case, however a duty to give notice to the Complainant before repossession, was implicit in the Hire Purchase Agreement. The Hire Purchase Agreement was a stereotype agreement in a standard form, prepared by the Financier. The same kind of agreements, containing, identical terms, except for minor modifications are executed by all hirers of vehicles, equipment, machinery and other goods, who enter into hire purchase agreements with the Financier. The Financier who set down the terms and conditions of the hire purchase, construed the hire purchase agreement to contain an implied term for service of notice and accordingly despatched a notice, but did not address it to the correct address of the Complainant as given in the hire purchase agreement.90. In a case where the requirement to serve notice before repossession is implicit in the hire purchase agreement, non service of proper notice would tantamount to deficiency of service for breach of the hire purchase agreement giving rise to a claim in damages. The Complainant consumer would be entitled to compensatory damages, based on an assessment of the loss caused to the complainant by reason of the omission to give notice. Where there is no evidence of any loss to the hirer by reason of omission to give notice, nominal damages may be awarded.91. A forum constituted under the Consumer Protection Act has, as observed above, the power to award punitive damages. Punitive damages should, however, be granted only in exceptional circumstances, where the action of the Financier is so reprehensible that punishment is warranted. T o cite an example, where a Financier erroneously and/or wrongfully invokes the power to repossess without notice to the hirer, causing thereby extensive pecuniary loss to the hirer or loss of goodwill and repute, a forum constituted under the Consumer Protection Act may award punitive damages.92. In the instant case, there is no evidence of any loss suffered by the complainant by reason of non-receipt of notice. Admittedly, several instalments, remained unpaid. After repossession the complainant contacted the Financier and was informed of the reasons for the repossession. He only made an offer to pay outstanding instalments and gave an assurance to pay future instalments in time. If the Financier was not agreeable to accept the offer, the Financier was within its rights under the hire purchase agreement. This is not a case where payment had been tendered by the hirer but not accepted by the Financier/lender. The Complainant had not tendered payment.93. The Financier admittedly paid Rs.3,15,000/- for acquisition of the vehicle, out of which the Financier had been able to realize Rs.1,19,000/- inclusive of all charges. There was depreciation in the value of the vehicle by reason of usage by the Complainant, for about a year. The District Forum did not even notionally assess the depreciation in the value of the vehicle.94. The District Forum was not justified in directing the Financier to pay the Complainant Rs.2,23,335/- being the entire amount paid by the Complainant to the Financier from the inception as well as the payment of Rs.1,04,000/- made by the Complainant to the dealer along with damage of Rs.10,000/- and litigation costs of Rs.1,000/- after the Complainant had held and used the vehicle for almost a year. The Complainant, admittedly a defaulter, has in effect, been allowed free use of the vehicle for about a year, plus damages, for an error in the notice of repossession, without considering the prejudice, if any, caused to the complainant by the error and consequential non receipt of the notice, and without making any assessment of the loss, if at all, to the Complainant by reason of the error/omission.66. In K.L. Johar & Co. v. Deputy Commercial Tax Officer, Coimbatore AIR 1965 SC 1082 this Court took the view that a hire-purchase agreement has two elements: (1) element of bailment; and (2) element of sale, in the sense that it contemplates an eventual sale. The element of sale fructifies when the option is exercised by the intending purchaser after fulfilling the terms of the agreement. When all the terms of the agreement are satisfied, and the option is exercised, a sale takes place of the goods, which till then, had been hired.67. In Anup Sarmah v. Bhola Nath Sharma and Others (2013) 1 SCC 400 cited on behalf of the Financier, this Court held that, in an agreement of hire-purchase, the purchaser remains merely a trustee/bailee on behalf of the financier/financial institution and ownership remains with the latter. Thus, in case the vehicle is seized by the Financier, no criminal action can be taken against the Financier, as the Financier is only repossessing the goods owned by the Financier.22. The fora constituted under the Consumer Protection Act, 1986 are quasi judicial bodies, required to observe the principles of Natural Justice and to award relief of a specific nature and to award wherever appropriate, compensation to consumers.24. Section 11 of the Consumer Protection Act confers jurisdiction on the District Forum, having territorial jurisdiction, to entertain a complaint, subject to the pecuniary limit of the value of the goods or services and/or the compensation claimed. In this case the territorial or the pecuniary jurisdiction of the District Forum, to entertain the complaint, is not in dispute. There can also be no dispute that the Complainant was a consumer of services provided by the Financier.25. Section (2)(1)(r) defines unfair trade practice to mean a trade practice, for the purpose of promoting provision of any service, by adoption of unfair method or unfair or deceptive practice, including any of the practices enumerated in Sections 2(1)(r)(i) to (x), 2(r)(2), 2(r)(3) and 2(r)(3A). The complaint does not make out any case of unfair trade practice within the meaning of Section 2(1)(r) of the Consumer Protection Act 1986.
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HARISH CHANDRA SHRIVASTAVA Vs. THE STATE OF BIHAR AND OTHERS | teachers as on the cut--off date i.e. 01st June, 1986 and on the conjoint reading of Section 6(2) of the Act 1985 read with notification dated 09th December, 1986, the State Government made its intention clear that as the decision has been taken to absorb the employee/teacher of the private Ayurvedic college as on 01st June, 1986, his bio--data is to be examined for various purposes, but while considering him for absorption, the Screening Committee constituted has to consider the eligibility of the employees/teachers regarding minimum qualifications and teaching skills as on the cut--off date i.e. 01st June, 1986 and the recommendation made by the Screening Committee will be considered by the State Government for absorption or for continuance in service or for termination, as the case may be, on case to case basis in terms of sub--Section (3) of Section 6 of the Act 1985. 23. The additional reason appears to be since the service of the teacher will be reckoned from the date of absorption in the Government, the past service rendered in the private Ayurvedic college in terms of the affidavit filed by the State Government stands obliterated for all practical purposes. This further supports the eligibility of the teacher to be looked into as on the cut--off date, i.e. 01st June, 1986. 24. Thus, the very premise on which the High Court has proceeded to examine the eligibility of the teachers as on the date they initially entered into service in the year 1978--1979 and arriving to the conclusion that the teachers who were not holding the post- qualification teaching experience of three years from recognized Ayurvedic college as referred to under the Statute would not be eligible for absorption in terms of the notification dated 09th December, 1986, in our considered view, is a clear misconception of law and deserves rejection. 25. We proceed to further examine as to whether the requirement of eligibility of the teaching staff of holding post qualification teaching experience of three years as a teacher/lecturer referred to under the Statute is possible for the incumbent to meet out on which the State counsel has put much emphasis. Our question to him was how far it is practically possible that when you dont permit a person to be recruited into service as a teacher on the basis of his academic qualification, how he will gain post-qualification teaching experience of three years as the condition of eligibility and how both these twin conditions would meet together. 26. Leaned counsel for the respondents even after seeking instructions from the department has come with the explanation that this being the statutory requirement, one is supposed to comply with at the time of initial appointment but he was unable to justify as to how the person on the basis of academic qualification, if not being permitted to teach, may acquire post qualification teaching experience as referred to under the Statute of the Bihar University Act or by CCIM Act, 1970 for entry into service and, in our considered view, the academic qualification and post qualification teaching experience of three years at the entry level post i.e. Lecturer in the instant case, are two different ends which are not possible to meet. 27. We are not going into this controversy any more and leave it at this stage for the reason that the requirement in terms of the notification dated 09th December, 1986 was never the subject matter of challenge and clause (c), in particular, clearly manifests that the verification of the list of eligible teaching employees working in the college would be considered by the Screening Committee duly constituted by the department as on the cut--off date i.e. 01st June, 1986 and it is the said date on which the minimum qualification and teaching skills of the individual has to be looked into by the Committee while adjudging his overall suitability for absorption. 28. Indisputedly, in the instant case, each of the appellants before this Court was holding the academic qualification while entered into service in the year 1978--1979 in the private Ayurvedic College and holding teaching experience of more than three years as on the cut- off date 01st June, 1986 in terms of notification dated 09th December 1986, when the Screening Committee was called upon to adjudge the overall suitability of the appellants for absorption and once the appellants were indeed eligible as on the cut--off date i.e. 01st June, 1986, the justification tendered by the Committee, in the first instance, that the appellants were not holding the post qualification teaching experience of three years on the date when they were initially appointed in the private Ayurvedic College in the year 1978- 1979, is not in conformity with the mandate of the Act 1985 read with notification dated 09th December, 1986. 29. In our considered view, the High Court under the impugned judgment has completely overlooked the scheme of the Act 1985 read with notification dated 09th December, 1986 pursuant to which the exercise was to be undertaken by the State Government for absorbing teaching/non--teaching employees of private Ayurvedic College and this was the apparent error committed by the High Court which, in our view, is not sustainable in law and deserves to be set aside. 30. Before parting with the order, it has been informed to this Court that in terms of the Government notification no. 6745 dated 30th July 2015, the age of superannuation of teachers has been extended upto 67 years and out of 5 teachers, 4 of them had attained the age of superannuation and one Dr. Mod Nath Mishra has time to serve the institution and may retire in the month of March, 2023. 31. Once we arrive at the conclusion that the finding of unfitness recorded by the Review Screening Committee was not sustainable in law which was the foundation for the Government to terminate the services of the appellants in consequence thereof, each one of them deserves to be reinstated in service with all consequential benefits. | 1[ds]19. It is not disputed that each of the appellants was holding the essential academic qualifications prescribed for teaching staff as on the date of their initial appointment in the year 1978--1979 in the private Ayurvedic College and were serving the institution when the Act, 1985 came into force on 07th August, 1985.20. The State Government in exercise of its power under Section 3 of the Act 1985 vide its notification dated 09th December, 1986 w.e.f. 01st June, 1986 took over the college and management of the private Ayurvedic College on certain terms and conditions and Clause (c) of the notification of 09th December, 1986 of which reference has been made above clearly manifest that the verification of the list of teaching and non--teaching employees working in the said college on the cut--off date i.e. 01st June, 1986 would be considered by the Screening Committee duly constituted by the department and it will be seen by the Committee whether on the said date, the employees and teachers were having minimum qualifications and teaching skills for the post that they held on the cut--off date and not on the date of appointment.21. Clause (c) of the notification dated 09th December, 1986 leaves no manner of doubt that the Screening Committee constituted by the State Government has to look into the eligibility and other minimum qualifications and teaching skills as on the said date i.e. 01st June, 1986.22. We find a complete fallacy in the submission made by the State Counsel for the reason that Section 6(2) authored the Committee constituted by the State Government to examine the bio- data of each of the member of the teaching staff in reference to appointment, promotion and confirmation made in accordance with the relevant Statute and the State Government in terms of Section 6(3) of the Act will take a call in respect of each member of teaching staff on merits of each case whether to absorb him in the Government service or terminate his service or allow him to continue on ad hoc basis on a fixed term, as the case may be, but once a State Government in its wisdom has come out with the statutory notification issued in exercise of power under Section 3 of the Act dated 09th December, 1986 while taking assets of private Ayurvedic College and the hospitals attached thereto, at the same time, under Clause (c), a specific mandate has been authored to the Screening Committee to consider the minimum qualifications and teaching skills of the teachers as on the cut--off date i.e. 01st June, 1986 and on the conjoint reading of Section 6(2) of the Act 1985 read with notification dated 09th December, 1986, the State Government made its intention clear that as the decision has been taken to absorb the employee/teacher of the private Ayurvedic college as on 01st June, 1986, his bio--data is to be examined for various purposes, but while considering him for absorption, the Screening Committee constituted has to consider the eligibility of the employees/teachers regarding minimum qualifications and teaching skills as on the cut--off date i.e. 01st June, 1986 and the recommendation made by the Screening Committee will be considered by the State Government for absorption or for continuance in service or for termination, as the case may be, on case to case basis in terms of sub--Section (3) of Section 6 of the Act 1985.23. The additional reason appears to be since the service of the teacher will be reckoned from the date of absorption in the Government, the past service rendered in the private Ayurvedic college in terms of the affidavit filed by the State Government stands obliterated for all practical purposes. This further supports the eligibility of the teacher to be looked into as on the cut--off date, i.e. 01st June, 1986.24. Thus, the very premise on which the High Court has proceeded to examine the eligibility of the teachers as on the date they initially entered into service in the year 1978--1979 and arriving to the conclusion that the teachers who were not holding the post- qualification teaching experience of three years from recognized Ayurvedic college as referred to under the Statute would not be eligible for absorption in terms of the notification dated 09th December, 1986, in our considered view, is a clear misconception of law and deserves rejection.26. Leaned counsel for the respondents even after seeking instructions from the department has come with the explanation that this being the statutory requirement, one is supposed to comply with at the time of initial appointment but he was unable to justify as to how the person on the basis of academic qualification, if not being permitted to teach, may acquire post qualification teaching experience as referred to under the Statute of the Bihar University Act or by CCIM Act, 1970 for entry into service and, in our considered view, the academic qualification and post qualification teaching experience of three years at the entry level post i.e. Lecturer in the instant case, are two different ends which are not possible to meet.27. We are not going into this controversy any more and leave it at this stage for the reason that the requirement in terms of the notification dated 09th December, 1986 was never the subject matter of challenge and clause (c), in particular, clearly manifests that the verification of the list of eligible teaching employees working in the college would be considered by the Screening Committee duly constituted by the department as on the cut--off date i.e. 01st June, 1986 and it is the said date on which the minimum qualification and teaching skills of the individual has to be looked into by the Committee while adjudging his overall suitability for absorption.28. Indisputedly, in the instant case, each of the appellants before this Court was holding the academic qualification while entered into service in the year 1978--1979 in the private Ayurvedic College and holding teaching experience of more than three years as on the cut- off date 01st June, 1986 in terms of notification dated 09th December 1986, when the Screening Committee was called upon to adjudge the overall suitability of the appellants for absorption and once the appellants were indeed eligible as on the cut--off date i.e. 01st June, 1986, the justification tendered by the Committee, in the first instance, that the appellants were not holding the post qualification teaching experience of three years on the date when they were initially appointed in the private Ayurvedic College in the year 1978- 1979, is not in conformity with the mandate of the Act 1985 read with notification dated 09th December, 1986.29. In our considered view, the High Court under the impugned judgment has completely overlooked the scheme of the Act 1985 read with notification dated 09th December, 1986 pursuant to which the exercise was to be undertaken by the State Government for absorbing teaching/non--teaching employees of private Ayurvedic College and this was the apparent error committed by the High Court which, in our view, is not sustainable in law and deserves to be set aside.30. Before parting with the order, it has been informed to this Court that in terms of the Government notification no. 6745 dated 30th July 2015, the age of superannuation of teachers has been extended upto 67 years and out of 5 teachers, 4 of them had attained the age of superannuation and one Dr. Mod Nath Mishra has time to serve the institution and may retire in the month of March, 2023.31. Once we arrive at the conclusion that the finding of unfitness recorded by the Review Screening Committee was not sustainable in law which was the foundation for the Government to terminate the services of the appellants in consequence thereof, each one of them deserves to be reinstated in service with all consequential benefits. | 1 | 4,339 | 1,441 | ### 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:
teachers as on the cut--off date i.e. 01st June, 1986 and on the conjoint reading of Section 6(2) of the Act 1985 read with notification dated 09th December, 1986, the State Government made its intention clear that as the decision has been taken to absorb the employee/teacher of the private Ayurvedic college as on 01st June, 1986, his bio--data is to be examined for various purposes, but while considering him for absorption, the Screening Committee constituted has to consider the eligibility of the employees/teachers regarding minimum qualifications and teaching skills as on the cut--off date i.e. 01st June, 1986 and the recommendation made by the Screening Committee will be considered by the State Government for absorption or for continuance in service or for termination, as the case may be, on case to case basis in terms of sub--Section (3) of Section 6 of the Act 1985. 23. The additional reason appears to be since the service of the teacher will be reckoned from the date of absorption in the Government, the past service rendered in the private Ayurvedic college in terms of the affidavit filed by the State Government stands obliterated for all practical purposes. This further supports the eligibility of the teacher to be looked into as on the cut--off date, i.e. 01st June, 1986. 24. Thus, the very premise on which the High Court has proceeded to examine the eligibility of the teachers as on the date they initially entered into service in the year 1978--1979 and arriving to the conclusion that the teachers who were not holding the post- qualification teaching experience of three years from recognized Ayurvedic college as referred to under the Statute would not be eligible for absorption in terms of the notification dated 09th December, 1986, in our considered view, is a clear misconception of law and deserves rejection. 25. We proceed to further examine as to whether the requirement of eligibility of the teaching staff of holding post qualification teaching experience of three years as a teacher/lecturer referred to under the Statute is possible for the incumbent to meet out on which the State counsel has put much emphasis. Our question to him was how far it is practically possible that when you dont permit a person to be recruited into service as a teacher on the basis of his academic qualification, how he will gain post-qualification teaching experience of three years as the condition of eligibility and how both these twin conditions would meet together. 26. Leaned counsel for the respondents even after seeking instructions from the department has come with the explanation that this being the statutory requirement, one is supposed to comply with at the time of initial appointment but he was unable to justify as to how the person on the basis of academic qualification, if not being permitted to teach, may acquire post qualification teaching experience as referred to under the Statute of the Bihar University Act or by CCIM Act, 1970 for entry into service and, in our considered view, the academic qualification and post qualification teaching experience of three years at the entry level post i.e. Lecturer in the instant case, are two different ends which are not possible to meet. 27. We are not going into this controversy any more and leave it at this stage for the reason that the requirement in terms of the notification dated 09th December, 1986 was never the subject matter of challenge and clause (c), in particular, clearly manifests that the verification of the list of eligible teaching employees working in the college would be considered by the Screening Committee duly constituted by the department as on the cut--off date i.e. 01st June, 1986 and it is the said date on which the minimum qualification and teaching skills of the individual has to be looked into by the Committee while adjudging his overall suitability for absorption. 28. Indisputedly, in the instant case, each of the appellants before this Court was holding the academic qualification while entered into service in the year 1978--1979 in the private Ayurvedic College and holding teaching experience of more than three years as on the cut- off date 01st June, 1986 in terms of notification dated 09th December 1986, when the Screening Committee was called upon to adjudge the overall suitability of the appellants for absorption and once the appellants were indeed eligible as on the cut--off date i.e. 01st June, 1986, the justification tendered by the Committee, in the first instance, that the appellants were not holding the post qualification teaching experience of three years on the date when they were initially appointed in the private Ayurvedic College in the year 1978- 1979, is not in conformity with the mandate of the Act 1985 read with notification dated 09th December, 1986. 29. In our considered view, the High Court under the impugned judgment has completely overlooked the scheme of the Act 1985 read with notification dated 09th December, 1986 pursuant to which the exercise was to be undertaken by the State Government for absorbing teaching/non--teaching employees of private Ayurvedic College and this was the apparent error committed by the High Court which, in our view, is not sustainable in law and deserves to be set aside. 30. Before parting with the order, it has been informed to this Court that in terms of the Government notification no. 6745 dated 30th July 2015, the age of superannuation of teachers has been extended upto 67 years and out of 5 teachers, 4 of them had attained the age of superannuation and one Dr. Mod Nath Mishra has time to serve the institution and may retire in the month of March, 2023. 31. Once we arrive at the conclusion that the finding of unfitness recorded by the Review Screening Committee was not sustainable in law which was the foundation for the Government to terminate the services of the appellants in consequence thereof, each one of them deserves to be reinstated in service with all consequential benefits.
### Response:
1
### Explanation:
will take a call in respect of each member of teaching staff on merits of each case whether to absorb him in the Government service or terminate his service or allow him to continue on ad hoc basis on a fixed term, as the case may be, but once a State Government in its wisdom has come out with the statutory notification issued in exercise of power under Section 3 of the Act dated 09th December, 1986 while taking assets of private Ayurvedic College and the hospitals attached thereto, at the same time, under Clause (c), a specific mandate has been authored to the Screening Committee to consider the minimum qualifications and teaching skills of the teachers as on the cut--off date i.e. 01st June, 1986 and on the conjoint reading of Section 6(2) of the Act 1985 read with notification dated 09th December, 1986, the State Government made its intention clear that as the decision has been taken to absorb the employee/teacher of the private Ayurvedic college as on 01st June, 1986, his bio--data is to be examined for various purposes, but while considering him for absorption, the Screening Committee constituted has to consider the eligibility of the employees/teachers regarding minimum qualifications and teaching skills as on the cut--off date i.e. 01st June, 1986 and the recommendation made by the Screening Committee will be considered by the State Government for absorption or for continuance in service or for termination, as the case may be, on case to case basis in terms of sub--Section (3) of Section 6 of the Act 1985.23. The additional reason appears to be since the service of the teacher will be reckoned from the date of absorption in the Government, the past service rendered in the private Ayurvedic college in terms of the affidavit filed by the State Government stands obliterated for all practical purposes. This further supports the eligibility of the teacher to be looked into as on the cut--off date, i.e. 01st June, 1986.24. Thus, the very premise on which the High Court has proceeded to examine the eligibility of the teachers as on the date they initially entered into service in the year 1978--1979 and arriving to the conclusion that the teachers who were not holding the post- qualification teaching experience of three years from recognized Ayurvedic college as referred to under the Statute would not be eligible for absorption in terms of the notification dated 09th December, 1986, in our considered view, is a clear misconception of law and deserves rejection.26. Leaned counsel for the respondents even after seeking instructions from the department has come with the explanation that this being the statutory requirement, one is supposed to comply with at the time of initial appointment but he was unable to justify as to how the person on the basis of academic qualification, if not being permitted to teach, may acquire post qualification teaching experience as referred to under the Statute of the Bihar University Act or by CCIM Act, 1970 for entry into service and, in our considered view, the academic qualification and post qualification teaching experience of three years at the entry level post i.e. Lecturer in the instant case, are two different ends which are not possible to meet.27. We are not going into this controversy any more and leave it at this stage for the reason that the requirement in terms of the notification dated 09th December, 1986 was never the subject matter of challenge and clause (c), in particular, clearly manifests that the verification of the list of eligible teaching employees working in the college would be considered by the Screening Committee duly constituted by the department as on the cut--off date i.e. 01st June, 1986 and it is the said date on which the minimum qualification and teaching skills of the individual has to be looked into by the Committee while adjudging his overall suitability for absorption.28. Indisputedly, in the instant case, each of the appellants before this Court was holding the academic qualification while entered into service in the year 1978--1979 in the private Ayurvedic College and holding teaching experience of more than three years as on the cut- off date 01st June, 1986 in terms of notification dated 09th December 1986, when the Screening Committee was called upon to adjudge the overall suitability of the appellants for absorption and once the appellants were indeed eligible as on the cut--off date i.e. 01st June, 1986, the justification tendered by the Committee, in the first instance, that the appellants were not holding the post qualification teaching experience of three years on the date when they were initially appointed in the private Ayurvedic College in the year 1978- 1979, is not in conformity with the mandate of the Act 1985 read with notification dated 09th December, 1986.29. In our considered view, the High Court under the impugned judgment has completely overlooked the scheme of the Act 1985 read with notification dated 09th December, 1986 pursuant to which the exercise was to be undertaken by the State Government for absorbing teaching/non--teaching employees of private Ayurvedic College and this was the apparent error committed by the High Court which, in our view, is not sustainable in law and deserves to be set aside.30. Before parting with the order, it has been informed to this Court that in terms of the Government notification no. 6745 dated 30th July 2015, the age of superannuation of teachers has been extended upto 67 years and out of 5 teachers, 4 of them had attained the age of superannuation and one Dr. Mod Nath Mishra has time to serve the institution and may retire in the month of March, 2023.31. Once we arrive at the conclusion that the finding of unfitness recorded by the Review Screening Committee was not sustainable in law which was the foundation for the Government to terminate the services of the appellants in consequence thereof, each one of them deserves to be reinstated in service with all consequential benefits.
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Chikkamma & Another Vs. Parvathamma & Another | 1. Leave granted.2. We have heard the learned counsels for the parties.3. The only issue that would require the decision of this Court is on the quantum of compensation that should be awarded to the appellants, who were the claimants in a proceeding under the Motor Vehicles Act, 1988. Compensation was sought on account of the death of one Srikanth, who died a bachelor leaving behind the appellant No.1 (Chikkamma), his mother aged about 58 years and his sister, the appellant No.2 (H.S. Susheela), a physically handicapped girl.4. The learned Tribunal by taking into account the age of the mother of the deceased, adopted the multiplier of 9. Holding that the deceased was earning an income of Rs.7,000/- per month, the computation was worked out at Rs.4.08 lakhs. To this, interest was awarded at the rate of 6% per annum from the date of filing of the claim petition till the date of payment.5. In appeal, the High Court enhanced the income of the deceased to Rs.9,000/- per month and maintained the multiplier adopted by the learned Tribunal i.e. 9. On the said basis, an additional amount of Rs.1.53 lakhs was awarded along with interest on the said enhanced amount payable from the date of the claim petition till the date of payment.6. While the issue with regard to adoption of the age of the deceased or that of the dependent for picking up an approximate multiplier, in a case where the deceased was a bachelor is pending before a larger Bench of this Court, we are of the view that in the facts of the present case, as the deceased had left his aged mother and a younger sister (physically handicapped), it is the age of the deceased which should be taken into account for adoption of the multiplier. On the said basis the multiplier which would require to be adopted is 17.7. The income of the deceased calculated at Rs.9,000/- per month does not disclose any apparent error nor does loss of dependency which has been worked out by the forums below at 50%. Taking into account the income of the deceased; loss of dependency and the multiplier now adopted, the total compensation awardable works out to Rs.9.18 lakhs. Out of this amount the forums below has already found the claimants to be entitled to Rs.5.61 lakhs. The balance of Rs.3.57 lakhs (Rs.9.18 lakhs minus 5.61 lakhs) will now be paid forthwith to the appellants-claimants which amount will carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till the date of payment.8. Learned counsel for the appellants has vehemently urged that some amount on account of future prospects should also be awarded while determining the entitlement of the appellants for the enhancement of compensation.9. Taking into account the fact that the deceased was a self employed person and also as the question with regard to award of future prospects of a self employed person is presently pending before a larger Bench of this Court and as some enhancement of compensation has already been made by us, we are of the view that in the facts of the present case, the claim for future prospects ought not to be gone into by us. | 1[ds]6. While the issue with regard to adoption of the age of the deceased or that of the dependent for picking up an approximate multiplier, in a case where the deceased was a bachelor is pending before a larger Bench of this Court, we are of the view that in the facts of the present case, as the deceased had left his aged mother and a younger sister (physically handicapped), it is the age of the deceased which should be taken into account for adoption of the multiplier. On the said basis the multiplier which would require to be adopted is 17.7. The income of the deceased calculated at Rs.9,000/per month does not disclose any apparent error nor does loss of dependency which has been worked out by the forums below at 50%. Taking into account the income of the deceased; loss of dependency and the multiplier now adopted, the total compensation awardable works out to Rs.9.18 lakhs. Out of this amount the forums below has already found the claimants to be entitled to Rs.5.61 lakhs. The balance of Rs.3.57 lakhs (Rs.9.18 lakhs minus 5.61 lakhs) will now be paid forthwith to thewhich amount will carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till the date of payment.Taking into account the fact that the deceased was a self employed person and also as the question with regard to award of future prospects of a self employed person is presently pending before a larger Bench of this Court and as some enhancement of compensation has already been made by us, we are of the view that in the facts of the present case, the claim for future prospects ought not to be gone into by us | 1 | 593 | 319 | ### Instruction:
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1. Leave granted.2. We have heard the learned counsels for the parties.3. The only issue that would require the decision of this Court is on the quantum of compensation that should be awarded to the appellants, who were the claimants in a proceeding under the Motor Vehicles Act, 1988. Compensation was sought on account of the death of one Srikanth, who died a bachelor leaving behind the appellant No.1 (Chikkamma), his mother aged about 58 years and his sister, the appellant No.2 (H.S. Susheela), a physically handicapped girl.4. The learned Tribunal by taking into account the age of the mother of the deceased, adopted the multiplier of 9. Holding that the deceased was earning an income of Rs.7,000/- per month, the computation was worked out at Rs.4.08 lakhs. To this, interest was awarded at the rate of 6% per annum from the date of filing of the claim petition till the date of payment.5. In appeal, the High Court enhanced the income of the deceased to Rs.9,000/- per month and maintained the multiplier adopted by the learned Tribunal i.e. 9. On the said basis, an additional amount of Rs.1.53 lakhs was awarded along with interest on the said enhanced amount payable from the date of the claim petition till the date of payment.6. While the issue with regard to adoption of the age of the deceased or that of the dependent for picking up an approximate multiplier, in a case where the deceased was a bachelor is pending before a larger Bench of this Court, we are of the view that in the facts of the present case, as the deceased had left his aged mother and a younger sister (physically handicapped), it is the age of the deceased which should be taken into account for adoption of the multiplier. On the said basis the multiplier which would require to be adopted is 17.7. The income of the deceased calculated at Rs.9,000/- per month does not disclose any apparent error nor does loss of dependency which has been worked out by the forums below at 50%. Taking into account the income of the deceased; loss of dependency and the multiplier now adopted, the total compensation awardable works out to Rs.9.18 lakhs. Out of this amount the forums below has already found the claimants to be entitled to Rs.5.61 lakhs. The balance of Rs.3.57 lakhs (Rs.9.18 lakhs minus 5.61 lakhs) will now be paid forthwith to the appellants-claimants which amount will carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till the date of payment.8. Learned counsel for the appellants has vehemently urged that some amount on account of future prospects should also be awarded while determining the entitlement of the appellants for the enhancement of compensation.9. Taking into account the fact that the deceased was a self employed person and also as the question with regard to award of future prospects of a self employed person is presently pending before a larger Bench of this Court and as some enhancement of compensation has already been made by us, we are of the view that in the facts of the present case, the claim for future prospects ought not to be gone into by us.
### Response:
1
### Explanation:
6. While the issue with regard to adoption of the age of the deceased or that of the dependent for picking up an approximate multiplier, in a case where the deceased was a bachelor is pending before a larger Bench of this Court, we are of the view that in the facts of the present case, as the deceased had left his aged mother and a younger sister (physically handicapped), it is the age of the deceased which should be taken into account for adoption of the multiplier. On the said basis the multiplier which would require to be adopted is 17.7. The income of the deceased calculated at Rs.9,000/per month does not disclose any apparent error nor does loss of dependency which has been worked out by the forums below at 50%. Taking into account the income of the deceased; loss of dependency and the multiplier now adopted, the total compensation awardable works out to Rs.9.18 lakhs. Out of this amount the forums below has already found the claimants to be entitled to Rs.5.61 lakhs. The balance of Rs.3.57 lakhs (Rs.9.18 lakhs minus 5.61 lakhs) will now be paid forthwith to thewhich amount will carry interest at the rate of 7.5% per annum from the date of filing of the claim petition till the date of payment.Taking into account the fact that the deceased was a self employed person and also as the question with regard to award of future prospects of a self employed person is presently pending before a larger Bench of this Court and as some enhancement of compensation has already been made by us, we are of the view that in the facts of the present case, the claim for future prospects ought not to be gone into by us
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Commissioner of Income Tax, Central, Calcutta Vs. National Taj Traders | statute which contain machinery provisions and by no stretch could s. 33B be regarded as a charging provision. As regards aspect (c) we have already pointed out above that a casus omissus has not to be readily inferred and it could not be inferred from the mere fact that both ss. 33B and 34(3) together with the second proviso were inserted simultaneously in the Act by the same Amending Act of 1948, and that in the case of the former a relaxing provision was not made as was made in the case of the latter provision, firstly because the two provisions operated in distinct fields and, secondly, it would be improper to do so without comparing the various stages of amendments through which each set of these provisions had undergone since inception. The further aspect that the legislature has in the 1961 Act made the requisite provision removing or relaxing the bar of limitation in s. 263(3) is, in our view, not of much consequence. Irrespective of the question whether the second proviso to s. 34(3) was enacted ex majore cautela or not (over which conflicting views obtain), it is clear to us that s. 263(3) of the 1961 Act must be regarded as an ex majore cautela provision. Admittedly, at the time when the said provision was enacted in the 1961 Act, the Bombay view held the field and there was no decision to the contrary of any other High Court. Obviously, therefore, the enactment of s. 263(3) must be regarded as declaratory of the law which was already prevailing and this position has been clarified in the Notes on Clauses of the Income-tax Bill, 1961, where it has been stated that sub-cl. (3) of s. 263 was new and had been added to get over the difficulty experienced in (wrongly stated caused by ) the Bombay High Courts decision in Solankis case [1960] 39 ITR 522. The enactment of an ex majore cautela provision in the 1961 Act would, therefore, be a legislative recognition of the legal position that obtained as a result of judicial pronouncement qua the 1922 Act. In our view, therefore, the Assam case was wrongly decidedReference may now be made to a decision of this court in Pooran Malls case [1974] 96 ITR 390 , where in a similar situation arising under s. 132 of the I.T. Act, 1961, a restricted construction was accorded by this court to sub-s. (5) thereof which prescribed certain period of limitation. In that case, pursuant to an authorisation issued under s. 132(1) of the 1961 Act, searches were carried out on October 15 and 16, 1971, at the residence and business premises of P, an individual, and at certain office premises of the firms in which he was a partner, and jewellery, cash and account books were seized. There was also a search of two banks and a restraint order was made under s. 132(3) in respect of 114 silver bars pledged with those banks on the ground that they were the property of P. On January 12, 1972, the ITO passed a summary order under s. 132(5) on the basis that all the assets seized and 114 silver bars belonged to P. Thereupon, P & Sons, one of the firms in which P was a partner, and P filed a writ petition in the High Court challenging the order dated January 12, 1972, and on April 6, 1977, on the basis of the consent of the parties, the High Court quashed the order and permitted the department to make a fresh enquiry after giving an opportunity to the petitioner and pass a fresh order within two months. After a fresh enquiry the ITO passed an order on June 5, 1972, holding that the silver bars belonged to P, the individual, and not the firm, P and Sons. Thereupon, the firm and P again filed a writ petition challenging the second order. The High Court held that the ITO had no jurisdiction to pass that order beyond the period prescribed in s. 132(5) and set aside the order and directed the return of the 114 bars of silver. This court held, inter alia, that the order made in pursuance of a direction given under s. 132(12) or by a court in writ proceedings, was not subject to the limitation prescribed under s. 132(5). At page 394, this court has observed thus:" Even if the period of time fixed under section 132(5) is held to be mandatory that was satisfied when the first order was made. Thereafter, if any direction is given under section 132(12) or by a court in writ proceedings, as in this case, we do not think an order made in pursuance of such a direction would be subject to the limitations prescribed under section 132(5). Once the order has been made within ninety days the aggrieved person has got the right to approach the notified authority under section 132(11) within thirty days and that authority can direct the Income-tax Officer to pass a fresh order. We cannot accept the contention on behalf of the respondents that even such a fresh order should be passed within ninety days. It would make the sub-sections (11) and (12) of section 132 ridiculous and useless." 5. It may be pointed out that in s. 132 there is no provision removing or relaxing the bar of limitation contained in s. 132(5) enabling the ITO to pass an order afresh pursuant to any direction issued to him by a higher authority under s. 132(12) and even then this court took the view that the limitation prescribed under s. 132(5) will be applicable only to the initial order to be made by the ITO and not to an order that would be made by him pursuant to a direction from the Board or notified authority. The concerned provisions were read together and such construction was put on sub-s. (5) of s. 132 as made a consistent enactment of the whole statute 6. | 1[ds]Having regard to the above discussion we are clearly of opinion that the view taken by the Bombay High Court in Solankis case [1960] 39 ITR 522 , on the construction ofsubs.(2)(b) of s. 33B is correct and we approve of it. In Sabitri Devi Agarwallas case [1970] 77 ITR 934, the Assam High Court took a contrary view and held that under s. 33B(4) of the Act the Tribunal would not be justified in remanding the case to the Commissioner after the two years had expired from the date of the order sought to be revised. The decision seems to rest on three aspects : (a) it being a fiscal statute the same must be strictly construed, (b) the bar of limitation contained insubs.(2)(b) was absolute and unqualified and covered all types of orders, and (c) that unlike the second proviso to s. 34(3), there was no provision for removing or relaxing the bar of limitation on the power of the Commissioner under s. 33B(2)(b) and that since s. 33B as well as s. 34(3) with the second proviso had been introduced in the Act by the same Amending Act of 1948, there was a deliberate omission to make a provision removing or relaxing the bar of limitation in s. 33B and for such an omission the remedy lay with the legislature and not with the court. The Assam High Court also alluded to the fact that under the 1961 Act the legislature had made a provision removing or relaxing the bar of limitation in s. 263(3). As regards aspect (b) we have already dealt with it above. As regards aspect (a), it is well settled that the principle that the fiscal statute should be construed strictly is applicable only to taxing provisions such as a charging provision or a provision imposing penalty and not to those parts of the statute which contain machinery provisions and by no stretch could s. 33B be regarded as a charging provision. As regards aspect (c) we have already pointed out above that a casus omissus has not to be readily inferred and it could not be inferred from the mere fact that both ss. 33B and 34(3) together with the second proviso were inserted simultaneously in the Act by the same Amending Act of 1948, and that in the case of the former a relaxing provision was not made as was made in the case of the latter provision, firstly because the two provisions operated in distinct fields and, secondly, it would be improper to do so without comparing the various stages of amendments through which each set of these provisions had undergone since inception. The further aspect that the legislature has in the 1961 Act made the requisite provision removing or relaxing the bar of limitation in s. 263(3) is, in our view, not of much consequence. Irrespective of the question whether the second proviso to s. 34(3) was enacted ex majore cautela or not (over which conflicting views obtain), it is clear to us that s. 263(3) of the 1961 Act must be regarded as an ex majore cautela provision. Admittedly, at the time when the said provision was enacted in the 1961 Act, the Bombay view held the field and there was no decision to the contrary of any other High Court. Obviously, therefore, the enactment of s. 263(3) must be regarded as declaratory of the law which was already prevailing and this position has been clarified in the Notes on Clauses of thex Bill, 1961, where it has been stated that. (3) of s. 263 was new and had been added to get over the difficulty experienced in (wrongly stated caused by ) the Bombay High Courts decision in Solankis case [1960] 39 ITR 522. The enactment of an ex majore cautela provision in the 1961 Act would, therefore, be a legislative recognition of the legal position that obtained as a result of judicial pronouncement qua the 1922 Act. In our view, therefore, the Assam case was wrongly decidedIt may be pointed out that in s. 132 there is no provision removing or relaxing the bar of limitation contained in s. 132(5) enabling the ITO to pass an order afresh pursuant to any direction issued to him by a higher authority under s. 132(12) and even then this court took the view that the limitation prescribed under s. 132(5) will be applicable only to the initial order to be made by the ITO and not to an order that would be made by him pursuant to a direction from the Board or notified authority. The concerned provisions were read together and such construction was put onsubs.(5) of s. 132 as made a consistent enactment of the whole statute | 1 | 5,874 | 915 | ### Instruction:
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statute which contain machinery provisions and by no stretch could s. 33B be regarded as a charging provision. As regards aspect (c) we have already pointed out above that a casus omissus has not to be readily inferred and it could not be inferred from the mere fact that both ss. 33B and 34(3) together with the second proviso were inserted simultaneously in the Act by the same Amending Act of 1948, and that in the case of the former a relaxing provision was not made as was made in the case of the latter provision, firstly because the two provisions operated in distinct fields and, secondly, it would be improper to do so without comparing the various stages of amendments through which each set of these provisions had undergone since inception. The further aspect that the legislature has in the 1961 Act made the requisite provision removing or relaxing the bar of limitation in s. 263(3) is, in our view, not of much consequence. Irrespective of the question whether the second proviso to s. 34(3) was enacted ex majore cautela or not (over which conflicting views obtain), it is clear to us that s. 263(3) of the 1961 Act must be regarded as an ex majore cautela provision. Admittedly, at the time when the said provision was enacted in the 1961 Act, the Bombay view held the field and there was no decision to the contrary of any other High Court. Obviously, therefore, the enactment of s. 263(3) must be regarded as declaratory of the law which was already prevailing and this position has been clarified in the Notes on Clauses of the Income-tax Bill, 1961, where it has been stated that sub-cl. (3) of s. 263 was new and had been added to get over the difficulty experienced in (wrongly stated caused by ) the Bombay High Courts decision in Solankis case [1960] 39 ITR 522. The enactment of an ex majore cautela provision in the 1961 Act would, therefore, be a legislative recognition of the legal position that obtained as a result of judicial pronouncement qua the 1922 Act. In our view, therefore, the Assam case was wrongly decidedReference may now be made to a decision of this court in Pooran Malls case [1974] 96 ITR 390 , where in a similar situation arising under s. 132 of the I.T. Act, 1961, a restricted construction was accorded by this court to sub-s. (5) thereof which prescribed certain period of limitation. In that case, pursuant to an authorisation issued under s. 132(1) of the 1961 Act, searches were carried out on October 15 and 16, 1971, at the residence and business premises of P, an individual, and at certain office premises of the firms in which he was a partner, and jewellery, cash and account books were seized. There was also a search of two banks and a restraint order was made under s. 132(3) in respect of 114 silver bars pledged with those banks on the ground that they were the property of P. On January 12, 1972, the ITO passed a summary order under s. 132(5) on the basis that all the assets seized and 114 silver bars belonged to P. Thereupon, P & Sons, one of the firms in which P was a partner, and P filed a writ petition in the High Court challenging the order dated January 12, 1972, and on April 6, 1977, on the basis of the consent of the parties, the High Court quashed the order and permitted the department to make a fresh enquiry after giving an opportunity to the petitioner and pass a fresh order within two months. After a fresh enquiry the ITO passed an order on June 5, 1972, holding that the silver bars belonged to P, the individual, and not the firm, P and Sons. Thereupon, the firm and P again filed a writ petition challenging the second order. The High Court held that the ITO had no jurisdiction to pass that order beyond the period prescribed in s. 132(5) and set aside the order and directed the return of the 114 bars of silver. This court held, inter alia, that the order made in pursuance of a direction given under s. 132(12) or by a court in writ proceedings, was not subject to the limitation prescribed under s. 132(5). At page 394, this court has observed thus:" Even if the period of time fixed under section 132(5) is held to be mandatory that was satisfied when the first order was made. Thereafter, if any direction is given under section 132(12) or by a court in writ proceedings, as in this case, we do not think an order made in pursuance of such a direction would be subject to the limitations prescribed under section 132(5). Once the order has been made within ninety days the aggrieved person has got the right to approach the notified authority under section 132(11) within thirty days and that authority can direct the Income-tax Officer to pass a fresh order. We cannot accept the contention on behalf of the respondents that even such a fresh order should be passed within ninety days. It would make the sub-sections (11) and (12) of section 132 ridiculous and useless." 5. It may be pointed out that in s. 132 there is no provision removing or relaxing the bar of limitation contained in s. 132(5) enabling the ITO to pass an order afresh pursuant to any direction issued to him by a higher authority under s. 132(12) and even then this court took the view that the limitation prescribed under s. 132(5) will be applicable only to the initial order to be made by the ITO and not to an order that would be made by him pursuant to a direction from the Board or notified authority. The concerned provisions were read together and such construction was put on sub-s. (5) of s. 132 as made a consistent enactment of the whole statute 6.
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### Explanation:
Having regard to the above discussion we are clearly of opinion that the view taken by the Bombay High Court in Solankis case [1960] 39 ITR 522 , on the construction ofsubs.(2)(b) of s. 33B is correct and we approve of it. In Sabitri Devi Agarwallas case [1970] 77 ITR 934, the Assam High Court took a contrary view and held that under s. 33B(4) of the Act the Tribunal would not be justified in remanding the case to the Commissioner after the two years had expired from the date of the order sought to be revised. The decision seems to rest on three aspects : (a) it being a fiscal statute the same must be strictly construed, (b) the bar of limitation contained insubs.(2)(b) was absolute and unqualified and covered all types of orders, and (c) that unlike the second proviso to s. 34(3), there was no provision for removing or relaxing the bar of limitation on the power of the Commissioner under s. 33B(2)(b) and that since s. 33B as well as s. 34(3) with the second proviso had been introduced in the Act by the same Amending Act of 1948, there was a deliberate omission to make a provision removing or relaxing the bar of limitation in s. 33B and for such an omission the remedy lay with the legislature and not with the court. The Assam High Court also alluded to the fact that under the 1961 Act the legislature had made a provision removing or relaxing the bar of limitation in s. 263(3). As regards aspect (b) we have already dealt with it above. As regards aspect (a), it is well settled that the principle that the fiscal statute should be construed strictly is applicable only to taxing provisions such as a charging provision or a provision imposing penalty and not to those parts of the statute which contain machinery provisions and by no stretch could s. 33B be regarded as a charging provision. As regards aspect (c) we have already pointed out above that a casus omissus has not to be readily inferred and it could not be inferred from the mere fact that both ss. 33B and 34(3) together with the second proviso were inserted simultaneously in the Act by the same Amending Act of 1948, and that in the case of the former a relaxing provision was not made as was made in the case of the latter provision, firstly because the two provisions operated in distinct fields and, secondly, it would be improper to do so without comparing the various stages of amendments through which each set of these provisions had undergone since inception. The further aspect that the legislature has in the 1961 Act made the requisite provision removing or relaxing the bar of limitation in s. 263(3) is, in our view, not of much consequence. Irrespective of the question whether the second proviso to s. 34(3) was enacted ex majore cautela or not (over which conflicting views obtain), it is clear to us that s. 263(3) of the 1961 Act must be regarded as an ex majore cautela provision. Admittedly, at the time when the said provision was enacted in the 1961 Act, the Bombay view held the field and there was no decision to the contrary of any other High Court. Obviously, therefore, the enactment of s. 263(3) must be regarded as declaratory of the law which was already prevailing and this position has been clarified in the Notes on Clauses of thex Bill, 1961, where it has been stated that. (3) of s. 263 was new and had been added to get over the difficulty experienced in (wrongly stated caused by ) the Bombay High Courts decision in Solankis case [1960] 39 ITR 522. The enactment of an ex majore cautela provision in the 1961 Act would, therefore, be a legislative recognition of the legal position that obtained as a result of judicial pronouncement qua the 1922 Act. In our view, therefore, the Assam case was wrongly decidedIt may be pointed out that in s. 132 there is no provision removing or relaxing the bar of limitation contained in s. 132(5) enabling the ITO to pass an order afresh pursuant to any direction issued to him by a higher authority under s. 132(12) and even then this court took the view that the limitation prescribed under s. 132(5) will be applicable only to the initial order to be made by the ITO and not to an order that would be made by him pursuant to a direction from the Board or notified authority. The concerned provisions were read together and such construction was put onsubs.(5) of s. 132 as made a consistent enactment of the whole statute
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M.C.D Vs. Shashnak Steel Industries (P) Ltd | keep in mind the purpose of the Deed in question. What was demised was an industrial plot. Initially, the lessee - Mohan Co-operative Industrial Estate Ltd. was given the authority to sub-lease the industrial plot on such premium and yearly rent as may be fixed by the lessor. Mohan Co-operative Industrial Estate Ltd. was a society registered under Bombay Co-operative Societies Act, 1925; one of its members appears to be M/s. Shashnak Steel Industries Pvt. Ltd. who had agreed under the Deed in question to set up an industrial unit. Under one of the terms, the sub-lessee was required to pay premium and rent to be fixed by the lessor. However, both rent and premium was payable by the sub-lessee to the lessee. As stated, the sub-lessee had agreed to put up at its own expense a factory on the industrial plot within two years from dated 20.2.81. Under the Deed the lessor had to estimate the capital value (including the enhancement) as and when the unit came up. It appears from the Deed that lessor was entitled to a share in the enhanced value. The said Deed further stated that the lessor shall have a right to recover 50% of the unearned increase as and when the lessor gives permission to the sub-lessee to transfer, assign or part with the possession of the plot to any other member of the lessee society. All these terms indicate that under the Deed parties contemplated that on the unit coming up on the leasehold land there would be an accretion in the value. In our view, the provision for premium was only an additional source of revenue. Therefore, we do not find any merit in the contention advanced on behalf of the Corporation that on payment of premium the sub-lessee became the owner of the leasehold rights. Further as rightly held by the High Court there are numbers of restrictions put on the sub-lessee which prevented the sub-lessee from full enjoyment of the leasehold rights. Under Clause 6(a) the sub-lessee was not entitled to sell, transfer, assign or part with possession of the whole or any part of the industrial plot to a person who is not a member of the lessee society - Mohan Co-operative Industrial Estate Ltd. Under Clause 6(b) it was not allowed to transfer, assign or part with possession to any other member of the lessee society, except with the prior consent in writing of the lessor which in its discretion is entitled to refuse such concept. Further, under Clause 6(b), in the event of consent being given, it was open to the lessor to claim a portion of the unearned increase in the value. Under Clause 16, on determination of the sub-lease, M/s. Shashnak Steel Industries Pvt. Ltd. herein had to yield up the industrial plot along with the buildings thereon unto the lessee/lessor. The said restrictions indicate that the said Deed did not operate as a conveyance.14. In this case, we are concerned with the question of primary liability on the vacant land during the period 1982 to 1987. During that period the factory had not come up. Therefore, there was no question of enhanced value on account of accretion taking place during the said period. Therefore, keeping in mind the restriction(s) placed on the sub-lessee we are of the opinion that this is a case of "letting". It is not the case of conferring ownership rights on the sub-lessee. Under the Deed, M/s. Shashnak Steel Industries Pvt. Ltd. remains a sub-lessee. In fact, there is forfeiture/re-entry provided for in the said lease. That right of forfeiture/re-entry can be effected either by the lessor or by the lessee which further shows that the sub-lessee is not in full enjoyment of the leasehold rights in the property in question.15. For the aforestated reasons on interpretation of the perpetual sub-lease dated 20.2.81, we are of the view that the said Deed cannot be construed as a conveyance of leasehold rights in favour of M/s. Shashnak Steel Industries Pvt. Ltd. We are of the view that this case is that of letting. Therefore, we do not find any infirmity in the impugned judgment. We also agree with the view taken by the Delhi High Court that a bare perusal of the Deed would show that the condition imposed on the sub-lessee to pay tax is only as a matter of indemnification and it would not indicate ownership of the leasehold rights in favour of the sub-lessee.16. Coming to the interpretation of the provisions of Section 120(1) of the said 1957 Act, at the outset we may state that the language of the said section suggests that the intention of the Legislature in fixing primary liability of property tax upon the owner of the land is to facilitate the collection of property tax. It is not unreasonable for the Legislature to impose the primary liability upon the lessor and to give him the right of recoupment. In this case, we are concerned only with the question as to whether the Corporation was right in imposing primary liability to pay property tax on the sub-lessee under Section 120(1)(c) of the said 1957 Act. Whether the liability was on Mohan Co-operative Industrial Estate Ltd., is not required to be gone into by us because that is not the case of the Corporation and also because the lease between the President of India and Mohan Co-operative Industrial Estate Ltd. dated 20.3.80 was not produced before us. We also do not know the basis on which premium was payable by the lessee to the lessor. 17. On a bare reading of Section 120(1)(c), in the context of the Deed dated 20.2.81, we find that the said Deed did not operate as a conveyance and that the industrial plot was let out to M/s. Shashnak Steel Industries Pvt. Ltd. Since there was letting in favour of the said company, Section 120(1)(c) of the said 1957 Act did not apply. 18. For the aforestated reasons, we | 0[ds]In this case great emphasis is placed by the Corporation on the fact that the sub-lessee was required to pay a sum of Rs.16093.60 as premium in addition to rent which according to the Corporation indicated purchase of leasehold rights. According to the Corporation on purchase of leasehold rights the sub-lessee became the owner thereof. We find no merit in this contention. If one looks at the Deed in question we find that the lessor has retained its right to determine periodically the rent payable and the premium chargeable. One has to keep in mind the purpose of the Deed in question. What was demised was an industrial plot. Initially, the lessee - Mohan Co-operative Industrial Estate Ltd. was given the authority to sub-lease the industrial plot on such premium and yearly rent as may be fixed by the lessor. Mohan Co-operative Industrial Estate Ltd. was a society registered under Bombay Co-operative Societies Act, 1925; one of its members appears to be M/s. Shashnak Steel Industries Pvt. Ltd. who had agreed under the Deed in question to set up an industrial unit. Under one of the terms, the sub-lessee was required to pay premium and rent to be fixed by the lessor. However, both rent and premium was payable by the sub-lessee to the lessee. As stated, the sub-lessee had agreed to put up at its own expense a factory on the industrial plot within two years from dated 20.2.81. Under the Deed the lessor had to estimate the capital value (including the enhancement) as and when the unit came up. It appears from the Deed that lessor was entitled to a share in the enhanced value. The said Deed further stated that the lessor shall have a right to recover 50% of the unearned increase as and when the lessor gives permission to the sub-lessee to transfer, assign or part with the possession of the plot to any other member of the lessee society. All these terms indicate that under the Deed parties contemplated that on the unit coming up on the leasehold land there would be an accretion in the value. In our view, the provision for premium was only an additional source of revenue. Therefore, we do not find any merit in the contention advanced on behalf of the Corporation that on payment of premium the sub-lessee became the owner of the leasehold rights. Further as rightly held by the High Court there are numbers of restrictions put on the sub-lessee which prevented the sub-lessee from full enjoyment of the leasehold rights. Under Clause 6(a) the sub-lessee was not entitled to sell, transfer, assign or part with possession of the whole or any part of the industrial plot to a person who is not a member of the lessee society - Mohan Co-operative Industrial Estate Ltd. Under Clause 6(b) it was not allowed to transfer, assign or part with possession to any other member of the lessee society, except with the prior consent in writing of the lessor which in its discretion is entitled to refuse such concept. Further, under Clause 6(b), in the event of consent being given, it was open to the lessor to claim a portion of the unearned increase in the value. Under Clause 16, on determination of the sub-lease, M/s. Shashnak Steel Industries Pvt. Ltd. herein had to yield up the industrial plot along with the buildings thereon unto the lessee/lessor. The said restrictions indicate that the said Deed did not operate as a conveyance.14. In this case, we are concerned with the question of primary liability on the vacant land during the period 1982 to 1987. During that period the factory had not come up. Therefore, there was no question of enhanced value on account of accretion taking place during the said period. Therefore, keeping in mind the restriction(s) placed on the sub-lessee we are of the opinion that this is a case of "letting". It is not the case of conferring ownership rights on the sub-lessee. Under the Deed, M/s. Shashnak Steel Industries Pvt. Ltd. remains a sub-lessee. In fact, there is forfeiture/re-entry provided for in the said lease. That right of forfeiture/re-entry can be effected either by the lessor or by the lessee which further shows that the sub-lessee is not in full enjoyment of the leasehold rights in the property in question.15. For the aforestated reasons on interpretation of the perpetual sub-lease dated 20.2.81, we are of the view that the said Deed cannot be construed as a conveyance of leasehold rights in favour of M/s. Shashnak Steel Industries Pvt. Ltd. We are of the view that this case is that of letting. Therefore, we do not find any infirmity in the impugned judgment. We also agree with the view taken by the Delhi High Court that a bare perusal of the Deed would show that the condition imposed on the sub-lessee to pay tax is only as a matter of indemnification and it would not indicate ownership of the leasehold rights in favour of the sub-lessee. | 0 | 4,911 | 928 | ### 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:
keep in mind the purpose of the Deed in question. What was demised was an industrial plot. Initially, the lessee - Mohan Co-operative Industrial Estate Ltd. was given the authority to sub-lease the industrial plot on such premium and yearly rent as may be fixed by the lessor. Mohan Co-operative Industrial Estate Ltd. was a society registered under Bombay Co-operative Societies Act, 1925; one of its members appears to be M/s. Shashnak Steel Industries Pvt. Ltd. who had agreed under the Deed in question to set up an industrial unit. Under one of the terms, the sub-lessee was required to pay premium and rent to be fixed by the lessor. However, both rent and premium was payable by the sub-lessee to the lessee. As stated, the sub-lessee had agreed to put up at its own expense a factory on the industrial plot within two years from dated 20.2.81. Under the Deed the lessor had to estimate the capital value (including the enhancement) as and when the unit came up. It appears from the Deed that lessor was entitled to a share in the enhanced value. The said Deed further stated that the lessor shall have a right to recover 50% of the unearned increase as and when the lessor gives permission to the sub-lessee to transfer, assign or part with the possession of the plot to any other member of the lessee society. All these terms indicate that under the Deed parties contemplated that on the unit coming up on the leasehold land there would be an accretion in the value. In our view, the provision for premium was only an additional source of revenue. Therefore, we do not find any merit in the contention advanced on behalf of the Corporation that on payment of premium the sub-lessee became the owner of the leasehold rights. Further as rightly held by the High Court there are numbers of restrictions put on the sub-lessee which prevented the sub-lessee from full enjoyment of the leasehold rights. Under Clause 6(a) the sub-lessee was not entitled to sell, transfer, assign or part with possession of the whole or any part of the industrial plot to a person who is not a member of the lessee society - Mohan Co-operative Industrial Estate Ltd. Under Clause 6(b) it was not allowed to transfer, assign or part with possession to any other member of the lessee society, except with the prior consent in writing of the lessor which in its discretion is entitled to refuse such concept. Further, under Clause 6(b), in the event of consent being given, it was open to the lessor to claim a portion of the unearned increase in the value. Under Clause 16, on determination of the sub-lease, M/s. Shashnak Steel Industries Pvt. Ltd. herein had to yield up the industrial plot along with the buildings thereon unto the lessee/lessor. The said restrictions indicate that the said Deed did not operate as a conveyance.14. In this case, we are concerned with the question of primary liability on the vacant land during the period 1982 to 1987. During that period the factory had not come up. Therefore, there was no question of enhanced value on account of accretion taking place during the said period. Therefore, keeping in mind the restriction(s) placed on the sub-lessee we are of the opinion that this is a case of "letting". It is not the case of conferring ownership rights on the sub-lessee. Under the Deed, M/s. Shashnak Steel Industries Pvt. Ltd. remains a sub-lessee. In fact, there is forfeiture/re-entry provided for in the said lease. That right of forfeiture/re-entry can be effected either by the lessor or by the lessee which further shows that the sub-lessee is not in full enjoyment of the leasehold rights in the property in question.15. For the aforestated reasons on interpretation of the perpetual sub-lease dated 20.2.81, we are of the view that the said Deed cannot be construed as a conveyance of leasehold rights in favour of M/s. Shashnak Steel Industries Pvt. Ltd. We are of the view that this case is that of letting. Therefore, we do not find any infirmity in the impugned judgment. We also agree with the view taken by the Delhi High Court that a bare perusal of the Deed would show that the condition imposed on the sub-lessee to pay tax is only as a matter of indemnification and it would not indicate ownership of the leasehold rights in favour of the sub-lessee.16. Coming to the interpretation of the provisions of Section 120(1) of the said 1957 Act, at the outset we may state that the language of the said section suggests that the intention of the Legislature in fixing primary liability of property tax upon the owner of the land is to facilitate the collection of property tax. It is not unreasonable for the Legislature to impose the primary liability upon the lessor and to give him the right of recoupment. In this case, we are concerned only with the question as to whether the Corporation was right in imposing primary liability to pay property tax on the sub-lessee under Section 120(1)(c) of the said 1957 Act. Whether the liability was on Mohan Co-operative Industrial Estate Ltd., is not required to be gone into by us because that is not the case of the Corporation and also because the lease between the President of India and Mohan Co-operative Industrial Estate Ltd. dated 20.3.80 was not produced before us. We also do not know the basis on which premium was payable by the lessee to the lessor. 17. On a bare reading of Section 120(1)(c), in the context of the Deed dated 20.2.81, we find that the said Deed did not operate as a conveyance and that the industrial plot was let out to M/s. Shashnak Steel Industries Pvt. Ltd. Since there was letting in favour of the said company, Section 120(1)(c) of the said 1957 Act did not apply. 18. For the aforestated reasons, we
### Response:
0
### Explanation:
In this case great emphasis is placed by the Corporation on the fact that the sub-lessee was required to pay a sum of Rs.16093.60 as premium in addition to rent which according to the Corporation indicated purchase of leasehold rights. According to the Corporation on purchase of leasehold rights the sub-lessee became the owner thereof. We find no merit in this contention. If one looks at the Deed in question we find that the lessor has retained its right to determine periodically the rent payable and the premium chargeable. One has to keep in mind the purpose of the Deed in question. What was demised was an industrial plot. Initially, the lessee - Mohan Co-operative Industrial Estate Ltd. was given the authority to sub-lease the industrial plot on such premium and yearly rent as may be fixed by the lessor. Mohan Co-operative Industrial Estate Ltd. was a society registered under Bombay Co-operative Societies Act, 1925; one of its members appears to be M/s. Shashnak Steel Industries Pvt. Ltd. who had agreed under the Deed in question to set up an industrial unit. Under one of the terms, the sub-lessee was required to pay premium and rent to be fixed by the lessor. However, both rent and premium was payable by the sub-lessee to the lessee. As stated, the sub-lessee had agreed to put up at its own expense a factory on the industrial plot within two years from dated 20.2.81. Under the Deed the lessor had to estimate the capital value (including the enhancement) as and when the unit came up. It appears from the Deed that lessor was entitled to a share in the enhanced value. The said Deed further stated that the lessor shall have a right to recover 50% of the unearned increase as and when the lessor gives permission to the sub-lessee to transfer, assign or part with the possession of the plot to any other member of the lessee society. All these terms indicate that under the Deed parties contemplated that on the unit coming up on the leasehold land there would be an accretion in the value. In our view, the provision for premium was only an additional source of revenue. Therefore, we do not find any merit in the contention advanced on behalf of the Corporation that on payment of premium the sub-lessee became the owner of the leasehold rights. Further as rightly held by the High Court there are numbers of restrictions put on the sub-lessee which prevented the sub-lessee from full enjoyment of the leasehold rights. Under Clause 6(a) the sub-lessee was not entitled to sell, transfer, assign or part with possession of the whole or any part of the industrial plot to a person who is not a member of the lessee society - Mohan Co-operative Industrial Estate Ltd. Under Clause 6(b) it was not allowed to transfer, assign or part with possession to any other member of the lessee society, except with the prior consent in writing of the lessor which in its discretion is entitled to refuse such concept. Further, under Clause 6(b), in the event of consent being given, it was open to the lessor to claim a portion of the unearned increase in the value. Under Clause 16, on determination of the sub-lease, M/s. Shashnak Steel Industries Pvt. Ltd. herein had to yield up the industrial plot along with the buildings thereon unto the lessee/lessor. The said restrictions indicate that the said Deed did not operate as a conveyance.14. In this case, we are concerned with the question of primary liability on the vacant land during the period 1982 to 1987. During that period the factory had not come up. Therefore, there was no question of enhanced value on account of accretion taking place during the said period. Therefore, keeping in mind the restriction(s) placed on the sub-lessee we are of the opinion that this is a case of "letting". It is not the case of conferring ownership rights on the sub-lessee. Under the Deed, M/s. Shashnak Steel Industries Pvt. Ltd. remains a sub-lessee. In fact, there is forfeiture/re-entry provided for in the said lease. That right of forfeiture/re-entry can be effected either by the lessor or by the lessee which further shows that the sub-lessee is not in full enjoyment of the leasehold rights in the property in question.15. For the aforestated reasons on interpretation of the perpetual sub-lease dated 20.2.81, we are of the view that the said Deed cannot be construed as a conveyance of leasehold rights in favour of M/s. Shashnak Steel Industries Pvt. Ltd. We are of the view that this case is that of letting. Therefore, we do not find any infirmity in the impugned judgment. We also agree with the view taken by the Delhi High Court that a bare perusal of the Deed would show that the condition imposed on the sub-lessee to pay tax is only as a matter of indemnification and it would not indicate ownership of the leasehold rights in favour of the sub-lessee.
|
Commissioner of Income Tax, Delhi and Rajasthan Vs. Webbing and Belting Factory Private Limited | the manufactured cloth through the canvassing agents of the Common-wealth Trust Limited, but without the labels of the said Trusts. This is apparent from a letter produced before me in which the Common-wealth Trust Limited agreed to sell the goods through its canvassers. I also find that the production of handloom cloth during the various months was as under:Rs February 1947 14, 348 March do. 30, 254 April do. 11, 692 May do. 3, 000 June do. 2, 743 July do. 9, 897 August do. 5, 934 November do. 67 December do. 631 A total production of Rs. 67, 085 cannot be described as pure experimental production and it is not merely the production of samples of launching the bigger production scheme of the assessee. It is true that the assessee was not able to manufacture all the contemplated varieties, yet they had commenced producing goods on the handlooms installed by them in the Bela Road factory prior to 31st March, 1948 The contention of the assessee that during these months they had to consume the quota of yarn allotted to them monthly has not much force as the fact remains that the manufacture was carried on. The factory had begun to manufacture articles before 1st April, 1948, and, therefore, is not entitled to the exemption laid down under section 15C." It would be noticed from the order of the Appellate Assistant Commissioner that he did not reject the contention of the assessee, which the Income-tax Officer had apparently accepted, i.e., that a pilot project had been set up by the assessee. He further found that because the total production amounted to Rs. 67, 085, it could not be described as " pure experimental production." It is difficult to understand the exact import of the words " pure experimental production ", in the context 7. The High Court first set out some undisputed facts some of which it took from the order of the Income-tax Officer and some from the order of the Appellate Assistant Commissioner. Regarding the purely experimental nature of production, the High Court felt that the question in issue was : " Whether the transfer of any machinery or plant to a new business, however small a portion the plant or machinery so transferred forms of the plant or machinery of the new business, automatically has the effect of denying the new business the concession under section 15C. With this is involved the question whether the manufacture of cloth at the Bela Road factory was undertaken merely by way of an experiment and as training for the start of what might be called the new business of the manufacture of handloom furnishing fabrics." The High Court observed:" On this point the learned counsel for the Commissioner has argued that we cannot question the finding of fact of the Appellate Assistant Commissioner that the sale of cloth worth Rs. 67, 000 in 1947, could not be described as purely experimental production. I find, however, that the Income-tax Officer accepted the fact that the production before the 1st of April, 1948, was experimental, and that the pilot plant consisting of the handlooms became the starting point of the enterprise. Moreover, what we are to consider is a question of law arising out of the final order of the Appellate Tribunal which has not expressed any opinion either as to whether the manufacture in 1947, was by way of experiment and training, but has based its decision entirely on the fact that some looms were transferred to the new factory. I therefore do not consider that I am precluded from expressing the opinion that the fact that sales amounted to Rs. 67, 000 in 1947, in no way rebutted the contention of the assessee that the production at the Bela Road factory of one simple kind of cloth was by way of experiment and training, and this opinion is supported by the fact that in the fourth year of production of the new factory sales had risen to Rs. 15, 00, 000." The High Court then concluded:" In my opinion a provision of this kind which is intended to encourage the setting up of new industrial enterprises must be construed liberally and on this view of the matter I consider that the opening of the factory at Ghaziabad was a new enterprise encouraged by the successful experiment, and that the fact that what apparently amounts to about 35% of the machinery or plant used in the factory had been used before the 1st of April, 1948, does not preclude the factory at Ghaziabad from enjoying the concession granted under section 15C." It seems to us that the High Court has exceeded its jurisdiction under section 66 of the Indian Income-tax Act. It is true that the Income-tax Officer had apparently accepted the fact that the production before April 1, 1948, was experimental, but the Appellate Assistant Commissioner had merely stated that a total production of Rs. 67, 085 could not be described as " pure experimental production ". In other words, the Appellate Assistant Commissioner did not give a clear finding whether the assessee had put up a pilot plant or not. In view of these circumstances, the High Court should have called for a supplementary statement under section 66(4) of the Indian Income-tax Act and not gone into the facts itself and come to the conclusion that the Income-tax Officer was right in holding that a pilot plant had been set up by the assessee, which became the starting point of the enterprise 8. Accordingly we set aside the judgment of the High Court and remand the case to it with the direction that it should call for a supplementary statement from the Appellate Tribunal and then deal with the reference according to law. As the point on which we are allowing the appeal was not taken in the statement of the case, the learned counsel for the assessee contends that the assessee should not be burdened with costs. | 1[ds]6. On going through the correspondence, I find that the goods produced by the Bela Road factory were completed except to the extent that they were not bleached by the regular bleaching plant but by local dhobis etc., and as the local dhobis were not able to do expert work, the assessee chose to sell all the manufactured cloth through the canvassing agents of theh Trust Limited, but without the labels of the said Trusts. This is apparent from a letter produced before me in which theFebruary 1947 14, 348March do. 30, 254April do. 11, 692May do. 3, 000June do. 2, 743July do. 9, 897August do. 5, 934November do. 67December do. 631A total production of Rs. 67, 085 cannot be described as pure experimental production and it is not merely the production of samples of launching the bigger production scheme of the assessee. It is true that the assessee was not able to manufacture all the contemplated varieties, yet they had commenced producing goods on the handlooms installed by them in the Bela Road factory prior to 31st March, 1948The contention of the assessee that during these months they had to consume the quota of yarn allotted to them monthly has not much force as the fact remains that the manufacture was carried on. The factory had begun to manufacture articles before 1st April, 1948, and, therefore, is not entitled to the exemption laid down under section 15C."It would be noticed from the order of the Appellate Assistant Commissioner that he did not reject the contention of the assessee, which thex Officer had apparently accepted, i.e., that a pilot project had been set up by the assessee. He further found that because the total production amounted to Rs. 67, 085, it could not be described as " pure experimental production." It is difficult to understand the exact import of the words " pure experimental production ", in the contextIt seems to us that the High Court has exceeded its jurisdiction under section 66 of the Indianx Act. It is true that thex Officer had apparently accepted the fact that the production before April 1, 1948, was experimental, but the Appellate Assistant Commissioner had merely stated that a total production of Rs. 67, 085 could not be described as " pure experimental production ". In other words, the Appellate Assistant Commissioner did not give a clear finding whether the assessee had put up a pilot plant or not. In view of these circumstances, the High Court should have called for a supplementary statement under section 66(4) of the Indianx Act and not gone into the facts itself and come to the conclusion that thex Officer was right in holding that a pilot plant had been set up by the assessee, which became the starting point of the enterprise8. Accordingly we set aside the judgment of the High Court and remand the case to it with the direction that it should call for a supplementary statement from the Appellate Tribunal and then deal with the reference according to law. As the point on which we are allowing the appeal was not taken in the statement of the case, the learned counsel for the assessee contends that the assessee should not be burdened with costs. | 1 | 2,653 | 609 | ### 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 manufactured cloth through the canvassing agents of the Common-wealth Trust Limited, but without the labels of the said Trusts. This is apparent from a letter produced before me in which the Common-wealth Trust Limited agreed to sell the goods through its canvassers. I also find that the production of handloom cloth during the various months was as under:Rs February 1947 14, 348 March do. 30, 254 April do. 11, 692 May do. 3, 000 June do. 2, 743 July do. 9, 897 August do. 5, 934 November do. 67 December do. 631 A total production of Rs. 67, 085 cannot be described as pure experimental production and it is not merely the production of samples of launching the bigger production scheme of the assessee. It is true that the assessee was not able to manufacture all the contemplated varieties, yet they had commenced producing goods on the handlooms installed by them in the Bela Road factory prior to 31st March, 1948 The contention of the assessee that during these months they had to consume the quota of yarn allotted to them monthly has not much force as the fact remains that the manufacture was carried on. The factory had begun to manufacture articles before 1st April, 1948, and, therefore, is not entitled to the exemption laid down under section 15C." It would be noticed from the order of the Appellate Assistant Commissioner that he did not reject the contention of the assessee, which the Income-tax Officer had apparently accepted, i.e., that a pilot project had been set up by the assessee. He further found that because the total production amounted to Rs. 67, 085, it could not be described as " pure experimental production." It is difficult to understand the exact import of the words " pure experimental production ", in the context 7. The High Court first set out some undisputed facts some of which it took from the order of the Income-tax Officer and some from the order of the Appellate Assistant Commissioner. Regarding the purely experimental nature of production, the High Court felt that the question in issue was : " Whether the transfer of any machinery or plant to a new business, however small a portion the plant or machinery so transferred forms of the plant or machinery of the new business, automatically has the effect of denying the new business the concession under section 15C. With this is involved the question whether the manufacture of cloth at the Bela Road factory was undertaken merely by way of an experiment and as training for the start of what might be called the new business of the manufacture of handloom furnishing fabrics." The High Court observed:" On this point the learned counsel for the Commissioner has argued that we cannot question the finding of fact of the Appellate Assistant Commissioner that the sale of cloth worth Rs. 67, 000 in 1947, could not be described as purely experimental production. I find, however, that the Income-tax Officer accepted the fact that the production before the 1st of April, 1948, was experimental, and that the pilot plant consisting of the handlooms became the starting point of the enterprise. Moreover, what we are to consider is a question of law arising out of the final order of the Appellate Tribunal which has not expressed any opinion either as to whether the manufacture in 1947, was by way of experiment and training, but has based its decision entirely on the fact that some looms were transferred to the new factory. I therefore do not consider that I am precluded from expressing the opinion that the fact that sales amounted to Rs. 67, 000 in 1947, in no way rebutted the contention of the assessee that the production at the Bela Road factory of one simple kind of cloth was by way of experiment and training, and this opinion is supported by the fact that in the fourth year of production of the new factory sales had risen to Rs. 15, 00, 000." The High Court then concluded:" In my opinion a provision of this kind which is intended to encourage the setting up of new industrial enterprises must be construed liberally and on this view of the matter I consider that the opening of the factory at Ghaziabad was a new enterprise encouraged by the successful experiment, and that the fact that what apparently amounts to about 35% of the machinery or plant used in the factory had been used before the 1st of April, 1948, does not preclude the factory at Ghaziabad from enjoying the concession granted under section 15C." It seems to us that the High Court has exceeded its jurisdiction under section 66 of the Indian Income-tax Act. It is true that the Income-tax Officer had apparently accepted the fact that the production before April 1, 1948, was experimental, but the Appellate Assistant Commissioner had merely stated that a total production of Rs. 67, 085 could not be described as " pure experimental production ". In other words, the Appellate Assistant Commissioner did not give a clear finding whether the assessee had put up a pilot plant or not. In view of these circumstances, the High Court should have called for a supplementary statement under section 66(4) of the Indian Income-tax Act and not gone into the facts itself and come to the conclusion that the Income-tax Officer was right in holding that a pilot plant had been set up by the assessee, which became the starting point of the enterprise 8. Accordingly we set aside the judgment of the High Court and remand the case to it with the direction that it should call for a supplementary statement from the Appellate Tribunal and then deal with the reference according to law. As the point on which we are allowing the appeal was not taken in the statement of the case, the learned counsel for the assessee contends that the assessee should not be burdened with costs.
### Response:
1
### Explanation:
6. On going through the correspondence, I find that the goods produced by the Bela Road factory were completed except to the extent that they were not bleached by the regular bleaching plant but by local dhobis etc., and as the local dhobis were not able to do expert work, the assessee chose to sell all the manufactured cloth through the canvassing agents of theh Trust Limited, but without the labels of the said Trusts. This is apparent from a letter produced before me in which theFebruary 1947 14, 348March do. 30, 254April do. 11, 692May do. 3, 000June do. 2, 743July do. 9, 897August do. 5, 934November do. 67December do. 631A total production of Rs. 67, 085 cannot be described as pure experimental production and it is not merely the production of samples of launching the bigger production scheme of the assessee. It is true that the assessee was not able to manufacture all the contemplated varieties, yet they had commenced producing goods on the handlooms installed by them in the Bela Road factory prior to 31st March, 1948The contention of the assessee that during these months they had to consume the quota of yarn allotted to them monthly has not much force as the fact remains that the manufacture was carried on. The factory had begun to manufacture articles before 1st April, 1948, and, therefore, is not entitled to the exemption laid down under section 15C."It would be noticed from the order of the Appellate Assistant Commissioner that he did not reject the contention of the assessee, which thex Officer had apparently accepted, i.e., that a pilot project had been set up by the assessee. He further found that because the total production amounted to Rs. 67, 085, it could not be described as " pure experimental production." It is difficult to understand the exact import of the words " pure experimental production ", in the contextIt seems to us that the High Court has exceeded its jurisdiction under section 66 of the Indianx Act. It is true that thex Officer had apparently accepted the fact that the production before April 1, 1948, was experimental, but the Appellate Assistant Commissioner had merely stated that a total production of Rs. 67, 085 could not be described as " pure experimental production ". In other words, the Appellate Assistant Commissioner did not give a clear finding whether the assessee had put up a pilot plant or not. In view of these circumstances, the High Court should have called for a supplementary statement under section 66(4) of the Indianx Act and not gone into the facts itself and come to the conclusion that thex Officer was right in holding that a pilot plant had been set up by the assessee, which became the starting point of the enterprise8. Accordingly we set aside the judgment of the High Court and remand the case to it with the direction that it should call for a supplementary statement from the Appellate Tribunal and then deal with the reference according to law. As the point on which we are allowing the appeal was not taken in the statement of the case, the learned counsel for the assessee contends that the assessee should not be burdened with costs.
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Gangabai W/O Rambilas Gilda Vs. Chhabubai W/O Pukharajji Gandhi | laid down that a Court of Small Causes could be described as a court of "preferential jurisdiction" but not as court of "exclusive jurisdiction". It was also held by the Full Bench that a decision rendered by a Court of Small Causes in a suit for arrears of rent would not operate as res judicata in a subsequent suit filed in the Court of the Munsif for recovery of arrears of rent for a different period and for ejectment. That the principle of res judicata could not be availed of where a decision given by a Court of Small Causes was relied on in a subsequent regular civil suit was the view also taken by the Punjab High Court in Pateshwar Parshad Singh v. A. S. Gilani.It seems to us that when a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot 1182 be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest in immovable property. In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue sh ould have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purposes of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata. It has long been held that a question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised. Poholi Mullick v. Fukeer C hunder Patnaik, Chet Ram and others v. Ganga, Anwar Ali v. Nur-Ul-Haq and Another, Khandu valad Keru v. Tatia valad Vithoba. See also Mohd. Yusuf and another v. Abdul Wahid and S.A.A. A nnamallai Chettiar v. Molaiyan and others. Our attention has been drawn to Explanation VIII to s. 11 in the Code of Civil Procedure recently inserted by the Code of Civil Procedure (Amendment) Act, 1976. Section 97(3) of the Amendment Act dec lares that the new provision applies to pending suits, proceedings, appeals and applications. In our opinion the Explanation can be of no assistance, because it operates only where an issue has been heard and finally decided in the earlier suit.8. Accordingly, we hold that the finding rendered by the Court of Small Causes in the two suits filed by the appellant that the document executed by the respondent is a sale deed cannot operate as res judicata in the present suit.The next contention on behalf of the appellant is that sub-s.(1) of s. 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-s. (1) of s. 92 declares that when the term s of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms And the first proviso to s. 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-s. (1) of s. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and int ent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms . The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party a sserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties. Tyagaraja Mudaliyar and another v. Vedathanni. The Trial Court was right in permitting the respondent to lead parole evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parole evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail. | 0[ds]The High Court repelled the plea of res judicata on the ground that s. 11 of theCode of Civil Procedure govern ed the case, and that as a Court of Small Causes is not competent to try a suit for a declaration of title to immovable property, the court which passed the decrees relied on by the appellant was not competent to try the present suit and therefore an imperative condition of s. 11 was notis contended before us on behalf of the appellant that the High Court erred in applying the statutory provisions of s. 11 of the Code, and should have invoke d instead the general principles of res judicata. On that, it is submitted, all that was necessary to find was whether the Court of Small Causes was competent to try the two earlier suits and decide the issues arisingwe hold that the finding rendered by the Court of Small Causes in the two suits filed by the appellant that the document executed by the respondent is a sale deed cannot operate as res judicata in the present suit.The next contention on behalf of the appellant is that sub-s.(1) of s. 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-s. (1) of s. 92 declares that when the term s of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms And the first proviso to s. 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-s. (1) of s. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and int ent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms . The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party a sserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between theMudaliyar and another v. Vedathanni. The Trial Court was right in permitting the respondent to lead parole evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parole evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must alsohave consi dered them and we do not think that they help the appellant. In Muhammad Abdul Ghafur Khan v. Gokul Prasad and others the Allahabad High Court limited itself to observing that a Court of Small Causes possessed a discretion on whether to return the plaint under s. 23, Provincial Small Cause Courts Act on a finding that the relief claimed depended on proof of title. The same High Court in Madan Kishor and Another v. Mahabir Prasad and others merely observed that it was for the Court of Small Causes to decide under s. 23 of the Provincial Small Cause Courts Act whether a question of title was involved in the suit and on finding so it was open to it to return the plaint. That was also the view expressed by it in Ram Dayal Sonar v. Sukh Mangat Kalwat. So also in Ganga Prasad v. Nandu Ram, the Patna High Court said that the Court of Small Causes had power under s. 23 to return the plaint where it was of opinion that the question of title raised was so intricate that it should n ot be decided summarily. To the same effect was the view expressed by the Lahore High Court in Ganesh Das v. Feroze Din. | 0 | 2,698 | 996 | ### Instruction:
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laid down that a Court of Small Causes could be described as a court of "preferential jurisdiction" but not as court of "exclusive jurisdiction". It was also held by the Full Bench that a decision rendered by a Court of Small Causes in a suit for arrears of rent would not operate as res judicata in a subsequent suit filed in the Court of the Munsif for recovery of arrears of rent for a different period and for ejectment. That the principle of res judicata could not be availed of where a decision given by a Court of Small Causes was relied on in a subsequent regular civil suit was the view also taken by the Punjab High Court in Pateshwar Parshad Singh v. A. S. Gilani.It seems to us that when a finding as to title to immovable property is rendered by a Court of Small Causes res judicata cannot 1182 be pleaded as a bar in a subsequent regular civil suit for the determination or enforcement of any right or interest in immovable property. In order to operate as res judicata the finding must be one disposing of a matter directly and substantially in issue in the former suit and the issue sh ould have been heard and finally decided by the court trying such suit. A matter which is collaterally or incidentally in issue for the purposes of deciding the matter which is directly in issue in the case cannot be made the basis of a plea of res judicata. It has long been held that a question of title in a Small Cause suit can be regarded as incidental only to the substantial issue in the suit and cannot operate as res judicata in a subsequent suit in which the question of title is directly raised. Poholi Mullick v. Fukeer C hunder Patnaik, Chet Ram and others v. Ganga, Anwar Ali v. Nur-Ul-Haq and Another, Khandu valad Keru v. Tatia valad Vithoba. See also Mohd. Yusuf and another v. Abdul Wahid and S.A.A. A nnamallai Chettiar v. Molaiyan and others. Our attention has been drawn to Explanation VIII to s. 11 in the Code of Civil Procedure recently inserted by the Code of Civil Procedure (Amendment) Act, 1976. Section 97(3) of the Amendment Act dec lares that the new provision applies to pending suits, proceedings, appeals and applications. In our opinion the Explanation can be of no assistance, because it operates only where an issue has been heard and finally decided in the earlier suit.8. Accordingly, we hold that the finding rendered by the Court of Small Causes in the two suits filed by the appellant that the document executed by the respondent is a sale deed cannot operate as res judicata in the present suit.The next contention on behalf of the appellant is that sub-s.(1) of s. 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-s. (1) of s. 92 declares that when the term s of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms And the first proviso to s. 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-s. (1) of s. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and int ent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms . The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party a sserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between the parties. Tyagaraja Mudaliyar and another v. Vedathanni. The Trial Court was right in permitting the respondent to lead parole evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parole evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must also fail.
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The High Court repelled the plea of res judicata on the ground that s. 11 of theCode of Civil Procedure govern ed the case, and that as a Court of Small Causes is not competent to try a suit for a declaration of title to immovable property, the court which passed the decrees relied on by the appellant was not competent to try the present suit and therefore an imperative condition of s. 11 was notis contended before us on behalf of the appellant that the High Court erred in applying the statutory provisions of s. 11 of the Code, and should have invoke d instead the general principles of res judicata. On that, it is submitted, all that was necessary to find was whether the Court of Small Causes was competent to try the two earlier suits and decide the issues arisingwe hold that the finding rendered by the Court of Small Causes in the two suits filed by the appellant that the document executed by the respondent is a sale deed cannot operate as res judicata in the present suit.The next contention on behalf of the appellant is that sub-s.(1) of s. 92 of the Evidence Act bars the respondent from contending that there was no sale and, it is submitted, the respondent should not have been permitted to lead parole evidence in support of the contention. Section 91 of the Evidence Act provides that when the terms of contract, or of a grant, or of any other disposition of property, have been reduced to the form of a document, and in all cases in which any matter is required by law to be reduced to the form of a document, no evidence shall be given in proof of the terms of such contract, grant or other disposition of property, or of such matter, except the document itself. Sub-s. (1) of s. 92 declares that when the term s of any contract, grant or other disposition of property, or any matter required by law to be reduced to the form of a document, have been proved according to the last section, no evidence of any oral agreement or statement shall be admitted, as between the parties to any such instrument or their representatives in interest, for the purpose of contradicting, varying, adding to, or subtracting from, its terms And the first proviso to s. 92 says that any fact may be proved which would invalidate any document, or which would entitle any person to any decree or order relating thereto; such as fraud, intimidation, illegality, want of due execution, want of capacity in any contradicting party, want or failure of consideration, or mistake in fact or law. It is clear to us that the bar imposed by sub-s. (1) of s. 92 applies only when a party seeks to rely upon the document embodying the terms of the transaction. In that event, the law declares that the nature and int ent of the transaction must be gathered from the terms of the document itself and no evidence of any oral agreement or statement can be admitted as between the parties to such document for the purpose of contradicting or modifying its terms . The sub- section is not attracted when the case of a party is that the transaction recorded in the document was never intended to be acted upon at all between the parties and that the document is a sham. Such a question arises when the party a sserts that there was a different transaction altogether and what is recorded in the document was intended to be of no consequence whatever. For that purpose oral evidence is admissible to show that the document executed was never intended to operate as an agreement but that some other agreement altogether not recorded in the document, was entered into between theMudaliyar and another v. Vedathanni. The Trial Court was right in permitting the respondent to lead parole evidence in support of her plea that the sale deed dated January 7, 1953 was a sham document and never intended to be acted upon. It is not disputed that if the parole evidence is admissible, the finding of the court below in favour of the respondent must be accepted. The second contention on behalf of the appellant must alsohave consi dered them and we do not think that they help the appellant. In Muhammad Abdul Ghafur Khan v. Gokul Prasad and others the Allahabad High Court limited itself to observing that a Court of Small Causes possessed a discretion on whether to return the plaint under s. 23, Provincial Small Cause Courts Act on a finding that the relief claimed depended on proof of title. The same High Court in Madan Kishor and Another v. Mahabir Prasad and others merely observed that it was for the Court of Small Causes to decide under s. 23 of the Provincial Small Cause Courts Act whether a question of title was involved in the suit and on finding so it was open to it to return the plaint. That was also the view expressed by it in Ram Dayal Sonar v. Sukh Mangat Kalwat. So also in Ganga Prasad v. Nandu Ram, the Patna High Court said that the Court of Small Causes had power under s. 23 to return the plaint where it was of opinion that the question of title raised was so intricate that it should n ot be decided summarily. To the same effect was the view expressed by the Lahore High Court in Ganesh Das v. Feroze Din.
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M.V. SUBRAMANYA Vs. NEW INDIA ASSURANCE CO. LTD. AND OTHERS | S.N. Variava and H.K. Sema, JJ. 1. This appeal is against an order passed by the High Court of Karnataka dismissing the review petition. 2. Briefly stated the facts are: On 6.11.1986 an accident took place. The claimants filed a claim before the Motor Accidents Claims Tribunal. The insurance company disputed the claim, inter alia, on the ground that the vehicle was not insured and the driver has no valid licence. During evidence, a copy of the insurance policy was marked as Exh. R-1 by consent of the parties. The appellant (herein) also consented to that copy being so marked. The Tribunal, therefore, held that the vehicle was insured and passed an award against the insurance company. The insurance company filed an appeal, inter alia, on the ground that as per the terms of the policy, the liability is limited to Rs. 50,000. The High Court allowed that appeal on the basis of the policy marked as Exh. R-1. The Special Leave Petition, filed against the order of the High Court, was dismissed by this court. 3. Thereafter, appellant filed a review before the High Court. They produced some other policy which did not contain the clause restricting liability. The High Court has correctly dismissed the review petition. The High Court has correctly held that there was no fraud because the policy which was before the court at all stages was the one which had been marked as Exh. R-1. The High Court has also held that the liability was limited on the basis of the premium which had been paid. Hence this appeal. 4. We see absolutely no substance in this appeal. If a party has in its custody or possession a document which is relevant, it is the duty of that party to produce the document at the very first stage. Appellant could not deny that the policy was always with him. There was nothing which prevented him from producing it before the Tribunal. Had he produced a policy which was different from the one produced by the insurance company, the Tribunal could have ascertained on evidence which was the correct policy. The appellant consented to the copy being produced by the insurance company being marked as an exhibit. Further there is absolutely no explanation, why, when the insurance company sought to limit its liability in appeal, this policy was not produced. Producing this policy for the first time in the review petition cannot be ground to review the earlier order. In our view, the High Court rightly refused to look into this policy. | 1[ds]4. We see absolutely no substance in this appeal. If a party has in its custody or possession a document which is relevant, it is the duty of that party to produce the document at the very first stage. Appellant could not deny that the policy was always with him. There was nothing which prevented him from producing it before the Tribunal. Had he produced a policy which was different from the one produced by the insurance company, the Tribunal could have ascertained on evidence which was the correct policy. The appellant consented to the copy being produced by the insurance company being marked as an exhibit. Further there is absolutely no explanation, why, when the insurance company sought to limit its liability in appeal, this policy was not produced. Producing this policy for the first time in the review petition cannot be ground to review the earlier order. In our view, the High Court rightly refused to look into this policy. | 1 | 484 | 183 | ### Instruction:
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S.N. Variava and H.K. Sema, JJ. 1. This appeal is against an order passed by the High Court of Karnataka dismissing the review petition. 2. Briefly stated the facts are: On 6.11.1986 an accident took place. The claimants filed a claim before the Motor Accidents Claims Tribunal. The insurance company disputed the claim, inter alia, on the ground that the vehicle was not insured and the driver has no valid licence. During evidence, a copy of the insurance policy was marked as Exh. R-1 by consent of the parties. The appellant (herein) also consented to that copy being so marked. The Tribunal, therefore, held that the vehicle was insured and passed an award against the insurance company. The insurance company filed an appeal, inter alia, on the ground that as per the terms of the policy, the liability is limited to Rs. 50,000. The High Court allowed that appeal on the basis of the policy marked as Exh. R-1. The Special Leave Petition, filed against the order of the High Court, was dismissed by this court. 3. Thereafter, appellant filed a review before the High Court. They produced some other policy which did not contain the clause restricting liability. The High Court has correctly dismissed the review petition. The High Court has correctly held that there was no fraud because the policy which was before the court at all stages was the one which had been marked as Exh. R-1. The High Court has also held that the liability was limited on the basis of the premium which had been paid. Hence this appeal. 4. We see absolutely no substance in this appeal. If a party has in its custody or possession a document which is relevant, it is the duty of that party to produce the document at the very first stage. Appellant could not deny that the policy was always with him. There was nothing which prevented him from producing it before the Tribunal. Had he produced a policy which was different from the one produced by the insurance company, the Tribunal could have ascertained on evidence which was the correct policy. The appellant consented to the copy being produced by the insurance company being marked as an exhibit. Further there is absolutely no explanation, why, when the insurance company sought to limit its liability in appeal, this policy was not produced. Producing this policy for the first time in the review petition cannot be ground to review the earlier order. In our view, the High Court rightly refused to look into this policy.
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1
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4. We see absolutely no substance in this appeal. If a party has in its custody or possession a document which is relevant, it is the duty of that party to produce the document at the very first stage. Appellant could not deny that the policy was always with him. There was nothing which prevented him from producing it before the Tribunal. Had he produced a policy which was different from the one produced by the insurance company, the Tribunal could have ascertained on evidence which was the correct policy. The appellant consented to the copy being produced by the insurance company being marked as an exhibit. Further there is absolutely no explanation, why, when the insurance company sought to limit its liability in appeal, this policy was not produced. Producing this policy for the first time in the review petition cannot be ground to review the earlier order. In our view, the High Court rightly refused to look into this policy.
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Smita Conductors Ltd Vs. Euro Alloys Ltd | enquiry so as to cover the policy of other countries, that is, the country whose law governs the contract or the country of the place of the arbitration. In the absence of a definition of the expression `public policy, it is construed to mean the doctrine of public policy as applied by the Courts in which the foreign awarded is sought to be enforced and this Court referred to a large catena of cases in this regard. Therefore, we will proceed on the basis that the expression `public policy means public policy of India and the recognition and enforcement of foreign award cannot be questioned on the ground that it is contrary to the foreign country public policy and this expression has been used in a narrow sense must necessarily be construed as applied in private international law which means that a foreign award cannot be recognised or enforced if it is contrary to (1) fundamental policy of Indian law; or (2) the interest of India; or (3) justice or morality. Shri Venugopal strongly attached the correctness of the conclusions reached by the arbitrators on the effect of force majeure clause. In the awarded it is stated : "...Under the force majeure clause the respondents did not have the right to cancel April 1991 and May 1991 quota under contracts S142 and S336 and neither by the same reasoning did not seller have the right to clause but the June through November 1991 quotes against contract number S142 and the June quota against contract No. S336. It may be seen as a commercial oversight, nevertheless the force majeure clause as it is constructed in both contracts, would require both parties to maintain the contracts in being for an indefinite period of time until the force majeure clause had ended, failing alternative arrangements between the parties for delivery and payment." 13. Further, the arbitrators had held that having considered the March 1991 Reserve Bank of India circular imposing restrictions on the imports of certain categories of goods due to difficult balance of payments position prevailing at the relevant time and letter of credit of Rs. 25 lakhs and above should be referred by the local bank branch to the head office for prior appeal and in excess of Rs. 50 lakhs and above should be referred by the banks to the Controller, Exchange Control Department, Central Office, Reserve Bank of India, for clearance, and there is no time limit so far as these restrictions are concerned. The arbitrators noticed that the restrictions set by the Reserve Bank of India had created a situation in which the appellants had difficulty in arranging the opening of letters of credit so as to conform with the terms of the contract although it could be noted that they many applications were submitted by the appellant to the Bank of Baroda after the contractual deadline; that several shipments were made against the letter of credit opened after the contractual deadline; that this it has been established by the documentary evidence to both contractors Nos. S142 and S3367 that declaration of force majeure clause was present though belatedly. The arbitrators ultimately concluded that the Reserve Bank of India directives interfered with the contracts Nos. S142 and S36 which would have the effect of delaying the opening of the letters of credit by the buyer under the specified contracts. The arbitrators were of the opinion that the force majeure clause had no limitation on the period of suspension of the contract while the execution was affected by a valid force majeure; that it had been accepted by both the parties and that the restriction and requirements imposed by the Reserve Bank of India directives must be construed as having caused interference in and/or hindrance to the execution of the contract time rise; that though time had been considered to be of the essence condition, the inclusion of the force majeure clause which provided no time limit to the suspension of the contract caused by conditions envisaged herein though unusual it was accepted that the earlier contracts would be negotiated and executed successfully by the parties to the dispute. 14. The view taken by the arbitrators on the effect of the force majeure clause in the light of the Reserve Bank of India directives is a plausible view and cannot be ruled out as impossible of acceptance, and, therefore, question of substituting our view for that of the arbitrators would not arise. Question of public policy would have arisen if there are complete restriction on the implementation of the terms of the contract. There was no such restriction imposed. But, on the other hand, certain restrictions were imposed which could have been worked out by resorting to appropriate measures in terms of the contract as held by the arbitrators. In that view of the matter, we do not think any question of public policy as such arises for consideration in a situation of this sort. The argument is almost a red-herring and does not constitute a valid reason for interference with the award. Therefore, we reject the contentions raised on behalf of the appellant. 15. It is lastly contended that the interest awarded by the arbitrators needs interference and gave a break-up of the details. Interest has been awarded from period prior to reference in 1991 and after reference till termination of the proceedings before the arbitrators, pendente lite and after decree. This Court in Renusagars case (supra), held that award of such interest after the Interest Act, 1978 is permissible, however, on the facts of the case the High Court not having given a direction to the payment of interest pendente lite did not modify that part of the order. 16. We do not find that it is appropriate to modify the award made by the arbitrators or decree passed pursuant to it as no exceptional circumstances arise. The fact that there is fluctuation in the exchange rate is no reason for us to interfere with the same. | 0[ds]10. In the light of this decision, we are firmly of the view that the appellant cannot be any longer challenge the existence of an arbitration agreement between the partiesandsuch an agreement was not covered by the New York ConventionThe arbitrators were of the opinion that the force majeure clause had no limitation on the period of suspension of the contract while the execution was affected by a valid force majeure; that it had been accepted by both the partiesandthat the restrictionandrequirements imposed by the Reserve Bank of India directives must be construed as having caused interference inr hindrance to the execution of the contract time rise; that though time had been considered to be of the essence condition, the inclusion of the force majeure clause which provided no time limit to the suspension of the contract caused by conditions envisaged herein though unusual it was accepted that the earlier contracts would be negotiatedandexecuted successfully by the parties to the dispute14. The view taken by the arbitrators on the effect of the force majeure clause in the light of the Reserve Bank of India directives is a plausible viewandcannot be ruled out as impossible of acceptance,, therefore, question of substituting our view for that of the arbitrators would not arise. Question of public policy would have arisen if there are complete restriction on the implementation of the terms of the contract. There was no such restriction imposed. But, on the other, certain restrictions were imposed which could have been worked out by resorting to appropriate measures in terms of the contract as held by the arbitrators. In that view of the matter, we do not think any question of public policy as such arises for consideration in a situation of this sort. The argument is almost adoes not constitute a valid reason for interference with the award. Therefore, we reject the contentions raised on behalf of the appellant15. It is lastly contended that the interest awarded by the arbitrators needs interferenceandgave ap of the details. Interest has been awarded from period prior to reference in 1991andafter reference till termination of the proceedings before the arbitrators, pendente liteandafter decree. This Court in Renusagars case (supra), held that award of such interest after the Interest Act, 1978 is permissible, however, on the facts of the case the High Court not having given a direction to the payment of interest pendente lite did not modify that part of the order16. We do not find that it is appropriate to modify the award made by the arbitrators or decree passed pursuant to it as no exceptional circumstances arise. The fact that there is fluctuation in the exchange rate is no reason for us to interfere with the same. | 0 | 5,845 | 491 | ### 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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enquiry so as to cover the policy of other countries, that is, the country whose law governs the contract or the country of the place of the arbitration. In the absence of a definition of the expression `public policy, it is construed to mean the doctrine of public policy as applied by the Courts in which the foreign awarded is sought to be enforced and this Court referred to a large catena of cases in this regard. Therefore, we will proceed on the basis that the expression `public policy means public policy of India and the recognition and enforcement of foreign award cannot be questioned on the ground that it is contrary to the foreign country public policy and this expression has been used in a narrow sense must necessarily be construed as applied in private international law which means that a foreign award cannot be recognised or enforced if it is contrary to (1) fundamental policy of Indian law; or (2) the interest of India; or (3) justice or morality. Shri Venugopal strongly attached the correctness of the conclusions reached by the arbitrators on the effect of force majeure clause. In the awarded it is stated : "...Under the force majeure clause the respondents did not have the right to cancel April 1991 and May 1991 quota under contracts S142 and S336 and neither by the same reasoning did not seller have the right to clause but the June through November 1991 quotes against contract number S142 and the June quota against contract No. S336. It may be seen as a commercial oversight, nevertheless the force majeure clause as it is constructed in both contracts, would require both parties to maintain the contracts in being for an indefinite period of time until the force majeure clause had ended, failing alternative arrangements between the parties for delivery and payment." 13. Further, the arbitrators had held that having considered the March 1991 Reserve Bank of India circular imposing restrictions on the imports of certain categories of goods due to difficult balance of payments position prevailing at the relevant time and letter of credit of Rs. 25 lakhs and above should be referred by the local bank branch to the head office for prior appeal and in excess of Rs. 50 lakhs and above should be referred by the banks to the Controller, Exchange Control Department, Central Office, Reserve Bank of India, for clearance, and there is no time limit so far as these restrictions are concerned. The arbitrators noticed that the restrictions set by the Reserve Bank of India had created a situation in which the appellants had difficulty in arranging the opening of letters of credit so as to conform with the terms of the contract although it could be noted that they many applications were submitted by the appellant to the Bank of Baroda after the contractual deadline; that several shipments were made against the letter of credit opened after the contractual deadline; that this it has been established by the documentary evidence to both contractors Nos. S142 and S3367 that declaration of force majeure clause was present though belatedly. The arbitrators ultimately concluded that the Reserve Bank of India directives interfered with the contracts Nos. S142 and S36 which would have the effect of delaying the opening of the letters of credit by the buyer under the specified contracts. The arbitrators were of the opinion that the force majeure clause had no limitation on the period of suspension of the contract while the execution was affected by a valid force majeure; that it had been accepted by both the parties and that the restriction and requirements imposed by the Reserve Bank of India directives must be construed as having caused interference in and/or hindrance to the execution of the contract time rise; that though time had been considered to be of the essence condition, the inclusion of the force majeure clause which provided no time limit to the suspension of the contract caused by conditions envisaged herein though unusual it was accepted that the earlier contracts would be negotiated and executed successfully by the parties to the dispute. 14. The view taken by the arbitrators on the effect of the force majeure clause in the light of the Reserve Bank of India directives is a plausible view and cannot be ruled out as impossible of acceptance, and, therefore, question of substituting our view for that of the arbitrators would not arise. Question of public policy would have arisen if there are complete restriction on the implementation of the terms of the contract. There was no such restriction imposed. But, on the other hand, certain restrictions were imposed which could have been worked out by resorting to appropriate measures in terms of the contract as held by the arbitrators. In that view of the matter, we do not think any question of public policy as such arises for consideration in a situation of this sort. The argument is almost a red-herring and does not constitute a valid reason for interference with the award. Therefore, we reject the contentions raised on behalf of the appellant. 15. It is lastly contended that the interest awarded by the arbitrators needs interference and gave a break-up of the details. Interest has been awarded from period prior to reference in 1991 and after reference till termination of the proceedings before the arbitrators, pendente lite and after decree. This Court in Renusagars case (supra), held that award of such interest after the Interest Act, 1978 is permissible, however, on the facts of the case the High Court not having given a direction to the payment of interest pendente lite did not modify that part of the order. 16. We do not find that it is appropriate to modify the award made by the arbitrators or decree passed pursuant to it as no exceptional circumstances arise. The fact that there is fluctuation in the exchange rate is no reason for us to interfere with the same.
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0
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10. In the light of this decision, we are firmly of the view that the appellant cannot be any longer challenge the existence of an arbitration agreement between the partiesandsuch an agreement was not covered by the New York ConventionThe arbitrators were of the opinion that the force majeure clause had no limitation on the period of suspension of the contract while the execution was affected by a valid force majeure; that it had been accepted by both the partiesandthat the restrictionandrequirements imposed by the Reserve Bank of India directives must be construed as having caused interference inr hindrance to the execution of the contract time rise; that though time had been considered to be of the essence condition, the inclusion of the force majeure clause which provided no time limit to the suspension of the contract caused by conditions envisaged herein though unusual it was accepted that the earlier contracts would be negotiatedandexecuted successfully by the parties to the dispute14. The view taken by the arbitrators on the effect of the force majeure clause in the light of the Reserve Bank of India directives is a plausible viewandcannot be ruled out as impossible of acceptance,, therefore, question of substituting our view for that of the arbitrators would not arise. Question of public policy would have arisen if there are complete restriction on the implementation of the terms of the contract. There was no such restriction imposed. But, on the other, certain restrictions were imposed which could have been worked out by resorting to appropriate measures in terms of the contract as held by the arbitrators. In that view of the matter, we do not think any question of public policy as such arises for consideration in a situation of this sort. The argument is almost adoes not constitute a valid reason for interference with the award. Therefore, we reject the contentions raised on behalf of the appellant15. It is lastly contended that the interest awarded by the arbitrators needs interferenceandgave ap of the details. Interest has been awarded from period prior to reference in 1991andafter reference till termination of the proceedings before the arbitrators, pendente liteandafter decree. This Court in Renusagars case (supra), held that award of such interest after the Interest Act, 1978 is permissible, however, on the facts of the case the High Court not having given a direction to the payment of interest pendente lite did not modify that part of the order16. We do not find that it is appropriate to modify the award made by the arbitrators or decree passed pursuant to it as no exceptional circumstances arise. The fact that there is fluctuation in the exchange rate is no reason for us to interfere with the same.
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Aditya Kumar Singh Vs. Principal, Rajendra Medical College, Ranchi & Others | the certificate as directed by the High Court in the previous decision and the Counsel added that if that had been done the appellant would not have found it necessary to have found it necessary to have resort to the present writ proceedings. 6. This submission ignores the fact that the Principal had actually complied with the order of the High Court in the earlier case. He, however, also in addition disclosed all the other relevant facts which he was, in our view, entitled to do. Besides, the question directly raised in the previous case was confined to the grievance relating to violation of the principle of natural justice as the appellant had not been given adequate opportunity of placing his case before the authorities. He was accordingly held entitled to an opportunity to show cause against the action sought to be taken against him so as to satisfy the requirements of the rule of natural justice. The appellant, as the facts noted earlier in this judgment show, was given notice to show that he had actually passed in physics as claimed by him. The previous decision is thus of no assistance to the appellant in the present case. 7. The point of res judicata was also urged in the High Court and indeed it was in the forefront of the arguments addressed in that Court on behalf of the appellant. After noting the fact that in spite of the instructions from the Principal to the Health Department of the Bihar State Government to forward the Principals version of the Advocate-Generals Office neither counter-affidavit was filed nor were any arguments addressed in the High Court on his behalf in the earlier case. The High Court in the present case observed that the decision in the earlier writ petition would nevertheless be binding on the Principal but it could not bind the Ranchi University. The law laid down in the earlier case was, however, held to constitute a binding precedent for the Court to follow in the present case. The previous decision was held to be confined only to the question of removal of the appellants name from the roll of the Collage in violation of the principles of natural justice inasmuch as proper opportunity was not afforded to him to meet the charge that he was responsible for submitting the inflated marks-sheet. After adverting to the facts to the facts of the case the High Court observed; "We do not want to make any observation in this case in regard to the case of the respondents at some of the stages that really the figure I before the figure 5 in figure 15 was an interpolation in different ink. Because that matter was not finally investigated as the previous judgment shows, by following the principles of natural justice. But this much is clear now that the petitioner had not passed B.Sc., Part I Examination in Physics as he had got only twenty eight marks in Physics (five in Practical and twenty-three in theoretical) and had submitted a marks-sheet along with his admission application form which, to say the least, was not correct. Whoever may have been responsible for showing the inflated mark but surely the user of this marks-sheet was the petitioner and to his advantage."When confronted with this position the learned Counsel, after making a faint but unsuccessful attempt to persuade us to go into the facts and come to our own conclusions, confined his submission to a very narrow point. He submitted that since the appellant has attended the College regularly and has also been permitted, though provisionally, to sit at the University Examination he should be given an opportunity of showing to the University authorities that he had in fact passed in Physics at the 4 B.Sc., part I Examination from Bhagalpur University. According to his submission the High Court should not have given a final decision on this point when the question of interpolation of figure 1 in the marks-sheet has been left open. 8. The High Court has undoubtedly observed in the impugned order that the appellant had neither in the earlier writ petition nor in the present writ petition nor in any of his affidavit in reply stated that he had as a matter of fact passed in Physics at B.Sc., Part I Examination from Bhagalpur University. On the other hand the appellant throughout insisted on basing his claim on the marks-sheet which he had attached with the admission form and which had been held not to be genuine. The High Court, while dealing with the question of equitable estoppel, again observed : "It will bear repetition to say that the petitioner who had not undisputedly now passed B.Sc., Part I Examination with Physics but by making use of wrong mark sheet had led the Principal to admit him, is not entitled to invoke the principal of estoppel against the University." The learned Counsel for the appellant was not able to point out any material on the record from which it could be shown that that High Court is wrong in making these observations and that the appellant had at any stage asserted that as a matter of fact he had passed in Physics as contended. We are, therefore, unable to find any error in the impugned order. 9. In the High Court it was not the appellants case that he should be allowed an opportunity to show that he had actually passed in Physics as is now prayed by his Counsel. Indeed, all along he was being asked to furnish proof of his having so passed in Physics. Since no such plea was raised in the High Court we are unable to make any order in the terms suggested by Shri Desai. In case, however, he is in a position to furnish proof of this fact he may approach the authorities concerned. It was the appellant himself who had without furnishing any such proof rushed to the Court with a misconceived prayer. 10. | 0[ds]This submission is unacceptable.To begin with in the earlier petition only the Principal of the Rajendra Medical College and the State of Bihar were impleaded as parties. It is unfortunate that in those proceedings the respondents did not file anyt and the Principal of the College was not even represented by a counsel with the result that no arguments were addressed on his behalf. The fact, however, remains that nothing said in that decision can bind the University and now it is the University which is primarily objecting to the appellants eligibility to take the First M.B.B.S., Examination on the ground that he has not complied with Regulation 5 of Chapter XVIII of the University Regulations. It was contended by Shri Desai that the Principal should have given the certificate as directed by the High Court in the previous decision and the Counsel added that if that had been done the appellant would not have found it necessary to have found it necessary to have resort to the present writ proceedings6. This submission ignores the fact that the Principal had actually complied with the order of the High Court in the earlier case. He, however, also in addition disclosed all the other relevant facts which he was, in our view, entitled to do. Besides, the question directly raised in the previous case was confined to the grievance relating to violation of the principle of natural justice as the appellant had not been given adequate opportunity of placing his case before the authorities. He was accordingly held entitled to an opportunity to show cause against the action sought to be taken against him so as to satisfy the requirements of the rule of natural justice. The appellant, as the facts noted earlier in this judgment show, was given notice to show that he had actually passed in physics as claimed by him. The previous decision is thus of no assistance to the appellant in the present case8. The High Court has undoubtedly observed in the impugned order that the appellant had neither in the earlier writ petition nor in the present writ petition nor in any of his affidavit in reply stated that he had as a matter of fact passed in Physics at B.Sc., Part I Examination from Bhagalpur University. On the other hand the appellant throughout insisted on basing his claim on thet which he had attached with the admission form and which had been held not to be genuineThe learned Counsel for the appellant was not able to point out any material on the record from which it could be shown that that High Court is wrong in making these observations and that the appellant had at any stage asserted that as a matter of fact he had passed in Physics as contended. We are, therefore, unable to find any error in the impugned order9. In the High Court it was not the appellants case that he should be allowed an opportunity to show that he had actually passed in Physics as is now prayed by his Counsel. Indeed, all along he was being asked to furnish proof of his having so passed in Physics. Since no such plea was raised in the High Court we are unable to make any order in the terms suggested by Shri Desai. In case, however, he is in a position to furnish proof of this fact he may approach the authorities concerned. It was the appellant himself who had without furnishing any such proof rushed to the Court with a misconceived prayer | 0 | 4,363 | 628 | ### 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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the certificate as directed by the High Court in the previous decision and the Counsel added that if that had been done the appellant would not have found it necessary to have found it necessary to have resort to the present writ proceedings. 6. This submission ignores the fact that the Principal had actually complied with the order of the High Court in the earlier case. He, however, also in addition disclosed all the other relevant facts which he was, in our view, entitled to do. Besides, the question directly raised in the previous case was confined to the grievance relating to violation of the principle of natural justice as the appellant had not been given adequate opportunity of placing his case before the authorities. He was accordingly held entitled to an opportunity to show cause against the action sought to be taken against him so as to satisfy the requirements of the rule of natural justice. The appellant, as the facts noted earlier in this judgment show, was given notice to show that he had actually passed in physics as claimed by him. The previous decision is thus of no assistance to the appellant in the present case. 7. The point of res judicata was also urged in the High Court and indeed it was in the forefront of the arguments addressed in that Court on behalf of the appellant. After noting the fact that in spite of the instructions from the Principal to the Health Department of the Bihar State Government to forward the Principals version of the Advocate-Generals Office neither counter-affidavit was filed nor were any arguments addressed in the High Court on his behalf in the earlier case. The High Court in the present case observed that the decision in the earlier writ petition would nevertheless be binding on the Principal but it could not bind the Ranchi University. The law laid down in the earlier case was, however, held to constitute a binding precedent for the Court to follow in the present case. The previous decision was held to be confined only to the question of removal of the appellants name from the roll of the Collage in violation of the principles of natural justice inasmuch as proper opportunity was not afforded to him to meet the charge that he was responsible for submitting the inflated marks-sheet. After adverting to the facts to the facts of the case the High Court observed; "We do not want to make any observation in this case in regard to the case of the respondents at some of the stages that really the figure I before the figure 5 in figure 15 was an interpolation in different ink. Because that matter was not finally investigated as the previous judgment shows, by following the principles of natural justice. But this much is clear now that the petitioner had not passed B.Sc., Part I Examination in Physics as he had got only twenty eight marks in Physics (five in Practical and twenty-three in theoretical) and had submitted a marks-sheet along with his admission application form which, to say the least, was not correct. Whoever may have been responsible for showing the inflated mark but surely the user of this marks-sheet was the petitioner and to his advantage."When confronted with this position the learned Counsel, after making a faint but unsuccessful attempt to persuade us to go into the facts and come to our own conclusions, confined his submission to a very narrow point. He submitted that since the appellant has attended the College regularly and has also been permitted, though provisionally, to sit at the University Examination he should be given an opportunity of showing to the University authorities that he had in fact passed in Physics at the 4 B.Sc., part I Examination from Bhagalpur University. According to his submission the High Court should not have given a final decision on this point when the question of interpolation of figure 1 in the marks-sheet has been left open. 8. The High Court has undoubtedly observed in the impugned order that the appellant had neither in the earlier writ petition nor in the present writ petition nor in any of his affidavit in reply stated that he had as a matter of fact passed in Physics at B.Sc., Part I Examination from Bhagalpur University. On the other hand the appellant throughout insisted on basing his claim on the marks-sheet which he had attached with the admission form and which had been held not to be genuine. The High Court, while dealing with the question of equitable estoppel, again observed : "It will bear repetition to say that the petitioner who had not undisputedly now passed B.Sc., Part I Examination with Physics but by making use of wrong mark sheet had led the Principal to admit him, is not entitled to invoke the principal of estoppel against the University." The learned Counsel for the appellant was not able to point out any material on the record from which it could be shown that that High Court is wrong in making these observations and that the appellant had at any stage asserted that as a matter of fact he had passed in Physics as contended. We are, therefore, unable to find any error in the impugned order. 9. In the High Court it was not the appellants case that he should be allowed an opportunity to show that he had actually passed in Physics as is now prayed by his Counsel. Indeed, all along he was being asked to furnish proof of his having so passed in Physics. Since no such plea was raised in the High Court we are unable to make any order in the terms suggested by Shri Desai. In case, however, he is in a position to furnish proof of this fact he may approach the authorities concerned. It was the appellant himself who had without furnishing any such proof rushed to the Court with a misconceived prayer. 10.
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0
### Explanation:
This submission is unacceptable.To begin with in the earlier petition only the Principal of the Rajendra Medical College and the State of Bihar were impleaded as parties. It is unfortunate that in those proceedings the respondents did not file anyt and the Principal of the College was not even represented by a counsel with the result that no arguments were addressed on his behalf. The fact, however, remains that nothing said in that decision can bind the University and now it is the University which is primarily objecting to the appellants eligibility to take the First M.B.B.S., Examination on the ground that he has not complied with Regulation 5 of Chapter XVIII of the University Regulations. It was contended by Shri Desai that the Principal should have given the certificate as directed by the High Court in the previous decision and the Counsel added that if that had been done the appellant would not have found it necessary to have found it necessary to have resort to the present writ proceedings6. This submission ignores the fact that the Principal had actually complied with the order of the High Court in the earlier case. He, however, also in addition disclosed all the other relevant facts which he was, in our view, entitled to do. Besides, the question directly raised in the previous case was confined to the grievance relating to violation of the principle of natural justice as the appellant had not been given adequate opportunity of placing his case before the authorities. He was accordingly held entitled to an opportunity to show cause against the action sought to be taken against him so as to satisfy the requirements of the rule of natural justice. The appellant, as the facts noted earlier in this judgment show, was given notice to show that he had actually passed in physics as claimed by him. The previous decision is thus of no assistance to the appellant in the present case8. The High Court has undoubtedly observed in the impugned order that the appellant had neither in the earlier writ petition nor in the present writ petition nor in any of his affidavit in reply stated that he had as a matter of fact passed in Physics at B.Sc., Part I Examination from Bhagalpur University. On the other hand the appellant throughout insisted on basing his claim on thet which he had attached with the admission form and which had been held not to be genuineThe learned Counsel for the appellant was not able to point out any material on the record from which it could be shown that that High Court is wrong in making these observations and that the appellant had at any stage asserted that as a matter of fact he had passed in Physics as contended. We are, therefore, unable to find any error in the impugned order9. In the High Court it was not the appellants case that he should be allowed an opportunity to show that he had actually passed in Physics as is now prayed by his Counsel. Indeed, all along he was being asked to furnish proof of his having so passed in Physics. Since no such plea was raised in the High Court we are unable to make any order in the terms suggested by Shri Desai. In case, however, he is in a position to furnish proof of this fact he may approach the authorities concerned. It was the appellant himself who had without furnishing any such proof rushed to the Court with a misconceived prayer
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M.V. Kuriakose Vs. The State Of Kerala And Others | of the Industria l Disputes Act (14 of 1947) on 6th April 1971. The subject matter of the dispute was widely stated so as to embrace "all questions relating to" wage structure, the ratio between the higher and lower grades, the nature of duties and responsibilities attached to each category, and methods to be adopted for increasing productivity so as to contribute to the maximum efficiency and economic advantages from the working of the Corp oration. Among the matters decided in the Award given was that category wise seniority, together with Trade Test, should determine the promotions to higher grades. The Award dated 31st December 1972 was duly notified. It is true that conditions of service were not specifically mentioned among subjects referred to arbitration. But, promotions based on passing appropriate tests would certainly affect productivity. Moreover nobody took steps to assail the Award on any ground whatsoever3. The petitioner alleges that the Corporation and the Workmen subsequently agreed to promotions in the mechanical wing on the basis of seniority alone a s had been done in the past under the settlement. To prove such an agreement, the following passage was relied u on from "the minutes of discussion" held in the presence of the Minister (Trans- port and Electri city) on 20th November, 1973, with the representatives of the Unions of the Mechanical Wing:"It has, therefore, been decided that all existing vacancies upto Assistant Chargemen in the Mechanical Wing will be filled up as was being done in the past. The Minister, however, pointed out that comprehensive schemes of test, with due importance on the practical Side, will be introduced for all categories of employees soon. The Minister promised that the stages at which tests are to be introduced for the various categories of staff will be discussed with the Unions conveniently."4. This document, signed by the General Manager of the Corporation, contains only minutes of a discussion between the Minister for Trans- port and Electricity and the representatives of the Unions. It is difficult to see how it could modify the terms of the Awa rd duly made which had become binding and enforceable under s. 17A of the Industrial Disputes Act. The Minutes relied upon as proof of an agreement did not even constitute an agreement or settlement which has to be signed by parties to the dispute under s. 19(1) of the Industrial Disputes Act.The petitioner relies upon his promotion to the post of "Leading Hand" by the Corporation on 30th November, 1973, under the abovementioned alleged agreement. But, on 4th December 1975 the High Court had set aside the promotion of the petitioner and all others similarly circumstance upon a writ petition filed by an Association of Technical Certificate Holders of the Corporation and one Krishna Kutty, a mechanic of the Corporation. It appears that, among the opposite parties was the Kerala State Transport Mechanical Workers Union represented by its General Secretary. Section 18 (3) of the Industrial Disputes Act makes it clear that an Award of a Labour Court or Tribunal is binding on all parties to the industrial dispute. It is true that the petitioner was not individually a party to the proceedings in the High Court which resulted in the quashing of the order of promotion of the petitioner together with others on the ground that the Award had been violated by such promotions. Nevertheless, the petitioner would be deemed to be duly represented by his Union on such a question. He did not take any steps to assail or to get the judgment and order of the High Court set aside. The grounds upon which the petitioner attacks the enforcement of what was treated as an Award against him, so that he was reverted, are: firstly, that the so called Award did not relate to matters covered by the previous settlement and subsequent agreement, but contained some observations which had been misinterpreted by the High Court; secondly, that the High Court had misunderstood the Award inasmuch as it did not contain any dir ection that a "Trade Test" should be imposed upon those who belonged to the petitioners category before their promotion; and, thirdly, that he was not a party to the proceedings in the High Court which resulted in the quashing of the document by which he was promoted so that the High Courts order is not binding upon him.We are not able to. agree with the interpretation put forward on behalf of the petitioner upon the Award. The High Courts order shows that not even a counter-affidavit was filed by an Opposite Party and no defence was offered by the Union which represented the petitioner. In any case, the rights of the petitioner under an agreement or an Award, if he had any such right, could not be identified with rights under Article 16(1) of the Constitution. The result of the quashing of the promotion order relating ton whole category of employees in the position of the petitioner was that all similarly situated shared the same fate. All of them had to pass the Trade Test to become entitled to promotion. In this respect they were treated alike. I t could not be shown what opportunity was denied to the petitioner which was given to anybody else in the same category or with the same qualifications as the petitioner had. It was immaterial that somebody else, in another category altogether, was not required to pass the trade test which was essential, on the view taken by the High Court, before those in the petitioners category could claim promotion. All those i n the petitioners category and with his qualifications had been placed on an equal footing. Hence, whatever else might have been contravened, it was certainly not a fundamental right under Article 16 (1 ) of the Constitution which could be held to have been violated. And, no attempt was even made to show how a right of the petitioner under Article 31 (1) of the Constitution was affected.5. | 0[ds], therefore, been decided that all existing vacancies upto Assistant Chargemen in the Mechanical Wing will be filled up as was being done in the past. The Minister, however, pointed out that comprehensive schemes of test, with due importance on the practical Side, will be introduced for all categories of employees soon. The Minister promised that the stages at which tests are to be introduced for the various categories of staff will be discussed with the Unions conveniently."This document, signed by the General Manager of the Corporation, contains only minutes of a discussion between the Minister for Trans- port and Electricity and the representatives of the Unions. It is difficult to see how it could modify the terms of the Awa rd duly made which had become binding and enforceable under s. 17A of the Industrial Disputes Act. The Minutes relied upon as proof of an agreement did not even constitute an agreement or settlement which has to be signed by parties to the dispute under s. 19(1) of the Industrial Disputes Act.The petitioner relies upon his promotion to the post of "Leading Hand" by the Corporation on 30th November, 1973, under the abovementioned alleged agreement. But, on 4th December 1975 the High Court had set aside the promotion of the petitioner and all others similarly circumstance upon a writ petition filed by an Association of Technical Certificate Holders of the Corporation and one Krishna Kutty, a mechanic of the Corporation. It appears that, among the opposite parties was the Kerala State Transport Mechanical Workers Union represented by its General Secretary. Section 18 (3) of the Industrial Disputes Act makes it clear that an Award of a Labour Court or Tribunal is binding on all parties to the industrial dispute. It is true that the petitioner was not individually a party to the proceedings in the High Court which resulted in the quashing of the order of promotion of the petitioner together with others on the ground that the Award had been violated by such promotions. Nevertheless, the petitioner would be deemed to be duly represented by his Union on such a question. He did not take any steps to assail or to get the judgment and order of the High Court set aside. The grounds upon which the petitioner attacks the enforcement of what was treated as an Award against him, so that he was reverted, are: firstly, that the so called Award did not relate to matters covered by the previous settlement and subsequent agreement, but contained some observations which had been misinterpreted by the High Court; secondly, that the High Court had misunderstood the Award inasmuch as it did not contain any dir ection that a "Trade Test" should be imposed upon those who belonged to the petitioners category before their promotion; and, thirdly, that he was not a party to the proceedings in the High Court which resulted in the quashing of the document by which he was promoted so that the High Courts order is not binding upon him.We are not able to. agree with the interpretation put forward on behalf of the petitioner upon the Award. The High Courts order shows that not even a counter-affidavit was filed by an Opposite Party and no defence was offered by the Union which represented the petitioner. In any case, the rights of the petitioner under an agreement or an Award, if he had any such right, could not be identified with rights under Article 16(1) of the Constitution. The result of the quashing of the promotion order relating ton whole category of employees in the position of the petitioner was that all similarly situated shared the same fate. All of them had to pass the Trade Test to become entitled to promotion. In this respect they were treated alike. I t could not be shown what opportunity was denied to the petitioner which was given to anybody else in the same category or with the same qualifications as the petitioner had. It was immaterial that somebody else, in another category altogether, was not required to pass the trade test which was essential, on the view taken by the High Court, before those in the petitioners category could claim promotion. All those i n the petitioners category and with his qualifications had been placed on an equal footing. Hence, whatever else might have been contravened, it was certainly not a fundamental right under Article 16 (1 ) of the Constitution which could be held to have been violated. And, no attempt was even made to show how a right of the petitioner under Article 31 (1) of the Constitution was affected. | 0 | 1,558 | 852 | ### 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 Industria l Disputes Act (14 of 1947) on 6th April 1971. The subject matter of the dispute was widely stated so as to embrace "all questions relating to" wage structure, the ratio between the higher and lower grades, the nature of duties and responsibilities attached to each category, and methods to be adopted for increasing productivity so as to contribute to the maximum efficiency and economic advantages from the working of the Corp oration. Among the matters decided in the Award given was that category wise seniority, together with Trade Test, should determine the promotions to higher grades. The Award dated 31st December 1972 was duly notified. It is true that conditions of service were not specifically mentioned among subjects referred to arbitration. But, promotions based on passing appropriate tests would certainly affect productivity. Moreover nobody took steps to assail the Award on any ground whatsoever3. The petitioner alleges that the Corporation and the Workmen subsequently agreed to promotions in the mechanical wing on the basis of seniority alone a s had been done in the past under the settlement. To prove such an agreement, the following passage was relied u on from "the minutes of discussion" held in the presence of the Minister (Trans- port and Electri city) on 20th November, 1973, with the representatives of the Unions of the Mechanical Wing:"It has, therefore, been decided that all existing vacancies upto Assistant Chargemen in the Mechanical Wing will be filled up as was being done in the past. The Minister, however, pointed out that comprehensive schemes of test, with due importance on the practical Side, will be introduced for all categories of employees soon. The Minister promised that the stages at which tests are to be introduced for the various categories of staff will be discussed with the Unions conveniently."4. This document, signed by the General Manager of the Corporation, contains only minutes of a discussion between the Minister for Trans- port and Electricity and the representatives of the Unions. It is difficult to see how it could modify the terms of the Awa rd duly made which had become binding and enforceable under s. 17A of the Industrial Disputes Act. The Minutes relied upon as proof of an agreement did not even constitute an agreement or settlement which has to be signed by parties to the dispute under s. 19(1) of the Industrial Disputes Act.The petitioner relies upon his promotion to the post of "Leading Hand" by the Corporation on 30th November, 1973, under the abovementioned alleged agreement. But, on 4th December 1975 the High Court had set aside the promotion of the petitioner and all others similarly circumstance upon a writ petition filed by an Association of Technical Certificate Holders of the Corporation and one Krishna Kutty, a mechanic of the Corporation. It appears that, among the opposite parties was the Kerala State Transport Mechanical Workers Union represented by its General Secretary. Section 18 (3) of the Industrial Disputes Act makes it clear that an Award of a Labour Court or Tribunal is binding on all parties to the industrial dispute. It is true that the petitioner was not individually a party to the proceedings in the High Court which resulted in the quashing of the order of promotion of the petitioner together with others on the ground that the Award had been violated by such promotions. Nevertheless, the petitioner would be deemed to be duly represented by his Union on such a question. He did not take any steps to assail or to get the judgment and order of the High Court set aside. The grounds upon which the petitioner attacks the enforcement of what was treated as an Award against him, so that he was reverted, are: firstly, that the so called Award did not relate to matters covered by the previous settlement and subsequent agreement, but contained some observations which had been misinterpreted by the High Court; secondly, that the High Court had misunderstood the Award inasmuch as it did not contain any dir ection that a "Trade Test" should be imposed upon those who belonged to the petitioners category before their promotion; and, thirdly, that he was not a party to the proceedings in the High Court which resulted in the quashing of the document by which he was promoted so that the High Courts order is not binding upon him.We are not able to. agree with the interpretation put forward on behalf of the petitioner upon the Award. The High Courts order shows that not even a counter-affidavit was filed by an Opposite Party and no defence was offered by the Union which represented the petitioner. In any case, the rights of the petitioner under an agreement or an Award, if he had any such right, could not be identified with rights under Article 16(1) of the Constitution. The result of the quashing of the promotion order relating ton whole category of employees in the position of the petitioner was that all similarly situated shared the same fate. All of them had to pass the Trade Test to become entitled to promotion. In this respect they were treated alike. I t could not be shown what opportunity was denied to the petitioner which was given to anybody else in the same category or with the same qualifications as the petitioner had. It was immaterial that somebody else, in another category altogether, was not required to pass the trade test which was essential, on the view taken by the High Court, before those in the petitioners category could claim promotion. All those i n the petitioners category and with his qualifications had been placed on an equal footing. Hence, whatever else might have been contravened, it was certainly not a fundamental right under Article 16 (1 ) of the Constitution which could be held to have been violated. And, no attempt was even made to show how a right of the petitioner under Article 31 (1) of the Constitution was affected.5.
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, therefore, been decided that all existing vacancies upto Assistant Chargemen in the Mechanical Wing will be filled up as was being done in the past. The Minister, however, pointed out that comprehensive schemes of test, with due importance on the practical Side, will be introduced for all categories of employees soon. The Minister promised that the stages at which tests are to be introduced for the various categories of staff will be discussed with the Unions conveniently."This document, signed by the General Manager of the Corporation, contains only minutes of a discussion between the Minister for Trans- port and Electricity and the representatives of the Unions. It is difficult to see how it could modify the terms of the Awa rd duly made which had become binding and enforceable under s. 17A of the Industrial Disputes Act. The Minutes relied upon as proof of an agreement did not even constitute an agreement or settlement which has to be signed by parties to the dispute under s. 19(1) of the Industrial Disputes Act.The petitioner relies upon his promotion to the post of "Leading Hand" by the Corporation on 30th November, 1973, under the abovementioned alleged agreement. But, on 4th December 1975 the High Court had set aside the promotion of the petitioner and all others similarly circumstance upon a writ petition filed by an Association of Technical Certificate Holders of the Corporation and one Krishna Kutty, a mechanic of the Corporation. It appears that, among the opposite parties was the Kerala State Transport Mechanical Workers Union represented by its General Secretary. Section 18 (3) of the Industrial Disputes Act makes it clear that an Award of a Labour Court or Tribunal is binding on all parties to the industrial dispute. It is true that the petitioner was not individually a party to the proceedings in the High Court which resulted in the quashing of the order of promotion of the petitioner together with others on the ground that the Award had been violated by such promotions. Nevertheless, the petitioner would be deemed to be duly represented by his Union on such a question. He did not take any steps to assail or to get the judgment and order of the High Court set aside. The grounds upon which the petitioner attacks the enforcement of what was treated as an Award against him, so that he was reverted, are: firstly, that the so called Award did not relate to matters covered by the previous settlement and subsequent agreement, but contained some observations which had been misinterpreted by the High Court; secondly, that the High Court had misunderstood the Award inasmuch as it did not contain any dir ection that a "Trade Test" should be imposed upon those who belonged to the petitioners category before their promotion; and, thirdly, that he was not a party to the proceedings in the High Court which resulted in the quashing of the document by which he was promoted so that the High Courts order is not binding upon him.We are not able to. agree with the interpretation put forward on behalf of the petitioner upon the Award. The High Courts order shows that not even a counter-affidavit was filed by an Opposite Party and no defence was offered by the Union which represented the petitioner. In any case, the rights of the petitioner under an agreement or an Award, if he had any such right, could not be identified with rights under Article 16(1) of the Constitution. The result of the quashing of the promotion order relating ton whole category of employees in the position of the petitioner was that all similarly situated shared the same fate. All of them had to pass the Trade Test to become entitled to promotion. In this respect they were treated alike. I t could not be shown what opportunity was denied to the petitioner which was given to anybody else in the same category or with the same qualifications as the petitioner had. It was immaterial that somebody else, in another category altogether, was not required to pass the trade test which was essential, on the view taken by the High Court, before those in the petitioners category could claim promotion. All those i n the petitioners category and with his qualifications had been placed on an equal footing. Hence, whatever else might have been contravened, it was certainly not a fundamental right under Article 16 (1 ) of the Constitution which could be held to have been violated. And, no attempt was even made to show how a right of the petitioner under Article 31 (1) of the Constitution was affected.
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Stridewell Leathers (P) Vs. Bhankerpur Simbhaoli Beverages (P) Ltd | making the order. We have no doubt that the forum of appeal indicated in Section 10-F is a definite forum determined by the provisions of the Act and not by the Regulations framed by the Company Law Board under Section 10-E(6) or the place of its sitting under the Regulations. These Regulations framed by the Company Law Board to regulate its own procedure are, therefore, of no assistance for decision of the controversy13. It may be mentioned that the original jurisdiction to try a petition for winding up of a company continues to remain in the High Court concerned even though the original jurisdiction in respect of a petition under Sections 397 and 398 is transferred to the Company Law Board. It is obvious that the appeal against an order made by the Company Judge of the High Court in a winding-up petition continues to lie before a Division Bench in the same High Court. If the construction suggested on behalf of the respondents be correct then that High Court would have no jurisdiction no entertain an appeal against the Company Law Boards order while appeal from the Company Judges order in a winding-up petition in respect of the same company would lie there. This appears to be incongruous. A possible anomaly of this kind would be prevented by taking the view which we have indicated 14. In Arjun Prasad v. Shantilal Shankarlal Shah the question was whether the appeal provided by Section 153(7) of the Indian Companies Act, 1913 lay to the High Court or to the Supreme Court. It was held that an appeal from the order of the Company Judge lay to the High Court under clause 10 of the Letters Patent and not to the Supreme Court. In Shankarlal Aggarwal v. Shankarlal Poddar it was held that an appeal under Section 202 of the Indian Companies Act, 1913 lay from the decision of the Company Judge to the High Court. In this background, the Parliament, while inserting Section 10-F in the Companies Act, 1956, appears to have merely emphasised that the appeal provided therein continues to lie to the High Court, as earlier, notwithstanding transfer of the original jurisdiction from the Company Judge of the High Court to the Company Law Board resulting in inapplicability of the Letters Patent 15. It is also noteworthy that the jurisdiction of the High Courts under Article 226, if it be exercisable in respect of an order made by the Company Law Board, would be determine by the place where the cause of action, or any part of it arises and the Delhi High Court alone would not be the High Court for that purpose. The High Court, within whose jurisdiction the registered office of the company concerned lies giving rise to at least a part of the cause of action, would be entitled to exercise the writ jurisdiction under Article 226 of the Constitution. It is a different matter that the existence of the efficacious remedy of statutory appeal under Section 10-F would justify refusal of interference under Article 226. The Parliament could not have been unaware of this situation. This being so, it is difficult to accept that even though the High Court having jurisdiction in relation to the place at which the registered office of the company concerned is situate may be entitled to entertain a writ petition against an order made by the Company Law Board, it would have no jurisdiction to entertain the statutory appeal under Section 10-F of the Companies Act in respect of the same company, except in the case of the Delhi High Court. No such distinction between the High Courts can be envisaged. It was precisely to remove such an anomaly in respect of the orders made by the Central Government or the other authorities situate in Delhi that the amendment was made in Article 226 as originally enacted in the Constitution. It is difficult to accept that, after that experience, a retrograde step was taken while enacting Section 10-F, as suggested by the respondents16. Both sides have placed reliance on Section 54 of the Foreign Exchange Regulation Act, 1973 (for short "FERA") which provides an appeal to the High Court from any decision or order of the Appellate Board constituted under the Act. An explanation has been added therein to give the meaning of the expression "High Court". The absence of a similar explanation in Section 10-F of the Companies Act is relied on by both sides to support the rival contentions. In our opinion, the absence of a similar explanation in Section 10-F does not support the respondents contention. In the absence of provisions like Sections 2(11) and 10(1)(a) of the Companies Act in the FERA, addition of explanation in Section 54 of the FERA appears to have been considered necessary to remove any possible ambiguity. The other provisions in the Companies Act, 1956 and the historical background did not require any such explanation in Section 10-F 17. We are also not impressed by the argument of Shri Shanti Bhushan based on clause 11 of the Letters Patent of the Lahore High Court. In the first place any general provision for appeal must give way to the special provision made in the Companies Act. The provision of appeal by insertion of Section 10-F is in substitution of the provision in the Letters Patent or similar enactment providing for appeal against orders of the Company Judge when the original jurisdiction was in the High Courts. If the construction made by us of Section 10-F and the other relevant provisions of the Companies Act is correct, the provision in the Letters Patent of the Lahore High Court would not be material for deciding which High Court has jurisdiction to entertain the appeal since the appeal would lie by virtue of the specific provision in Section 10-F of the Companies Act. In this context, any further discussion of the provision in the Letters Patent of any High Court cannot have any significance | 1[ds]10. There can be no doubt that in case the forum of appeal was indicated in Sectionby use of the expression "the Court" instead of "the High Court" then by virtue of the definition of the expression "the Court" in Section 2(11), the court concerned would have to be determined as provided in Section 10 but there may have been some ambiguity whether that expression means "the High Court" or "the District Court" mentioned in clause (a) or clause (b) of(1) of Section 10. This ambiguity is removed by use of the expression "the High Court" in Sectionwhich unmistakably points to clause (a) of(1) of Section 10 and this appears to be the reason for use of the expression "the High Court" instead of "the Court" in SectionThere is nothing in any of these provisions to exclude the application of Section 10(1)(a) for construing the meaning of the expression "the High Court" in Sectionsince the context does not require otherwise and such a construction prevents a hiatus. Care was taken to define the expression "the Court" in Section 2(11) of the Act providing clearly that the meaning is as provided in Section 10 unless the context otherwise requires; and Section 10 providing for the jurisdiction of courts then says that the court having jurisdiction under the Act would be the High Court or the District Court indicated therein. It is unlikely that with such care taken in the principal Act to define "the Court" and also specify the court having jurisdiction under the Act, any ambiguity would be left while amending the principal Act in this manner for any doubt about the forum of appeal if it was intended to be different from the existing appellate forum indicated by Section 10(1)(a). We have no doubt that express provision would have been made in the amendment to indicate a different or substituted appellate forum than the existing appellate forum if that was the intention of the amendment or jurisdiction of the court for the purpose of appeal had been altered in any manner. The absence of any indication in the amendment to suggest any change or substitution in the appellate forum is a pointer in the direction that the same continued unaltered and the expression "the High Court" instead of "the Court" was used for the reason indicated by providing that the High Court concerned continued to be the forum of appeal notwithstanding transfer of the original jurisdiction from the High Court concerned to the Company Law Board. It does appear to us that substitution of a new forum of appeal in place of the existing forum in the High Court concerned, as contended by the respondents cannot be inferred merely from the transfer of the original jurisdiction to the Company Law Board in the absence of clear provision to that effect11. Use of the word the before High Court is clearly intended to specify a particular High Court identified by Sectionitself and, therefore, it cannot be a High Court indicated by the subsequent act of the Company Law Board choosing the place of its sitting for making the order under appeal. It is also indicative of the clear intention of the legislature that the indication of the particular High Court has to be found in the existing provisions of the enactment and not by inference from any outside provision or any subsequent act of the Company Law Board or any other authority. It further lends assurance to the view that it excludes the possibility of any ambiguity in the expression and refers to a particular High Court envisaged by other provisions of the Act12. The provision in Sectionfor the Company Law Board to have more than one bench and the Company Law Board Regulations, 1991 framed under Sectionof the Act providing for sitting of the benches at different places in the country does not give any clue to the construction of the expression "the High Court" in SectionOn behalf of the respondents it was urged, that all appeals under Sectionwould lie to the Delhi High Court where the Principal Bench of the Company Law Board ordinarily sits but if the order under appeal is made at any other place in the country where the bench sits, then the High Court having jurisdiction over that place can entertain the appeal. In our opinion, this is too nebulous a concept for deciding the question of jurisdiction and determination of the forum of appeal and, if accepted would tend to empowered the Company Law Board to determine the forum of appeal by the choice of place of sitting under the Regulations for making the order. We have no doubt that the forum of appeal indicated in Sectionis a definite forum determined by the provisions of the Act and not by the Regulations framed by the Company Law Board under Sectionor the place of its sitting under the Regulations. These Regulations framed by the Company Law Board to regulate its own procedure are, therefore, of no assistance for decision of the controversy13. It may be mentioned that the original jurisdiction to try a petition for winding up of a company continues to remain in the High Court concerned even though the original jurisdiction in respect of a petition under Sections 397 and 398 is transferred to the Company Law Board. It is obvious that the appeal against an order made by the Company Judge of the High Court in apetition continues to lie before a Division Bench in the same High Court. If the construction suggested on behalf of the respondents be correct then that High Court would have no jurisdiction no entertain an appeal against the Company Law Boards order while appeal from the Company Judges order in apetition in respect of the same company would lie there. This appears to be incongruous. A possible anomaly of this kind would be prevented by taking the view which we haveIt is also noteworthy that the jurisdiction of the High Courts under Article 226, if it be exercisable in respect of an order made by the Company Law Board, would be determine by the place where the cause of action, or any part of it arises and the Delhi High Court alone would not be the High Court for that purpose. The High Court, within whose jurisdiction the registered office of the company concerned lies giving rise to at least a part of the cause of action, would be entitled to exercise the writ jurisdiction under Article 226 of the Constitution. It is a different matter that the existence of the efficacious remedy of statutory appeal under Sectionwould justify refusal of interference under Article 226. The Parliament could not have been unaware of this situation. This being so, it is difficult to accept that even though the High Court having jurisdiction in relation to the place at which the registered office of the company concerned is situate may be entitled to entertain a writ petition against an order made by the Company Law Board, it would have no jurisdiction to entertain the statutory appeal under Sectionof the Companies Act in respect of the same company, except in the case of the Delhi High Court. No such distinction between the High Courts can be envisaged. It was precisely to remove such an anomaly in respect of the orders made by the Central Government or the other authorities situate in Delhi that the amendment was made in Article 226 as originally enacted in the Constitution. It is difficult to accept that, after that experience, a retrograde step was taken while enacting Sectionas suggested by the respondents16. Both sides have placed reliance on Section 54 of the Foreign Exchange Regulation Act, 1973 (for short "FERA") which provides an appeal to the High Court from any decision or order of the Appellate Board constituted under the Act. An explanation has been added therein to give the meaning of the expression "High Court". The absence of a similar explanation in Sectionof the Companies Act is relied on by both sides to support the rival contentions. In our opinion, the absence of a similar explanation in Sectiondoes not support the respondents contention. In the absence of provisions like Sections 2(11) and 10(1)(a) of the Companies Act in the FERA, addition of explanation in Section 54 of the FERA appears to have been considered necessary to remove any possible ambiguity. The other provisions in the Companies Act, 1956 and the historical background did not require any such explanation in SectionWe are also not impressed by the argument of Shri Shanti Bhushan based on clause 11 of the Letters Patent of the Lahore High Court. In the first place any general provision for appeal must give way to the special provision made in the Companies Act. The provision of appeal by insertion of Sectionis in substitution of the provision in the Letters Patent or similar enactment providing for appeal against orders of the Company Judge when the original jurisdiction was in the High Courts. If the construction made by us of Sectionand the other relevant provisions of the Companies Act is correct, the provision in the Letters Patent of the Lahore High Court would not be material for deciding which High Court has jurisdiction to entertain the appeal since the appeal would lie by virtue of the specific provision in Sectionof the Companies Act. In this context, any further discussion of the provision in the Letters Patent of any High Court cannot have any significance | 1 | 4,636 | 1,727 | ### Instruction:
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making the order. We have no doubt that the forum of appeal indicated in Section 10-F is a definite forum determined by the provisions of the Act and not by the Regulations framed by the Company Law Board under Section 10-E(6) or the place of its sitting under the Regulations. These Regulations framed by the Company Law Board to regulate its own procedure are, therefore, of no assistance for decision of the controversy13. It may be mentioned that the original jurisdiction to try a petition for winding up of a company continues to remain in the High Court concerned even though the original jurisdiction in respect of a petition under Sections 397 and 398 is transferred to the Company Law Board. It is obvious that the appeal against an order made by the Company Judge of the High Court in a winding-up petition continues to lie before a Division Bench in the same High Court. If the construction suggested on behalf of the respondents be correct then that High Court would have no jurisdiction no entertain an appeal against the Company Law Boards order while appeal from the Company Judges order in a winding-up petition in respect of the same company would lie there. This appears to be incongruous. A possible anomaly of this kind would be prevented by taking the view which we have indicated 14. In Arjun Prasad v. Shantilal Shankarlal Shah the question was whether the appeal provided by Section 153(7) of the Indian Companies Act, 1913 lay to the High Court or to the Supreme Court. It was held that an appeal from the order of the Company Judge lay to the High Court under clause 10 of the Letters Patent and not to the Supreme Court. In Shankarlal Aggarwal v. Shankarlal Poddar it was held that an appeal under Section 202 of the Indian Companies Act, 1913 lay from the decision of the Company Judge to the High Court. In this background, the Parliament, while inserting Section 10-F in the Companies Act, 1956, appears to have merely emphasised that the appeal provided therein continues to lie to the High Court, as earlier, notwithstanding transfer of the original jurisdiction from the Company Judge of the High Court to the Company Law Board resulting in inapplicability of the Letters Patent 15. It is also noteworthy that the jurisdiction of the High Courts under Article 226, if it be exercisable in respect of an order made by the Company Law Board, would be determine by the place where the cause of action, or any part of it arises and the Delhi High Court alone would not be the High Court for that purpose. The High Court, within whose jurisdiction the registered office of the company concerned lies giving rise to at least a part of the cause of action, would be entitled to exercise the writ jurisdiction under Article 226 of the Constitution. It is a different matter that the existence of the efficacious remedy of statutory appeal under Section 10-F would justify refusal of interference under Article 226. The Parliament could not have been unaware of this situation. This being so, it is difficult to accept that even though the High Court having jurisdiction in relation to the place at which the registered office of the company concerned is situate may be entitled to entertain a writ petition against an order made by the Company Law Board, it would have no jurisdiction to entertain the statutory appeal under Section 10-F of the Companies Act in respect of the same company, except in the case of the Delhi High Court. No such distinction between the High Courts can be envisaged. It was precisely to remove such an anomaly in respect of the orders made by the Central Government or the other authorities situate in Delhi that the amendment was made in Article 226 as originally enacted in the Constitution. It is difficult to accept that, after that experience, a retrograde step was taken while enacting Section 10-F, as suggested by the respondents16. Both sides have placed reliance on Section 54 of the Foreign Exchange Regulation Act, 1973 (for short "FERA") which provides an appeal to the High Court from any decision or order of the Appellate Board constituted under the Act. An explanation has been added therein to give the meaning of the expression "High Court". The absence of a similar explanation in Section 10-F of the Companies Act is relied on by both sides to support the rival contentions. In our opinion, the absence of a similar explanation in Section 10-F does not support the respondents contention. In the absence of provisions like Sections 2(11) and 10(1)(a) of the Companies Act in the FERA, addition of explanation in Section 54 of the FERA appears to have been considered necessary to remove any possible ambiguity. The other provisions in the Companies Act, 1956 and the historical background did not require any such explanation in Section 10-F 17. We are also not impressed by the argument of Shri Shanti Bhushan based on clause 11 of the Letters Patent of the Lahore High Court. In the first place any general provision for appeal must give way to the special provision made in the Companies Act. The provision of appeal by insertion of Section 10-F is in substitution of the provision in the Letters Patent or similar enactment providing for appeal against orders of the Company Judge when the original jurisdiction was in the High Courts. If the construction made by us of Section 10-F and the other relevant provisions of the Companies Act is correct, the provision in the Letters Patent of the Lahore High Court would not be material for deciding which High Court has jurisdiction to entertain the appeal since the appeal would lie by virtue of the specific provision in Section 10-F of the Companies Act. In this context, any further discussion of the provision in the Letters Patent of any High Court cannot have any significance
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the possibility of any ambiguity in the expression and refers to a particular High Court envisaged by other provisions of the Act12. The provision in Sectionfor the Company Law Board to have more than one bench and the Company Law Board Regulations, 1991 framed under Sectionof the Act providing for sitting of the benches at different places in the country does not give any clue to the construction of the expression "the High Court" in SectionOn behalf of the respondents it was urged, that all appeals under Sectionwould lie to the Delhi High Court where the Principal Bench of the Company Law Board ordinarily sits but if the order under appeal is made at any other place in the country where the bench sits, then the High Court having jurisdiction over that place can entertain the appeal. In our opinion, this is too nebulous a concept for deciding the question of jurisdiction and determination of the forum of appeal and, if accepted would tend to empowered the Company Law Board to determine the forum of appeal by the choice of place of sitting under the Regulations for making the order. We have no doubt that the forum of appeal indicated in Sectionis a definite forum determined by the provisions of the Act and not by the Regulations framed by the Company Law Board under Sectionor the place of its sitting under the Regulations. These Regulations framed by the Company Law Board to regulate its own procedure are, therefore, of no assistance for decision of the controversy13. It may be mentioned that the original jurisdiction to try a petition for winding up of a company continues to remain in the High Court concerned even though the original jurisdiction in respect of a petition under Sections 397 and 398 is transferred to the Company Law Board. It is obvious that the appeal against an order made by the Company Judge of the High Court in apetition continues to lie before a Division Bench in the same High Court. If the construction suggested on behalf of the respondents be correct then that High Court would have no jurisdiction no entertain an appeal against the Company Law Boards order while appeal from the Company Judges order in apetition in respect of the same company would lie there. This appears to be incongruous. A possible anomaly of this kind would be prevented by taking the view which we haveIt is also noteworthy that the jurisdiction of the High Courts under Article 226, if it be exercisable in respect of an order made by the Company Law Board, would be determine by the place where the cause of action, or any part of it arises and the Delhi High Court alone would not be the High Court for that purpose. The High Court, within whose jurisdiction the registered office of the company concerned lies giving rise to at least a part of the cause of action, would be entitled to exercise the writ jurisdiction under Article 226 of the Constitution. It is a different matter that the existence of the efficacious remedy of statutory appeal under Sectionwould justify refusal of interference under Article 226. The Parliament could not have been unaware of this situation. This being so, it is difficult to accept that even though the High Court having jurisdiction in relation to the place at which the registered office of the company concerned is situate may be entitled to entertain a writ petition against an order made by the Company Law Board, it would have no jurisdiction to entertain the statutory appeal under Sectionof the Companies Act in respect of the same company, except in the case of the Delhi High Court. No such distinction between the High Courts can be envisaged. It was precisely to remove such an anomaly in respect of the orders made by the Central Government or the other authorities situate in Delhi that the amendment was made in Article 226 as originally enacted in the Constitution. It is difficult to accept that, after that experience, a retrograde step was taken while enacting Sectionas suggested by the respondents16. Both sides have placed reliance on Section 54 of the Foreign Exchange Regulation Act, 1973 (for short "FERA") which provides an appeal to the High Court from any decision or order of the Appellate Board constituted under the Act. An explanation has been added therein to give the meaning of the expression "High Court". The absence of a similar explanation in Sectionof the Companies Act is relied on by both sides to support the rival contentions. In our opinion, the absence of a similar explanation in Sectiondoes not support the respondents contention. In the absence of provisions like Sections 2(11) and 10(1)(a) of the Companies Act in the FERA, addition of explanation in Section 54 of the FERA appears to have been considered necessary to remove any possible ambiguity. The other provisions in the Companies Act, 1956 and the historical background did not require any such explanation in SectionWe are also not impressed by the argument of Shri Shanti Bhushan based on clause 11 of the Letters Patent of the Lahore High Court. In the first place any general provision for appeal must give way to the special provision made in the Companies Act. The provision of appeal by insertion of Sectionis in substitution of the provision in the Letters Patent or similar enactment providing for appeal against orders of the Company Judge when the original jurisdiction was in the High Courts. If the construction made by us of Sectionand the other relevant provisions of the Companies Act is correct, the provision in the Letters Patent of the Lahore High Court would not be material for deciding which High Court has jurisdiction to entertain the appeal since the appeal would lie by virtue of the specific provision in Sectionof the Companies Act. In this context, any further discussion of the provision in the Letters Patent of any High Court cannot have any significance
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MANAGEMENT OF THE BARARA COOPERATIVE MARKETING CUM PROCESSING SOCIETY LTD Vs. WORKMAN PRATAP SINGH | therein that since the appellant has recently regularized the services of two peons on 01.01.1992 vide their resolution dated 02.08.1993, therefore, he has become entitled to claim reemployment in the appellants services in terms of Section 25 (H) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act”). The appellant, however, did not accept the prayer made by the respondent.8. This led to making of an industrial reference to the Labour Court by the State at the instance of the respondent for deciding the question as to whether the respondent is entitled to claim reemployment in the appellants services in terms of Section 25 (H) of the ID Act.9. The Labour Court answered the reference against the respondent and in appellants favour. In other words, the Labour Court held that the respondent was not entitled to claim any benefit of Section 25 (H) of the ID Act to claim reemployment in the appellants services on the facts stated by the respondent in his statement of claim.10. The respondent felt aggrieved and filed writ petition in the High Court. The Single Judge by order dated 26.11.2009 allowed the writ petition and set aside the award of the Labour Court.The High Court directed reemployment of the respondent on the post of Peon in the appellants services. The appellant employer felt aggrieved and filed appeal before the Division Bench.11. By impugned order, the Division Bench dismissed the appeal and upheld the order of the Single Judge, which has given rise to filing of the present appeal by way of special leave in this Court by the employerthe appellant.12. Heard Mr. Ajay Kumar, learned counsel for the appellant and Mr. Shish Pal Laler, learned counsel for the respondent.13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the orders of the High Court (Single Judge and the Division Bench) restore the award of the Labour Court.14. In our considered opinion, there was no case made out by the respondent (workman) seeking re employment in the appellants services on the basis of Section 25 (H) of the ID Act.15. In the first place, the respondent having accepted the compensation awarded to him in lieu of his right of reinstatement in service, the said issue had finally come to an end; and Second, Section 25 (H) of the ID Act had no application to the case at hand.16. Section 25(H) of the ID Act applies to the cases where employer has proposed to take into their employment any persons to fill up the vacancies.It is at that time, the employer is required to give an opportunity to the“retrenched workman” and offer him reemployment and if such retrenched workman offers himself for reemployment, he shall have preference over other persons, who have applied for employment against the vacancy advertised.17. The object behind enacting Section 25(H) of the ID Act is to give preference to retrenched employee over other persons by offering them reemployment in the services when the employer takes a decision to fill up the new vacancies.18. Section 25(H) of the ID Act is required to be implemented as per the procedure prescribed in Rule 78 of the Industrial Disputes (Central) Rules, 1957 (hereinafter referred to as“the ID Rules”) which, in clear terms, provides that Section 25(H) of the ID Act is applicable only when the employer decides to fill up the vacancies in their set up by recruiting persons. It provides for issuance of notice to retrenched employee prescribed therein in that behalf.19. So, in order to attract the provisions of Section 25(H) of the ID Act, it must be proved by the workman that firstly, he was the “retrenched employee” and secondly, his exemployer has decided to fill up the vacancies in their set up and, therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking reemployment in the services.20. The case at hand is a case where the respondents termination was held illegal and, in consequence thereof, he was awarded lump sum compensation of Rs.12,500/ in full and final satisfaction.It is not in dispute that the respondent also accepted the compensation.This was, therefore, not a case of a retrenchment of the respondent from service as contemplated under Section 25(H) of the ID Act.21. That apart and more importantly, the respondent was not entitled to invoke the provisions of Section 25 (H) of the ID Act and seek re employment by citing the case of another employee (Peon) who was already in employment and whose services were only regularized by the appellant on the basis of his service record in terms of the Rules.22. In our view, the regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25 (H) of the ID Act for claiming re employment in the services. The reason is that by such act the employer do not offer any fresh employment to any person to fill any vacancy in their set up but they simply regularize the services of an employee already in service. Such act does not amount to filling any vacancy.23. In our view, there lies a distinction between the expression ‘employment’ and ‘regularization of the service”. The expression ‘employment’ signifies a fresh employment to fill the vacancies whereas the expression ‘regularization of the service’ signifies that the employee, who is already in service, his services are regularized as per service regulations.24. In our view, the Labour Court was, therefore, justified in answering the reference in appellants favour and against the respondent by rightly holding that Section 25(H) of the ID Act had no application to the facts of this case whereas the High Court (Single Judge and Division Bench) was not right in allowing the respondents prayer by directing the appellant to give him reemployment on the post of Peon. | 1[ds]14. In our considered opinion, there was no case made out by the respondent (workman) seekingemployment in theservices on the basis of Section 25 (H) of the ID Act.15. In the first place, the respondent having accepted the compensation awarded to him in lieu of his right of reinstatement in service, the said issue had finally come to an end; and Second, Section 25 (H) of the ID Act had no application to the case at hand.16. Section 25(H) of the ID Act applies to the cases where employer has proposed to take into their employment any persons to fill up the vacancies.It is at that time, the employer is required to give an opportunity to thend offer himand if such retrenched workman offers himself forhe shall have preference over other persons, who have applied for employment against the vacancy advertised.17. The object behind enacting Section 25(H) of the ID Act is to give preference to retrenched employee over other persons by offering themservices when the employer takes a decision to fill up the new vacancies.18. Section 25(H) of the ID Act is required to be implemented as per the procedure prescribed in Rule 78 of the Industrial Disputes (Central) Rules, 1957 (hereinafter referred to aswhich, in clear terms, provides that Section 25(H) of the ID Act is applicable only when the employer decides to fill up the vacancies in their set up by recruiting persons. It provides for issuance of notice to retrenched employee prescribed therein in that behalf.19. So, in order to attract the provisions of Section 25(H) of the ID Act, it must be proved by the workman that firstly, he was thend secondly, hishas decided to fill up the vacancies in their set up and, therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking. The case at hand is a case where thetermination was held illegal and, in consequence thereof, he was awarded lump sum compensation ofin full and final satisfaction.It is not in dispute that the respondent also accepted the compensation.This was, therefore, not a case of a retrenchment of the respondent from service as contemplated under Section 25(H) of the ID Act.21. That apart and more importantly, the respondent was not entitled to invoke the provisions of Section 25 (H) of the ID Act and seekemployment by citing the case of another employee (Peon) who was already in employment and whose services were only regularized by the appellant on the basis of his service record in terms of the Rules.22. In our view, the regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25 (H) of the ID Act for claimingt in theservices. The reason is that by such act the employer do not offer any fresh employment to any person to fill any vacancy in their set up but they simply regularize the services of an employee already in service. Such act does not amount to filling any vacancy.23. In our view, there lies a distinction between the expressionand ‘regularization of thesignifies a fresh employment to fill the vacancies whereas the expression ‘regularization of thesignifies that the employee, who is already in service, his services are regularized as per service regulations.24. In our view, the Labour Court was, therefore, justified in answering the reference infavour and against the respondent by rightly holding that Section 25(H) of the ID Act had no application to the facts of this case whereas the High Court (Single Judge and Division Bench) was not right in allowing theprayer by directing the appellant to give himon the post of Peon. | 1 | 1,403 | 705 | ### 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:
therein that since the appellant has recently regularized the services of two peons on 01.01.1992 vide their resolution dated 02.08.1993, therefore, he has become entitled to claim reemployment in the appellants services in terms of Section 25 (H) of the Industrial Disputes Act, 1947 (hereinafter referred to as “the ID Act”). The appellant, however, did not accept the prayer made by the respondent.8. This led to making of an industrial reference to the Labour Court by the State at the instance of the respondent for deciding the question as to whether the respondent is entitled to claim reemployment in the appellants services in terms of Section 25 (H) of the ID Act.9. The Labour Court answered the reference against the respondent and in appellants favour. In other words, the Labour Court held that the respondent was not entitled to claim any benefit of Section 25 (H) of the ID Act to claim reemployment in the appellants services on the facts stated by the respondent in his statement of claim.10. The respondent felt aggrieved and filed writ petition in the High Court. The Single Judge by order dated 26.11.2009 allowed the writ petition and set aside the award of the Labour Court.The High Court directed reemployment of the respondent on the post of Peon in the appellants services. The appellant employer felt aggrieved and filed appeal before the Division Bench.11. By impugned order, the Division Bench dismissed the appeal and upheld the order of the Single Judge, which has given rise to filing of the present appeal by way of special leave in this Court by the employerthe appellant.12. Heard Mr. Ajay Kumar, learned counsel for the appellant and Mr. Shish Pal Laler, learned counsel for the respondent.13. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal and while setting aside the orders of the High Court (Single Judge and the Division Bench) restore the award of the Labour Court.14. In our considered opinion, there was no case made out by the respondent (workman) seeking re employment in the appellants services on the basis of Section 25 (H) of the ID Act.15. In the first place, the respondent having accepted the compensation awarded to him in lieu of his right of reinstatement in service, the said issue had finally come to an end; and Second, Section 25 (H) of the ID Act had no application to the case at hand.16. Section 25(H) of the ID Act applies to the cases where employer has proposed to take into their employment any persons to fill up the vacancies.It is at that time, the employer is required to give an opportunity to the“retrenched workman” and offer him reemployment and if such retrenched workman offers himself for reemployment, he shall have preference over other persons, who have applied for employment against the vacancy advertised.17. The object behind enacting Section 25(H) of the ID Act is to give preference to retrenched employee over other persons by offering them reemployment in the services when the employer takes a decision to fill up the new vacancies.18. Section 25(H) of the ID Act is required to be implemented as per the procedure prescribed in Rule 78 of the Industrial Disputes (Central) Rules, 1957 (hereinafter referred to as“the ID Rules”) which, in clear terms, provides that Section 25(H) of the ID Act is applicable only when the employer decides to fill up the vacancies in their set up by recruiting persons. It provides for issuance of notice to retrenched employee prescribed therein in that behalf.19. So, in order to attract the provisions of Section 25(H) of the ID Act, it must be proved by the workman that firstly, he was the “retrenched employee” and secondly, his exemployer has decided to fill up the vacancies in their set up and, therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking reemployment in the services.20. The case at hand is a case where the respondents termination was held illegal and, in consequence thereof, he was awarded lump sum compensation of Rs.12,500/ in full and final satisfaction.It is not in dispute that the respondent also accepted the compensation.This was, therefore, not a case of a retrenchment of the respondent from service as contemplated under Section 25(H) of the ID Act.21. That apart and more importantly, the respondent was not entitled to invoke the provisions of Section 25 (H) of the ID Act and seek re employment by citing the case of another employee (Peon) who was already in employment and whose services were only regularized by the appellant on the basis of his service record in terms of the Rules.22. In our view, the regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25 (H) of the ID Act for claiming re employment in the services. The reason is that by such act the employer do not offer any fresh employment to any person to fill any vacancy in their set up but they simply regularize the services of an employee already in service. Such act does not amount to filling any vacancy.23. In our view, there lies a distinction between the expression ‘employment’ and ‘regularization of the service”. The expression ‘employment’ signifies a fresh employment to fill the vacancies whereas the expression ‘regularization of the service’ signifies that the employee, who is already in service, his services are regularized as per service regulations.24. In our view, the Labour Court was, therefore, justified in answering the reference in appellants favour and against the respondent by rightly holding that Section 25(H) of the ID Act had no application to the facts of this case whereas the High Court (Single Judge and Division Bench) was not right in allowing the respondents prayer by directing the appellant to give him reemployment on the post of Peon.
### Response:
1
### Explanation:
14. In our considered opinion, there was no case made out by the respondent (workman) seekingemployment in theservices on the basis of Section 25 (H) of the ID Act.15. In the first place, the respondent having accepted the compensation awarded to him in lieu of his right of reinstatement in service, the said issue had finally come to an end; and Second, Section 25 (H) of the ID Act had no application to the case at hand.16. Section 25(H) of the ID Act applies to the cases where employer has proposed to take into their employment any persons to fill up the vacancies.It is at that time, the employer is required to give an opportunity to thend offer himand if such retrenched workman offers himself forhe shall have preference over other persons, who have applied for employment against the vacancy advertised.17. The object behind enacting Section 25(H) of the ID Act is to give preference to retrenched employee over other persons by offering themservices when the employer takes a decision to fill up the new vacancies.18. Section 25(H) of the ID Act is required to be implemented as per the procedure prescribed in Rule 78 of the Industrial Disputes (Central) Rules, 1957 (hereinafter referred to aswhich, in clear terms, provides that Section 25(H) of the ID Act is applicable only when the employer decides to fill up the vacancies in their set up by recruiting persons. It provides for issuance of notice to retrenched employee prescribed therein in that behalf.19. So, in order to attract the provisions of Section 25(H) of the ID Act, it must be proved by the workman that firstly, he was thend secondly, hishas decided to fill up the vacancies in their set up and, therefore, he is entitled to claim preference over those persons, who have applied against such vacancies for a job while seeking. The case at hand is a case where thetermination was held illegal and, in consequence thereof, he was awarded lump sum compensation ofin full and final satisfaction.It is not in dispute that the respondent also accepted the compensation.This was, therefore, not a case of a retrenchment of the respondent from service as contemplated under Section 25(H) of the ID Act.21. That apart and more importantly, the respondent was not entitled to invoke the provisions of Section 25 (H) of the ID Act and seekemployment by citing the case of another employee (Peon) who was already in employment and whose services were only regularized by the appellant on the basis of his service record in terms of the Rules.22. In our view, the regularization of an employee already in service does not give any right to retrenched employee so as to enable him to invoke Section 25 (H) of the ID Act for claimingt in theservices. The reason is that by such act the employer do not offer any fresh employment to any person to fill any vacancy in their set up but they simply regularize the services of an employee already in service. Such act does not amount to filling any vacancy.23. In our view, there lies a distinction between the expressionand ‘regularization of thesignifies a fresh employment to fill the vacancies whereas the expression ‘regularization of thesignifies that the employee, who is already in service, his services are regularized as per service regulations.24. In our view, the Labour Court was, therefore, justified in answering the reference infavour and against the respondent by rightly holding that Section 25(H) of the ID Act had no application to the facts of this case whereas the High Court (Single Judge and Division Bench) was not right in allowing theprayer by directing the appellant to give himon the post of Peon.
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HAV (OFC) RWMWI BORGOYARY Vs. UNION OF INDIA | NCOs from AIG (FD), AIG (CB), AIG (ADO) and TIFC (AD & FD) category or Clk/ SKsT Grade-I with five years experience in accounting/ holding of Army Eqpt/ Stores. 7. It was further contended on behalf of the Respondent that the qualification of TIFC (AD & FD) which is acquired only after selection for the course and a ten month long training at AD College, followed by gaining experience as an instructor is compulsory. The Respondents response to the submission made on behalf of the Appellants that other similarly placed persons were appointed as TEOs was that an error was committed in making a few appointments and the Appellants were not entitled to be appointed as they were ineligible. 8. The Tribunal held that training for the trade of Operator Fire Control (OFC) cannot be a substitute for the qualification of T echnical Instructor Fire Control (AD & FD) as the latter requires much more capability, skill and training as compared to the former. The Tribunal was of the opinion that the Appellants were not entitled to seek parity with a few appointments which were made due to a mistake. 9. Mr. Sudhanshu S. Pandey, learned counsel for the Appellants submitted that Army Instruction Nos.84 and 85 dated 12.10.1974 govern the selection of JCOs/ NCOs for granting permanent commission (Special List) in the Army, in respect of Equipment Officers. The eligibility prescribed in the Army Instructions for grant of permanent commission for JCOs and NCOs commissioned from Army ranks is that the candidates should have minimum educational qualification for appointment to the Special List. In addition, the candidates must have specialized knowledge and practical experience connected with the duties of the posts to which they applied. Mr. Pandey submitted that the standing instructions issued by the Adjutant Generals Branch, integrated HQ, Ministry of Defence (Army) on 17.01.2007 prescribing additional qualifications for appointment to the post of TEO suffer from the vice of lack of jurisdiction. He also submitted that the standing instructions issued on 17.01.2007 cannot override Army Order dated 12.10.1974. He further contended that two persons who were similarly situated to the Appellants have been granted permanent commission and were also permitted to continue as commissioned officers and as such, there is no reason why the said benefit cannot be extended to the Appellants.10. On behalf of the Respondents, it was contended that by a letter dated 01.09.2006 of the Ministry of Defence, Administrative Powers of the Service Headquarters were delegated to the Adjutant General (Army), and he was authorized to introduce new entry schemes/ disciplines including technical educational qualifications for induction of personnel into the Army with no financial implications. TEO (AAD) category was introduced by the standing Instructions dated 17.01.2007 by Adjutant General (Army) and it cannot be said that the said Instructions providing for the eligibility criteria for the post of TEO are contrary to the Army Order dated 12.10.1974. The Appellants had applied to TEO (AAD) category and PC (SL) category as well. An error was committed in processing their selection for appointment to the post of TEO (AAD), which was realised later and they were held ineligible as they did not have the qualification of TIFC (AD & FD). The Appellants were considered for appointment to the post of Record Officer, but could not be selected. In respect of the submission pertaining to discrimination, it was argued by the learned counsel for the Respondents that the mistake committed in appointing certain ineligible persons is under investigation and corrective action will be taken. 11. We have examined the submissions made by learned counsel and we are of the considered opinion that the Appellants are not entitled to the relief claimed. There is no merit in the submission made by the learned counsel for the Appellants that the Army Order Nos.84 and 85 issued on 12.10.1974 have to be followed and the Instructions issued on 17.01.2007 should be ignored. The Instructions issued on 17.01.2007 are in addition to the Instructions dated 12.10.1974. Moreover, the Appellants had applied and participated in the selection conducted for the posts of Record Officer and TEOs cannot be permitted to challenge the Instructions of 2007. There is no dispute that the Appellants were aware of the Instructions of 2007. It is also not disputed that the Appellants were considered for the post of Record Officers and were not selected due to lack of merit. No objection was raised by the Appellants during the process of selection. 12. We are in agreement with the Tribunal that selection to the post of T echnical Equipment Officer requires standards of high order and training in the trade of Operator Fire Control (OFC) is no substitute for the qualification of T echnical Instructor Fire Control (AD & FD). The Appellants who do not have the qualification of T echnical Instructor Fire Control (AD & FD) cannot claim appointment to the post of TEO in Air Defence Branch. 13. Learned counsel for the Appellants contended that non-consideration of the Appellants for appointment as TEO is vitiated by hostile discrimination as two other persons who were similarly situated were appointed as TEOs and are continuing. It is trite law that the right to equality cannot be claimed in a case where a benefit has been given to a person contrary to law. If a mistake has been committed by the authorities in appointing few persons who were not eligible, a claim cannot be made by other ineligible persons seeking a direction to the authorities to appoint them in violation of the instructions. After referring to several judgments, this Court in State of Odisha & Anr. v. Anup Kumar Senapati & Anr. (1) 2019 SCC Online SC 1207 held that there is no concept of negative equality under Article 14 of the Constitution of India. The Appellants cannot, as a matter of right, claim appointment on the basis of two ineligible persons being given the benefit and no direction can be given to the Respondents to perpetuate illegality. | 0[ds]11. We have examined the submissions made by learned counsel and we are of the considered opinion that the Appellants are not entitled to the relief claimed. There is no merit in the submission made by the learned counsel for the Appellants that the Army Order Nos.84 and 85 issued on 12.10.1974 have to be followed and the Instructions issued on 17.01.2007 should be ignored. The Instructions issued on 17.01.2007 are in addition to the Instructions dated 12.10.1974. Moreover, the Appellants had applied and participated in the selection conducted for the posts of Record Officer and TEOs cannot be permitted to challenge the Instructions of 2007. There is no dispute that the Appellants were aware of the Instructions of 2007. It is also not disputed that the Appellants were considered for the post of Record Officers and were not selected due to lack of merit. No objection was raised by the Appellants during the process of selection12. We are in agreement with the Tribunal that selection to the post of T echnical Equipment Officer requires standards of high order and training in the trade of Operator Fire Control (OFC) is no substitute for the qualification of T echnical Instructor Fire Control (AD & FD). The Appellants who do not have the qualification of T echnical Instructor Fire Control (AD & FD) cannot claim appointment to the post of TEO in Air Defence BranchIt is trite law that the right to equality cannot be claimed in a case where a benefit has been given to a person contrary to law. If a mistake has been committed by the authorities in appointing few persons who were not eligible, a claim cannot be made by other ineligible persons seeking a direction to the authorities to appoint them in violation of the instructions. After referring to several judgments, this Court in State of Odisha & Anr. v. Anup Kumar Senapati & Anr.(1) 2019 SCC Online SC 1207held that there is no concept of negative equality under Article 14 of the Constitution of India. The Appellants cannot, as a matter of right, claim appointment on the basis of two ineligible persons being given the benefit and no direction can be given to the Respondents to perpetuate illegality. | 0 | 1,708 | 410 | ### 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:
NCOs from AIG (FD), AIG (CB), AIG (ADO) and TIFC (AD & FD) category or Clk/ SKsT Grade-I with five years experience in accounting/ holding of Army Eqpt/ Stores. 7. It was further contended on behalf of the Respondent that the qualification of TIFC (AD & FD) which is acquired only after selection for the course and a ten month long training at AD College, followed by gaining experience as an instructor is compulsory. The Respondents response to the submission made on behalf of the Appellants that other similarly placed persons were appointed as TEOs was that an error was committed in making a few appointments and the Appellants were not entitled to be appointed as they were ineligible. 8. The Tribunal held that training for the trade of Operator Fire Control (OFC) cannot be a substitute for the qualification of T echnical Instructor Fire Control (AD & FD) as the latter requires much more capability, skill and training as compared to the former. The Tribunal was of the opinion that the Appellants were not entitled to seek parity with a few appointments which were made due to a mistake. 9. Mr. Sudhanshu S. Pandey, learned counsel for the Appellants submitted that Army Instruction Nos.84 and 85 dated 12.10.1974 govern the selection of JCOs/ NCOs for granting permanent commission (Special List) in the Army, in respect of Equipment Officers. The eligibility prescribed in the Army Instructions for grant of permanent commission for JCOs and NCOs commissioned from Army ranks is that the candidates should have minimum educational qualification for appointment to the Special List. In addition, the candidates must have specialized knowledge and practical experience connected with the duties of the posts to which they applied. Mr. Pandey submitted that the standing instructions issued by the Adjutant Generals Branch, integrated HQ, Ministry of Defence (Army) on 17.01.2007 prescribing additional qualifications for appointment to the post of TEO suffer from the vice of lack of jurisdiction. He also submitted that the standing instructions issued on 17.01.2007 cannot override Army Order dated 12.10.1974. He further contended that two persons who were similarly situated to the Appellants have been granted permanent commission and were also permitted to continue as commissioned officers and as such, there is no reason why the said benefit cannot be extended to the Appellants.10. On behalf of the Respondents, it was contended that by a letter dated 01.09.2006 of the Ministry of Defence, Administrative Powers of the Service Headquarters were delegated to the Adjutant General (Army), and he was authorized to introduce new entry schemes/ disciplines including technical educational qualifications for induction of personnel into the Army with no financial implications. TEO (AAD) category was introduced by the standing Instructions dated 17.01.2007 by Adjutant General (Army) and it cannot be said that the said Instructions providing for the eligibility criteria for the post of TEO are contrary to the Army Order dated 12.10.1974. The Appellants had applied to TEO (AAD) category and PC (SL) category as well. An error was committed in processing their selection for appointment to the post of TEO (AAD), which was realised later and they were held ineligible as they did not have the qualification of TIFC (AD & FD). The Appellants were considered for appointment to the post of Record Officer, but could not be selected. In respect of the submission pertaining to discrimination, it was argued by the learned counsel for the Respondents that the mistake committed in appointing certain ineligible persons is under investigation and corrective action will be taken. 11. We have examined the submissions made by learned counsel and we are of the considered opinion that the Appellants are not entitled to the relief claimed. There is no merit in the submission made by the learned counsel for the Appellants that the Army Order Nos.84 and 85 issued on 12.10.1974 have to be followed and the Instructions issued on 17.01.2007 should be ignored. The Instructions issued on 17.01.2007 are in addition to the Instructions dated 12.10.1974. Moreover, the Appellants had applied and participated in the selection conducted for the posts of Record Officer and TEOs cannot be permitted to challenge the Instructions of 2007. There is no dispute that the Appellants were aware of the Instructions of 2007. It is also not disputed that the Appellants were considered for the post of Record Officers and were not selected due to lack of merit. No objection was raised by the Appellants during the process of selection. 12. We are in agreement with the Tribunal that selection to the post of T echnical Equipment Officer requires standards of high order and training in the trade of Operator Fire Control (OFC) is no substitute for the qualification of T echnical Instructor Fire Control (AD & FD). The Appellants who do not have the qualification of T echnical Instructor Fire Control (AD & FD) cannot claim appointment to the post of TEO in Air Defence Branch. 13. Learned counsel for the Appellants contended that non-consideration of the Appellants for appointment as TEO is vitiated by hostile discrimination as two other persons who were similarly situated were appointed as TEOs and are continuing. It is trite law that the right to equality cannot be claimed in a case where a benefit has been given to a person contrary to law. If a mistake has been committed by the authorities in appointing few persons who were not eligible, a claim cannot be made by other ineligible persons seeking a direction to the authorities to appoint them in violation of the instructions. After referring to several judgments, this Court in State of Odisha & Anr. v. Anup Kumar Senapati & Anr. (1) 2019 SCC Online SC 1207 held that there is no concept of negative equality under Article 14 of the Constitution of India. The Appellants cannot, as a matter of right, claim appointment on the basis of two ineligible persons being given the benefit and no direction can be given to the Respondents to perpetuate illegality.
### Response:
0
### Explanation:
11. We have examined the submissions made by learned counsel and we are of the considered opinion that the Appellants are not entitled to the relief claimed. There is no merit in the submission made by the learned counsel for the Appellants that the Army Order Nos.84 and 85 issued on 12.10.1974 have to be followed and the Instructions issued on 17.01.2007 should be ignored. The Instructions issued on 17.01.2007 are in addition to the Instructions dated 12.10.1974. Moreover, the Appellants had applied and participated in the selection conducted for the posts of Record Officer and TEOs cannot be permitted to challenge the Instructions of 2007. There is no dispute that the Appellants were aware of the Instructions of 2007. It is also not disputed that the Appellants were considered for the post of Record Officers and were not selected due to lack of merit. No objection was raised by the Appellants during the process of selection12. We are in agreement with the Tribunal that selection to the post of T echnical Equipment Officer requires standards of high order and training in the trade of Operator Fire Control (OFC) is no substitute for the qualification of T echnical Instructor Fire Control (AD & FD). The Appellants who do not have the qualification of T echnical Instructor Fire Control (AD & FD) cannot claim appointment to the post of TEO in Air Defence BranchIt is trite law that the right to equality cannot be claimed in a case where a benefit has been given to a person contrary to law. If a mistake has been committed by the authorities in appointing few persons who were not eligible, a claim cannot be made by other ineligible persons seeking a direction to the authorities to appoint them in violation of the instructions. After referring to several judgments, this Court in State of Odisha & Anr. v. Anup Kumar Senapati & Anr.(1) 2019 SCC Online SC 1207held that there is no concept of negative equality under Article 14 of the Constitution of India. The Appellants cannot, as a matter of right, claim appointment on the basis of two ineligible persons being given the benefit and no direction can be given to the Respondents to perpetuate illegality.
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Ratna Sugar Mills Co. Ltd Vs. State Of U.P. And Others | securing successful implementation of the Second Five Year Plan, it has become necessary to augment the revenues of the State. The Agricultural Income Tax Act, which was enacted at a time when zamindari system was in force, has become out of date in the context of post war zamindari era. The principle of social justice enshrined in our Constitution also demands that disparities between agricultural incomes be reduced. More efficient exploitation of agricultural lands is essential for increasing the food production in the State. Those big holders who do not fulfill their duty towards society will have to sell up, as they should, if they fail in making increased contribution to the exchequer in the form of holding tax under this legislation. With these objects in view, the Agricultural Income Tax Act, 1948, is being replaced and this Bill is being introduced.The Bill seeks to levy a holding tax on all land holdings the annual value of which exceeds Rs. 3, 600. A cultivator who does not cultivate more than 30 acres of land would be exempt from this tax. The Bill is so designed as not to affect the small cultivator. It is proposed to levy the tax on a graduated scale so that the larger the holding, the greater the incidence of the tax."5. Section 3 of the Act is the charging section. According to sub-section (1) of that section, the re shall, save as hereinafter provided, be charged, levied and paid, for each agricultural year, on the annual value of each land holding, a tax called the holding tax at the rates specified in the Schedule provided that no such tax shall be charged on any land holding the area whereof does not exceed thirty acres. Section 2(15) of the Act defines land as under:"(15) `land means land, whether assessed to land revenue or not, which is held or occupied for a purpose connected with agriculture, horticulture, animal husbandry, pisciculture or poultry farming and includes uncultivated land held by a landholder as such":The definition of land-holder is given in section 2(16) and the same reads as under:"(16) land-holder means-(i) an intermediary, where the land is in his personal cultivation or is held as sir, khudkasht or grove, and(ii) any other person who holds or occupies land otherwise than as-(a) an asami.(b) a sub-tenant.(c) a tenant of sir, or(d) a sirtan.and includes a manager or a principal officer, as the case may be:Explanation-In this clause asami does not include an asami of Gaon Samaj:"The Act took the place of the U.P. Agricultural Income Tax Act, 1948 which stood repealed in pursuance of section 28 of the Act from the date the Act came into force. It may also be pointed out that this Act has been itself subsequently repealed by section 45 of the U.P. Imposition of Ceilings on Land-holdings Act, 1961 as from June 30, 1961.6. In appeal before us Mr. Tarkunde on behalf of the appellant has argued that the land in question does not constitute land as defined in section 2(15) of the Act and as such the appellant is not liable to pay holding tax on the said land. The land in question, according to the learned counsel, is held for industrial purposes and not for purposes of agriculture, horticulture, animal husbandry, pisciculture or poultry farming. The above contentions have been controverted by Mr. Dikshit on behalf of the State and, in our opinion, the contentions are not well-founded.7. The land in dispute is shown to be Banjar land in the revenue records. Although the appellant acquired the land in 1951 for the purpose of setting up a factory, somehow the factory could not be set up and the land remained uncultivated. The appellant holds the land as a sirdr. An application was filed by the appellant for permission to use the land in question for industrial purposes, but that permission was not granted, the order of the Sub-Divisional Officer in this respect was affirmed on appeal by the Collector. A sirdar under section 146 of the U.P. Zamindari Abolition and Land Reforms Act, has the right to the exclusive possession of the land and entitled to use it for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. It is, therefore, apparent that after the order which was made on the appellants application under section 143 of the U.P. Zamindari Abolition and Reforms A ct, the appellant cannot be said to hold the land in dispute for industrial purpose. The purpose for which the appellant could after that date use the land was agriculture, horticulture or animal husbandry including pisciculture and poultry f arming. The fact that the appellant did not cultivate the land in question would not warrant exemption from the liability to pay the holding tax. The definition of the "land" includes uncultivated land held by a land-holder as such. The High Court held that the words "as such" did not pertain to the purpose for which the land is held but have reference to the land being held by the land holder in his capacity as a landholder. We see no sufficient ground to take a different view. In any ca se even if the words "as such" be construed to mean that the land should be held for the purpose of agriculture, horticulture, animal husbandry, pisciculture or poultry farming, the land in question should be taken to satisfy that requirement, because those are the only purposes for which the said land can now be used. The word "lands" used in the Act, as mentioned in the case of Raja Jagannath Baksh Singh v. State of Uttar Pradesh &Anr., is wide enough to include all lands whet her agricultural or not. The object of the Act, as mentioned in the objects and reasons, is more efficiency exploitation of agricultural land for increased food production. The appellant, in our opinion, cannot escape liability for payment of holding tax by keeping the land in question uncultivated. | 0[ds]The land in dispute is shown to be Banjar land in the revenue records. Although the appellant acquired the land in 1951 for the purpose of setting up a factory, somehow the factory could not be set up and the land remained uncultivated. The appellant holds the land as a sirdr. An application was filed by the appellant for permission to use the land in question for industrial purposes, but that permission was not granted, the order of the Sub-Divisional Officer in this respect was affirmed on appeal by the Collector. A sirdar under section 146 of the U.P. Zamindari Abolition and Land Reforms Act, has the right to the exclusive possession of the land and entitled to use it for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. It is, therefore, apparent that after the order which was made on the appellants application under section 143 of the U.P. Zamindari Abolition and Reforms A ct, the appellant cannot be said to hold the land in dispute for industrial purpose. The purpose for which the appellant could after that date use the land was agriculture, horticulture or animal husbandry including pisciculture and poultry f arming. The fact that the appellant did not cultivate the land in question would not warrant exemption from the liability to pay the holding tax. The definition of the "land" includes uncultivated land held by a land-holder as such. The High Court held that the words "as such" did not pertain to the purpose for which the land is held but have reference to the land being held by the land holder in his capacity as a landholder. We see no sufficient ground to take a different view. In any ca se even if the words "as such" be construed to mean that the land should be held for the purpose of agriculture, horticulture, animal husbandry, pisciculture or poultry farming, the land in question should be taken to satisfy that requirement, because those are the only purposes for which the said land can now be used. The word "lands" used in the Act, as mentioned in the case of Raja Jagannath Baksh Singh v. State of Uttar Pradesh &Anr., is wide enough to include all lands whet her agricultural or not. The object of the Act, as mentioned in the objects and reasons, is more efficiency exploitation of agricultural land for increased food production. The appellant, in our opinion, cannot escape liability for payment of holding tax by keeping the land in question uncultivated. | 0 | 1,969 | 477 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
securing successful implementation of the Second Five Year Plan, it has become necessary to augment the revenues of the State. The Agricultural Income Tax Act, which was enacted at a time when zamindari system was in force, has become out of date in the context of post war zamindari era. The principle of social justice enshrined in our Constitution also demands that disparities between agricultural incomes be reduced. More efficient exploitation of agricultural lands is essential for increasing the food production in the State. Those big holders who do not fulfill their duty towards society will have to sell up, as they should, if they fail in making increased contribution to the exchequer in the form of holding tax under this legislation. With these objects in view, the Agricultural Income Tax Act, 1948, is being replaced and this Bill is being introduced.The Bill seeks to levy a holding tax on all land holdings the annual value of which exceeds Rs. 3, 600. A cultivator who does not cultivate more than 30 acres of land would be exempt from this tax. The Bill is so designed as not to affect the small cultivator. It is proposed to levy the tax on a graduated scale so that the larger the holding, the greater the incidence of the tax."5. Section 3 of the Act is the charging section. According to sub-section (1) of that section, the re shall, save as hereinafter provided, be charged, levied and paid, for each agricultural year, on the annual value of each land holding, a tax called the holding tax at the rates specified in the Schedule provided that no such tax shall be charged on any land holding the area whereof does not exceed thirty acres. Section 2(15) of the Act defines land as under:"(15) `land means land, whether assessed to land revenue or not, which is held or occupied for a purpose connected with agriculture, horticulture, animal husbandry, pisciculture or poultry farming and includes uncultivated land held by a landholder as such":The definition of land-holder is given in section 2(16) and the same reads as under:"(16) land-holder means-(i) an intermediary, where the land is in his personal cultivation or is held as sir, khudkasht or grove, and(ii) any other person who holds or occupies land otherwise than as-(a) an asami.(b) a sub-tenant.(c) a tenant of sir, or(d) a sirtan.and includes a manager or a principal officer, as the case may be:Explanation-In this clause asami does not include an asami of Gaon Samaj:"The Act took the place of the U.P. Agricultural Income Tax Act, 1948 which stood repealed in pursuance of section 28 of the Act from the date the Act came into force. It may also be pointed out that this Act has been itself subsequently repealed by section 45 of the U.P. Imposition of Ceilings on Land-holdings Act, 1961 as from June 30, 1961.6. In appeal before us Mr. Tarkunde on behalf of the appellant has argued that the land in question does not constitute land as defined in section 2(15) of the Act and as such the appellant is not liable to pay holding tax on the said land. The land in question, according to the learned counsel, is held for industrial purposes and not for purposes of agriculture, horticulture, animal husbandry, pisciculture or poultry farming. The above contentions have been controverted by Mr. Dikshit on behalf of the State and, in our opinion, the contentions are not well-founded.7. The land in dispute is shown to be Banjar land in the revenue records. Although the appellant acquired the land in 1951 for the purpose of setting up a factory, somehow the factory could not be set up and the land remained uncultivated. The appellant holds the land as a sirdr. An application was filed by the appellant for permission to use the land in question for industrial purposes, but that permission was not granted, the order of the Sub-Divisional Officer in this respect was affirmed on appeal by the Collector. A sirdar under section 146 of the U.P. Zamindari Abolition and Land Reforms Act, has the right to the exclusive possession of the land and entitled to use it for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. It is, therefore, apparent that after the order which was made on the appellants application under section 143 of the U.P. Zamindari Abolition and Reforms A ct, the appellant cannot be said to hold the land in dispute for industrial purpose. The purpose for which the appellant could after that date use the land was agriculture, horticulture or animal husbandry including pisciculture and poultry f arming. The fact that the appellant did not cultivate the land in question would not warrant exemption from the liability to pay the holding tax. The definition of the "land" includes uncultivated land held by a land-holder as such. The High Court held that the words "as such" did not pertain to the purpose for which the land is held but have reference to the land being held by the land holder in his capacity as a landholder. We see no sufficient ground to take a different view. In any ca se even if the words "as such" be construed to mean that the land should be held for the purpose of agriculture, horticulture, animal husbandry, pisciculture or poultry farming, the land in question should be taken to satisfy that requirement, because those are the only purposes for which the said land can now be used. The word "lands" used in the Act, as mentioned in the case of Raja Jagannath Baksh Singh v. State of Uttar Pradesh &Anr., is wide enough to include all lands whet her agricultural or not. The object of the Act, as mentioned in the objects and reasons, is more efficiency exploitation of agricultural land for increased food production. The appellant, in our opinion, cannot escape liability for payment of holding tax by keeping the land in question uncultivated.
### Response:
0
### Explanation:
The land in dispute is shown to be Banjar land in the revenue records. Although the appellant acquired the land in 1951 for the purpose of setting up a factory, somehow the factory could not be set up and the land remained uncultivated. The appellant holds the land as a sirdr. An application was filed by the appellant for permission to use the land in question for industrial purposes, but that permission was not granted, the order of the Sub-Divisional Officer in this respect was affirmed on appeal by the Collector. A sirdar under section 146 of the U.P. Zamindari Abolition and Land Reforms Act, has the right to the exclusive possession of the land and entitled to use it for any purpose connected with agriculture, horticulture or animal husbandry which includes pisciculture and poultry farming. It is, therefore, apparent that after the order which was made on the appellants application under section 143 of the U.P. Zamindari Abolition and Reforms A ct, the appellant cannot be said to hold the land in dispute for industrial purpose. The purpose for which the appellant could after that date use the land was agriculture, horticulture or animal husbandry including pisciculture and poultry f arming. The fact that the appellant did not cultivate the land in question would not warrant exemption from the liability to pay the holding tax. The definition of the "land" includes uncultivated land held by a land-holder as such. The High Court held that the words "as such" did not pertain to the purpose for which the land is held but have reference to the land being held by the land holder in his capacity as a landholder. We see no sufficient ground to take a different view. In any ca se even if the words "as such" be construed to mean that the land should be held for the purpose of agriculture, horticulture, animal husbandry, pisciculture or poultry farming, the land in question should be taken to satisfy that requirement, because those are the only purposes for which the said land can now be used. The word "lands" used in the Act, as mentioned in the case of Raja Jagannath Baksh Singh v. State of Uttar Pradesh &Anr., is wide enough to include all lands whet her agricultural or not. The object of the Act, as mentioned in the objects and reasons, is more efficiency exploitation of agricultural land for increased food production. The appellant, in our opinion, cannot escape liability for payment of holding tax by keeping the land in question uncultivated.
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Commr. of Income Tax, Bombay South, Bombay Vs. Kirloskar Bros. Ltd | Das, J.1. The question referred by the Income-tax Appellate Tribunal for the opinion of the Bombay High Court was as follows :-- "Whether on the facts of the case, income, profits and gains in respect of sales made to Government of India was received in British India within the meaning of Section 4(1)(a) of the Act ?"2. The High Court answered the question in the negative for reasons set out in its judgment covering this case as well as the case out of which Appeal No. 19 of 1953 came to be filed before us3. The facts, found in this case, are similar to those found in Civil Appeal No. 19 of 1953--Commissioner of Income-tax, Bombay v. Messrs. Ogale Glass Works Ltd., except in the following particulars(1) that all cheques were made non-negotiable(2) that no credit was given by the bank to the assessee before collection(3) that there was no finding that the assessee gave credit to the Government for the amount of the cheque immediately on receipt thereof4. Learned counsel on either side did not suggest that the differences noted above would make any difference in the answer to the referred question which is the same as in the other appeal. That being the position, this case is governed by the judgment which has just been pronounced by us in the other appeal. We accordingly allow the appeal and answer the referred question in the affirmative. For reasons similar to those referred to in our judgment in that appeal each party must bear and pay his or its own costs both in this Court and in the High Court. | 1[ds]4. Learned counsel on either side did not suggest that the differences noted above would make any difference in the answer to the referred question which is the same as in the other appeal. That being the position, this case is governed by the judgment which has just been pronounced by us in the other appeal. We accordingly allow the appeal and answer the referred question in the affirmative. For reasons similar to those referred to in our judgment in that appeal each party must bear and pay his or its own costs both in this Court and in the High Court. | 1 | 309 | 112 | ### 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:
Das, J.1. The question referred by the Income-tax Appellate Tribunal for the opinion of the Bombay High Court was as follows :-- "Whether on the facts of the case, income, profits and gains in respect of sales made to Government of India was received in British India within the meaning of Section 4(1)(a) of the Act ?"2. The High Court answered the question in the negative for reasons set out in its judgment covering this case as well as the case out of which Appeal No. 19 of 1953 came to be filed before us3. The facts, found in this case, are similar to those found in Civil Appeal No. 19 of 1953--Commissioner of Income-tax, Bombay v. Messrs. Ogale Glass Works Ltd., except in the following particulars(1) that all cheques were made non-negotiable(2) that no credit was given by the bank to the assessee before collection(3) that there was no finding that the assessee gave credit to the Government for the amount of the cheque immediately on receipt thereof4. Learned counsel on either side did not suggest that the differences noted above would make any difference in the answer to the referred question which is the same as in the other appeal. That being the position, this case is governed by the judgment which has just been pronounced by us in the other appeal. We accordingly allow the appeal and answer the referred question in the affirmative. For reasons similar to those referred to in our judgment in that appeal each party must bear and pay his or its own costs both in this Court and in the High Court.
### Response:
1
### Explanation:
4. Learned counsel on either side did not suggest that the differences noted above would make any difference in the answer to the referred question which is the same as in the other appeal. That being the position, this case is governed by the judgment which has just been pronounced by us in the other appeal. We accordingly allow the appeal and answer the referred question in the affirmative. For reasons similar to those referred to in our judgment in that appeal each party must bear and pay his or its own costs both in this Court and in the High Court.
|
STATE OF KARNATAKA Vs. Y. MOIDEEN KUNHI (D) BY LRS. & ORS. | income of such person or family from such source. As we have already referred to, Section 79-B deals with prohibition of holding agricultural land by certain persons beyond a specified limit. Sub- clause (1) (a) provides that no person other than a person cultivating land personally shall be entitled to hold land. The said section further provides:- (b) it shall not be lawful for,- (i) an educational, religious or charitable institution or society or trust, other than an institution or society or trust referred to in sub-section (7) of section 63, capable of holding property; (ii) a company; (iii) an association or other body of individuals not being a joint family, whether incorporated or not; or (iv) a co-operative society other than a co- operative farm, to hold any land. (2) Every such institution, society, trust, company, association, body or co-operative society,— (a) which holds lands on the date of commencement of the Amendment Act and which is disentitled to hold lands under sub-section (1), shall, within ninety days from the said date, furnish to the Tahsildar within whose jurisdiction the greater part of such land is situated a declaration containing the particulars of such land and such other particulars as may prescribed; and (b) which acquires such land after the said date shall also furnish a similar declaration within the prescribed period. (3) The Tahsildar shall, on receipt of the declaration under sub-section (2) and after such enquiry as may be prescribed, send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that such land shall vest in the State Government free from all encumbrances and take possession thereof in the prescribed manner. (4) In respect of the land vesting in the State Government under this section an amount as specified in section 72 shall be paid. Explanation.—For purposes of this section it shall be presumed that a land is held by an institution, trust, company, association or body where it is held by an individual on its behalf. x x x x x 104. Plantations.— The provisions of section 38, section 63 other than sub-section (9) thereof, sections 64, 79-A, 79-B and 80, shall not apply to plantations. Explanation.—In this section Plantation means land used by a person principally for the cultivation of plantation crop and includes,— (i) any land used by such person for any purpose ancillary to the cultivation of such crop or for preparation of the same for the market; and (ii) agricultural land interspersed within the boundaries of the area cultivated with such crop by such person, not exceeding such extent as may be determined by the prescribed authority as necessary for the protection and efficient management of such cultivation. 12. On construction of different provisions of the 1961 Act, we find that in the event the Tribunals finding is correct that the major part of the land which the declarants have claimed to be plantation fits that description, then the prohibition imposed on holding of land by entities referred to in Sub-section 1 of Section 79-B would not apply, having regard to the provisions of Section 104 of the Act. But there is a factor which has not been clarified before us in course of hearing, which in our opinion would have had material impact on the rival claims. As per the deed of sale, the partnership firm had obtained forest area of 3485.83 acres. In the event this area is not held to be under plantation, then the land which has been found by the Tribunal to be beyond ceiling limit would be much beyond than what has been computed. Another issue which also appears to have not had been considered by the Tribunal and also the High Court is that the estate was originally purchased by registered firm. It has not been explained by the declarants as to how the estate of the firm devolved upon its partners. No legal instrument has been brought to our notice through which property of the firm became the partners individual property. This issue is of significance because under Section 79(1)(b)(iii), there is prohibition on an association or other body of individuals not being a joint family, whether incorporated or not in holding land. The latter factor, however, would assume importance in the event the land claimed to be under plantation is found to be incorrect as originally major part of the estate was forest land. But to determine this question, we do not think proper examination of factual situation had been undertaken. On this aspect of the dispute, States plea is that the spot inspection took place in a single day and having regard to the area involved, such an exercise was impossible. If this contention is examined in isolation, we would have had accepted the view of the High Court that at this stage there ought not to be any factual enquiry. But considering the fact that land purchased included large tract of forest land, we are of the view that the scrutiny on the part of the authorities in the case of the declarants land was inadequate. This is one of the main grounds on which the present appeal is founded. There is reference to a Writ Petition in the paper book filed by the original declarants with prayer for felling of trees on the subject-land. The petition was registered as Writ Petition No.42774 of 1982. In that proceeding an interim order was passed permitting felling of trees by the petitioners as per a list subject to the provisions of the Karnataka Preservation of Trees Act, 1976. After obtaining the interim order permitting such felling of trees, however, the writ petition was dismissed as not pressed at the instance of the declarants by an order passed on 7 th November, 1990. The said writ petition was dismissed as withdrawn after obtaining interim order, we do not think that the result of that writ petition would have any bearing on the present appeal. | 1[ds]From the judgment of the Review Court, we find that point was taken by the State that the estate was purchased by a firm but declaration of holding under Section 66 was given by three individuals. But the Review Court did not find any flaw in such exercise being undertaken by the individual declarants. On the other hand, the declaration filed under Section 66 of the 1961 Act was found to be valid for the reason that it was not the firm who had filed the declaration but three persons in their individual capacity12. On construction of different provisions of the 1961 Act, we find that in the event the Tribunals finding is correct that the major part of the land which the declarants have claimed to be plantation fits that description, then the prohibition imposed on holding of land by entities referred to in Sub-section 1 of Section 79-B would not apply, having regard to the provisions of Section 104 of the Act. But there is a factor which has not been clarified before us in course of hearing, which in our opinion would have had material impact on the rival claims. As per the deed of sale, the partnership firm had obtained forest area of 3485.83 acres. In the event this area is not held to be under plantation, then the land which has been found by the Tribunal to be beyond ceiling limit would be much beyond than what has been computed. Another issue which also appears to have not had been considered by the Tribunal and also the High Court is that the estate was originally purchased by registered firm. It has not been explained by the declarants as to how the estate of the firm devolved upon its partners. No legal instrument has been brought to our notice through which property of the firm became the partners individual property. This issue is of significance because under Section 79(1)(b)(iii), there is prohibition on an association or other body of individuals not being a joint family, whether incorporated or not in holding land. The latter factor, however, would assume importance in the event the land claimed to be under plantation is found to be incorrect as originally major part of the estate was forest land. But to determine this question, we do not think proper examination of factual situation had been undertaken. On this aspect of the dispute, States plea is that the spot inspection took place in a single day and having regard to the area involved, such an exercise was impossible. If this contention is examined in isolation, we would have had accepted the view of the High Court that at this stage there ought not to be any factual enquiry. But considering the fact that land purchased included large tract of forest land, we are of the view that the scrutiny on the part of the authorities in the case of the declarants land was inadequate. This is one of the main grounds on which the present appeal is founded. There is reference to a Writ Petition in the paper book filed by the original declarants with prayer for felling of trees on the subject-land. The petition was registered as Writ Petition No.42774 of 1982. In that proceeding an interim order was passed permitting felling of trees by the petitioners as per a list subject to the provisions of the Karnataka Preservation of Trees Act, 1976. After obtaining the interim order permitting such felling of trees, however, the writ petition was dismissed as not pressed at the instance of the declarants by an order passed on 7 th November, 1990. The said writ petition was dismissed as withdrawn after obtaining interim order, we do not think that the result of that writ petition would have any bearing on the present appeal. | 1 | 4,692 | 694 | ### 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:
income of such person or family from such source. As we have already referred to, Section 79-B deals with prohibition of holding agricultural land by certain persons beyond a specified limit. Sub- clause (1) (a) provides that no person other than a person cultivating land personally shall be entitled to hold land. The said section further provides:- (b) it shall not be lawful for,- (i) an educational, religious or charitable institution or society or trust, other than an institution or society or trust referred to in sub-section (7) of section 63, capable of holding property; (ii) a company; (iii) an association or other body of individuals not being a joint family, whether incorporated or not; or (iv) a co-operative society other than a co- operative farm, to hold any land. (2) Every such institution, society, trust, company, association, body or co-operative society,— (a) which holds lands on the date of commencement of the Amendment Act and which is disentitled to hold lands under sub-section (1), shall, within ninety days from the said date, furnish to the Tahsildar within whose jurisdiction the greater part of such land is situated a declaration containing the particulars of such land and such other particulars as may prescribed; and (b) which acquires such land after the said date shall also furnish a similar declaration within the prescribed period. (3) The Tahsildar shall, on receipt of the declaration under sub-section (2) and after such enquiry as may be prescribed, send a statement containing the prescribed particulars relating to such land to the Deputy Commissioner who shall, by notification, declare that such land shall vest in the State Government free from all encumbrances and take possession thereof in the prescribed manner. (4) In respect of the land vesting in the State Government under this section an amount as specified in section 72 shall be paid. Explanation.—For purposes of this section it shall be presumed that a land is held by an institution, trust, company, association or body where it is held by an individual on its behalf. x x x x x 104. Plantations.— The provisions of section 38, section 63 other than sub-section (9) thereof, sections 64, 79-A, 79-B and 80, shall not apply to plantations. Explanation.—In this section Plantation means land used by a person principally for the cultivation of plantation crop and includes,— (i) any land used by such person for any purpose ancillary to the cultivation of such crop or for preparation of the same for the market; and (ii) agricultural land interspersed within the boundaries of the area cultivated with such crop by such person, not exceeding such extent as may be determined by the prescribed authority as necessary for the protection and efficient management of such cultivation. 12. On construction of different provisions of the 1961 Act, we find that in the event the Tribunals finding is correct that the major part of the land which the declarants have claimed to be plantation fits that description, then the prohibition imposed on holding of land by entities referred to in Sub-section 1 of Section 79-B would not apply, having regard to the provisions of Section 104 of the Act. But there is a factor which has not been clarified before us in course of hearing, which in our opinion would have had material impact on the rival claims. As per the deed of sale, the partnership firm had obtained forest area of 3485.83 acres. In the event this area is not held to be under plantation, then the land which has been found by the Tribunal to be beyond ceiling limit would be much beyond than what has been computed. Another issue which also appears to have not had been considered by the Tribunal and also the High Court is that the estate was originally purchased by registered firm. It has not been explained by the declarants as to how the estate of the firm devolved upon its partners. No legal instrument has been brought to our notice through which property of the firm became the partners individual property. This issue is of significance because under Section 79(1)(b)(iii), there is prohibition on an association or other body of individuals not being a joint family, whether incorporated or not in holding land. The latter factor, however, would assume importance in the event the land claimed to be under plantation is found to be incorrect as originally major part of the estate was forest land. But to determine this question, we do not think proper examination of factual situation had been undertaken. On this aspect of the dispute, States plea is that the spot inspection took place in a single day and having regard to the area involved, such an exercise was impossible. If this contention is examined in isolation, we would have had accepted the view of the High Court that at this stage there ought not to be any factual enquiry. But considering the fact that land purchased included large tract of forest land, we are of the view that the scrutiny on the part of the authorities in the case of the declarants land was inadequate. This is one of the main grounds on which the present appeal is founded. There is reference to a Writ Petition in the paper book filed by the original declarants with prayer for felling of trees on the subject-land. The petition was registered as Writ Petition No.42774 of 1982. In that proceeding an interim order was passed permitting felling of trees by the petitioners as per a list subject to the provisions of the Karnataka Preservation of Trees Act, 1976. After obtaining the interim order permitting such felling of trees, however, the writ petition was dismissed as not pressed at the instance of the declarants by an order passed on 7 th November, 1990. The said writ petition was dismissed as withdrawn after obtaining interim order, we do not think that the result of that writ petition would have any bearing on the present appeal.
### Response:
1
### Explanation:
From the judgment of the Review Court, we find that point was taken by the State that the estate was purchased by a firm but declaration of holding under Section 66 was given by three individuals. But the Review Court did not find any flaw in such exercise being undertaken by the individual declarants. On the other hand, the declaration filed under Section 66 of the 1961 Act was found to be valid for the reason that it was not the firm who had filed the declaration but three persons in their individual capacity12. On construction of different provisions of the 1961 Act, we find that in the event the Tribunals finding is correct that the major part of the land which the declarants have claimed to be plantation fits that description, then the prohibition imposed on holding of land by entities referred to in Sub-section 1 of Section 79-B would not apply, having regard to the provisions of Section 104 of the Act. But there is a factor which has not been clarified before us in course of hearing, which in our opinion would have had material impact on the rival claims. As per the deed of sale, the partnership firm had obtained forest area of 3485.83 acres. In the event this area is not held to be under plantation, then the land which has been found by the Tribunal to be beyond ceiling limit would be much beyond than what has been computed. Another issue which also appears to have not had been considered by the Tribunal and also the High Court is that the estate was originally purchased by registered firm. It has not been explained by the declarants as to how the estate of the firm devolved upon its partners. No legal instrument has been brought to our notice through which property of the firm became the partners individual property. This issue is of significance because under Section 79(1)(b)(iii), there is prohibition on an association or other body of individuals not being a joint family, whether incorporated or not in holding land. The latter factor, however, would assume importance in the event the land claimed to be under plantation is found to be incorrect as originally major part of the estate was forest land. But to determine this question, we do not think proper examination of factual situation had been undertaken. On this aspect of the dispute, States plea is that the spot inspection took place in a single day and having regard to the area involved, such an exercise was impossible. If this contention is examined in isolation, we would have had accepted the view of the High Court that at this stage there ought not to be any factual enquiry. But considering the fact that land purchased included large tract of forest land, we are of the view that the scrutiny on the part of the authorities in the case of the declarants land was inadequate. This is one of the main grounds on which the present appeal is founded. There is reference to a Writ Petition in the paper book filed by the original declarants with prayer for felling of trees on the subject-land. The petition was registered as Writ Petition No.42774 of 1982. In that proceeding an interim order was passed permitting felling of trees by the petitioners as per a list subject to the provisions of the Karnataka Preservation of Trees Act, 1976. After obtaining the interim order permitting such felling of trees, however, the writ petition was dismissed as not pressed at the instance of the declarants by an order passed on 7 th November, 1990. The said writ petition was dismissed as withdrawn after obtaining interim order, we do not think that the result of that writ petition would have any bearing on the present appeal.
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Addanki Tiruvenkata Thata Desika Charyulu Vs. State Of Andhra Pradesh & Anr | strictly open to the aggrieved party ........ The aggrieved party will have a right of suit as he would have a good cause of action when proceedings are taken under colour of an Act which does not apply to the facts of the case."This correctly expresses the distinction between the two related questions and the effect of the decision on the preliminary condition.29. In the case before us, it has been found in dealing with the applicability of the Rent Reduction Act, that the shrotriem was an "inam village". The result therefore would be that the preliminary condition would have been satisfied and the Settlement Officer was therefore competent to record a finding that the "inam village" of East Thakkellapadu was an "inam estate" i.e., that "it was a village of which the land revenue without the Kudivaram had been granted in inam to a person not owning the Kudivaram thereof."30. As we have pointed out earlier, the Settlement Officer held an inquiry and by an order dated February 20, 1950 he held the shrotriem to be an "inam estate" within the meaning of the Abolition Act. Thereafter the plaintiff the appellants predecessor filed the appeal to the Tribunal and that appeal was dismissed on June 25, 1951. It was one of the orders that was challenged before the High Court in the writ petition and, as already seen, the appellant was referred to a civil suit for the adjudication of his rights. In the civil suit that he filed the appellant challenged the proceedings before the Settlement Officer and the Tribunal and the dismissal of his appeal by the latter on two grounds : (1) that even if the original grant of the shrotriem comprised the entire village, still the same was not an "inam estate" within the Abolition Act, because the same was not an "estate" prior to the amendment effected in 1936 to the Madras Estates Land Act 1 of 1908. In the definition, as it then stood, as already seen a grant was brought within the terms of the definition of an estate only where the grant was of the land revenue or of the melvarma alone "to a person not owning the Kudivaram thereof." It was this definition that was altered by an amendment effected in 1936. It was submitted by the appellant that the grant in the present case was of the entire interest in the land and not of the melvaram alone and that such an inam, even though it be of an entire village, was not brought within the provisions of the Abolition Act. (2) The decision of the Tribunal dismissing the appeal was impugned as incompetent for the reason that whereas S. 8 provided for a tribunal consisting of three members, in the present case the appeal was heard and disposed of only by two. The Madras High Court had held in Kama Umi Isa Ammal v. Ramakadamban, 1952-2 Mad LJ 667 : (AIR 1953 Mad 129 ) that such a decision of the tribunal was null and void and therefore would not amount to a dismissal of the appeal by the tribunal. So far as the second point was concerned, the learned Judges accepted as correct the view of the Madras High Court in the decision referred to and held that the order of the tribunal dismissing the appellants appeal was a nullity, but the learned Judges further held that this would not automatically nullify or vacate the determination and decision of the Settlement Officer under S. 9 and his finding that the village in suit was an "inam estate" but that it had the effect merely of leaving the appeal where it stood at the time it was purported to be dismissed by the two members who could not function as the Tribunal. In other words, the result of applying the rule enunciated by the Madras High Court was that there were a valid order of the Settlement Officer followed by an appeal which had been filed to the Tribunal but which had not yet been disposed of validly by the Tribunal. Thus the effect in law of the void order of the Tribunal was held to be that the appeal was still pending before the tribunal. On this conclusion which is obviously correct the appellant could get no. benefit, so far as the present suit was concerned, by the invalid dismissal of his appeal, for invoking the jurisdiction of the civil Court to determine the question whether the "inam village" was an "inam estate" though it would be competent to him to further prosecute the appeal, if he considered that that would serve his interests.31. As regards the first point that is the case of the appellant on the merits, the learned Judges held that the jurisdiction of the civil court was impliedly excluded by the provision in the Abolition Act constituting the Settlement Officer and the Tribunal as the authorities to decide the issue and vesting them with the requisite jurisdiction and providing for the procedure to be followed by them in that regard. We have already expressed our agreement with these conclusions of the High Court. In this view we intimated to learned Counsel for the appellant that it would not be open to him to invite our attention to the evidence which was led before the Settlement Officer for proving that the original grant was of both the warams and that the Settlement Officer and the Subordinate Judge who tried the suit erred in recording that the shrotriem grant of the village was of the melvaram alone.32. Learned Counsel for the State pointed out that the legislature of Andhra Pradesh has in 1956 and 1957, effected amendments to the Abolition Act which would render any arguments about the merits of the original grant being of both the warms, wholly academic but we have not thought it necessary to refer to it as this is hardly relevant for the points arising for disposal in the appeal. | 0[ds]7. It would be convenient to take up first the question whether the Shrotriem is an estate within the scope of the Rent reduction Act and this would turn upon the provisions of that enactment. The preamble to the Rent Reduction Act specifies, inter alia, that it was an Act to provide for the reduction of rents payable by ryots in estates governed by the Madras Estates Land Act, 1908, approximately to the level of the assessments levied on lands in ryotwari areas in the neighbourhood and for the collection of such rents exclusively by the State Government. In line with it S. 1 (2) of the Act makes provision for the application on the enactment to all "estates as defined in S. 3, cl. (2), of the Madras Estates Land Act, 1908. Its second Section empowers the State Government to appoint a special officer for any estate or estates for the purpose of recommending fair and equitable rates of rent for the ryoti lands in such estate or "estates. After the Special Officer completes the enquiry he determines in accordance with the prescribed procedure the fair and equitable rates of rent payable by the ryot and fixes the amount of reduction which the rates theretofore prevailing in the estate should undergo. The Government thereafter considers the report of the officer and publishes in the official Gazette a notification determining the rates of rent which should prevail in particular estates and S. 3(2) of the Rent Reduction Act renders the rates so notified final and binding on the parties.8. In the case before us, the above procedure was followed and the State Government published a notification on May 2, 1950 under S. 3(2) of the Rent Reduction Act determining the rates of rent payable by ryots in the Shrotriem of East Thakkellapadu treating it as an estate.The remarks of the Deputy Collector extracted earlier tend strongly in favour of the view that the grant was of a named village of Thakkellapadu. Learned Counsel drew our attention to the heading in the Register of Inams in the village (Ex. A2) and pointed out that it purported to be a Register of Inams in the village, but obviously no. assistance can be derived from the use of the preposition "in as it is a well-known form of heading which is equally used even where an entire village is the subject of the grant (Vide e. g. the observations in District Board, Tanjore v. Noor Md., 1952-2 Mad LJ 586 at p. 592 : (AIR 1953 SC 446 at p.have already pointed out that in Column 3 of Ex. A2 both the dry as well as the Poramboke of a total extent of 686, 97 acres as set out in Columns 4 and 5 is shown as the extent of the inam. That the entirety of the dry lands in the village was granted was not disputed, but the argument was that the Poramboke was not. However, in the face of these entries in Columns 3 and 4 of the Inam Fair Register, it appears to us idle to contend that the Poramboke was not granted to the shrotriemdar but was reserved by the grantor. Even in cases where the words deduct poramboke were used, it has been held that these words were used not for the purpose of excluding Poramboke from the grant but merely for indicating that it was being deducted for ascertaining the assessment, since waste land is not assessed (vide Krishnaswami v. Perumal Goundan, AIR 1950 PC 105 at p. 108). The case before us is a fortiori because Column 3 shows that the Poramboke is comprised in theregard to these two minor inams it would be seen from the remarks of the Deputy Collector we have extracted, that the two inams which are called Desamadam were of immemorial origin and that the Shrotriemdars admitted in 1862 that they were older than the shrotriem. It is also stated that jodi was payable by them to the Shrotriemdars, and it goes on to say that this might have been imposed by the shrotriemdars themselves. These recitals would indicate that either these minor inams came into existence at a time anterior to the grant of the shrotriem but that the shrotriemdars extracted payment of jodi from them, or that they were the creations of the shrotriemdars themselves. In either event their existence would not detract from the shrotriem being an "estate within S. 3(2)(d) read with Explanation (1). On the facts therefore it is clear that there has been no. reservation of any land in the village at the time of the grant of the named village to the shrotriemdars but the entire village, subject to the small extent of the two minor inams which had already been created was granted as shrotriem. Therefore, the existence of these minor inams which are of an earlier date than the shrotriem grant does not indicate any reservation of lands by the grantor and does not therefore militate against the shrotriem grant constituting an inam within S. 3(2)(d) of the Estates Landwe have stated already, viz., that the entirety of the poramboke of 101.35 acres was the subject of grant, along with the dry land of the extent of 585.62 acres would be sufficient to dispose of this contention. Apart however from the entry in Column 3 read with Columns 4 and 5 on which we have based our conclusion, we might point out that it is unthinkable that the grantor while granting the dry lands in the village, reserved for himself for his enjoyment or for a grant on a future occasion the saline land wholly unfit for cultivation. We consider therefore that there is no. substance in this last contention either.17. It would therefore follow that the learned Judges of the High Court were right in holding that the notification by Government under the Rent Reduction Act wasagree that the judgment of the learned trial Judge on this point about the shrotriem being an inam estate is not very satisfactory and that if the Civil Court had jurisdiction to decide the matter, one of the two courses suggested by learned counsel should have been followed by the High Court. We are, however, of the opinion that the learned Judges were right in their view that the jurisdiction of the Civil Courts was barred by reason of the provisions of the Abolition Act to which we shall makewas urged that there was no. bar where the matter rested merely with the decision of a Settlement Officer and support was sought for this contention from the circumstance that S. 9(4) (c) in terms imparted finality solely to the orders of the Tribunal, and this could not be read so as to make the same provision applicable to the orders of the Settlement Officer. This argument entirely lacks substance. Clause (c) has to be read in conjunction with the positive provision in sub-sec. (6) with which it is closely related and under this the decision of the Tribunal is declared to be binding on all persons interested, and a precisely similar effect is predicated as regards the decisions of the Settlement Officer where no. appeal has been filed from his decision. The act thus never meant to draw any distinction between orders of Settlement Officers which were affirmed by Tribunals and other orders which by reason of their not being appealed against within the time prescribed, attained finality. This apart, if the submission of the appellant were correct, it would mean that when a Settlement Officer rendered his decision on the matter set out in S. 9(1), the aggrieved party had a right either to appeal to the Tribunal within the time prescribed or challenge it by a suit in Civil Court within the period of limitation which might be applicable to such suits under the provisions of the Indian Limitation Act. If this were so, as there might conceivably be more than one party having a similar interest and raising a similar contention who might all feel aggrieved by the decision of a Settlement Officer, it would mean that one party might file a suit, while another resorted to the Tribunal by way of appeal. This result would be sufficient to demonstrate the impossibility of accepting the construction for which the appellant contends. The very provision setting up an hierarchy of judicial tribunals for the determination of the question on which the applicability of the Act depends, is sufficient in most cases for inferring that the jurisdiction of the Civil Courts to try the same matter is barred. "In addition we have the provision in S. 9(4)(c) read with S. 9(6) to which we have adverted. In these circumstances, we have no. hesitation in holding that to the extent of the question stated in Section 9(1), the jurisdiction of the Settlement Officer and of the Tribunal are exclusive and that the Civil Courts are barred from trying or retrying the same question. We should, however, hasten to add that this exclusion of jurisdiction would be subject to two limitations. First is the reservation made by the Lord Thankerton in Secretary of State v. Mask and Co., 67 Ind App 222 at p. 236 : (AIR 1940 PC 105 at p. 110) where, after holding that the provisions of the Sea Customs Act setting up a special machinery for the adjudication of the correct duty leviable under the Act barred recourse to the Civil Courts to question the correctness of the decisions of the Authorities acting under that enactment added :"It is also well settled that even if jurisdiction is excluded, the civil courts have jurisdiction to examine into cases where the provisions of the Act have not been complied with, or the statutory tribunal has not acted in conformity with the fundamental principles of judicialis only necessary to add that no. question envisaged by Lord Thankerton or referred to by Gajendragadkar, J. is raised in the appeal before us and it is therefore unnecessary for us to examine, in the present appeal either, the precise limits of this exception.27. The second is as regards the exact extent to which the powers of statutory tribunals are exclusive, Lord Esher formulated the point thus in The Queen v. The Commissioner for Special purposes of the Income Tax, (1888) 21 QBD 313 at pp. 319-320 :"When an inferior court or tribunal or body, which has to exercise the power of deciding facts, is first established by Act of Parliament, the legislature has to consider what powers it will give that tribunal or body. It may in effect say that, if a certain state of facts exists and is shown to such tribunal or body before it proceeds to do certain things, it shall have jurisdiction to do such things, but not otherwise. There it is not for them conclusively to decide whether that state of facts exists, and, if they exercise the jurisdiction without its existence, what they do may be questioned, and it will be held that they have acted without jurisdiction. But there is another state of things which may exist. The legislature may intrust the tribunal or body with a jurisdiction, which includes the jurisdiction to determine whether the preliminary state of facts exists as well as the jurisdiction, on finding that it does exist, to proceed further or do something more. When the legislature are establishing such a tribunal or body with limited jurisdiction, they also have to consider, whatever jurisdiction they give them, whether there shall be any appeal from their decision, for otherwise there will be none. In the second of the two cases I have mentioned it is an erroneous application of the formula to say that the tribunal cannot give themselves jurisdiction by wrongly deciding certain facts to exist, because the legislature gave them jurisdiction to determine all the facts, including the existence of the preliminary facts on which the further exercise of their jurisdiction depends, and if they were given jurisdiction so to decide, without any appeal being given, there is no. appeal from such exercise of their jurisdiction."It is manifest that the answer to the question as to whether any particular case falls under the first or the second of the above categories would depend on the purpose of the statute and its general scheme, taken in conjunction with the scope of the enquiry entrusted to the tribunal set up and other relevant factors. In the present case, this is determined by the terms of S. 9(1) which prescribes and delimits the functions of the Settlement Officer and thus in effect, of the appellate forum. This sub-section enjoins on or empowers the Settlement Officer to determine whether "any inam village" is "an inam estate or not" and the object of the Act is to "abolish" only "inam estates". This determination involves two distinct matters in view of the circumstances that every "inam village" is not necessarily "and inam estate" viz., (1) whether a particular property is or is not an "inam village" and (2) whether such a village is "an inam estate" within the definition in S. 2(7). The first of these questions whether the grant is of an "inam village" is referred to in S. 9(1) itself as some extrinsic fact which must pre-exist before the Settlement Officer can embark on the enquiry contemplated by that provision and the Abolition Act as it stood at the date relevant to this appeal, makes no. provision for this being the subject of enquiry by the Settlement Officer.28. Where therefore persons appearing in opposition to the proceedings initiated before the Settlement Officer under S. 9 question the character of the property as not falling within the description of an "inam village", he has of necessity to decide the issue, for until he holds that this condition is satisfied, he cannot enter on the further enquiry which is the one which by S. 9(1) of the Act he is directed to conduct. On the terms of S. 9(1) the property in question being an "inam village" is assumed as a fact on the existence of which the competency of the Settlement Officer to determine the matter within his jurisdiction rests and as there are no. words in the statute empowering him to decide finally the former, he cannot confer jurisdiction on himself by a wrong decision on this preliminary condition to his jurisdiction. Any determination by him of this question, therefore, is (subject to the result of an appeal to the Tribunal) binding on the parties only for the purposes of the proceedings under the Act, but no. further. The correctness of that finding may be questioned in any subsequent legal proceeding in the ordinary courts of the land where the question might arise for decision. The determination by him of the second question whether the "inam village" is an inam estate is, however, within his exclusive jurisdiction and in regard to it the jurisdiction of the Civil Courts is clearly barred.In the case before us, it has been found in dealing with the applicability of the Rent Reduction Act, that the shrotriem was an "inam village". The result therefore would be that the preliminary condition would have been satisfied and the Settlement Officer was therefore competent to record a finding that the "inam village" of East Thakkellapadu was an "inam estate" i.e., that "it was a village of which the land revenue without the Kudivaram had been granted in inam to a person not owning the Kudivaram thereof."30. As we have pointed out earlier, the Settlement Officer held an inquiry and by an order dated February 20, 1950 he held the shrotriem to be an "inam estate" within the meaning of the Abolition Act. Thereafter the plaintiff the appellants predecessor filed the appeal to the Tribunal and that appeal was dismissed on June 25, 1951. It was one of the orders that was challenged before the High Court in the writ petition and, as already seen, the appellant was referred to a civil suit for the adjudication of his rights. In the civil suit that he filed the appellant challenged the proceedings before the Settlement Officer and the Tribunal and the dismissal of his appeal by the latter on two grounds : (1) that even if the original grant of the shrotriem comprised the entire village, still the same was not an "inam estate" within the Abolition Act, because the same was not an "estate" prior to the amendment effected in 1936 to the Madras Estates Land Act 1 of 1908. In the definition, as it then stood, as already seen a grant was brought within the terms of the definition of an estate only where the grant was of the land revenue or of the melvarma alone "to a person not owning the Kudivaram thereof." It was this definition that was altered by an amendment effected in 1936. It was submitted by the appellant that the grant in the present case was of the entire interest in the land and not of the melvaram alone and that such an inam, even though it be of an entire village, was not brought within the provisions of the Abolition Act. (2) The decision of the Tribunal dismissing the appeal was impugned as incompetent for the reason that whereas S. 8 provided for a tribunal consisting of three members, in the present case the appeal was heard and disposed of only by two. The Madras High Court had held in Kama Umi Isa Ammal v. Ramakadamban, 1952-2 Mad LJ 667 : (AIR 1953 Mad 129 ) that such a decision of the tribunal was null and void and therefore would not amount to a dismissal of the appeal by the tribunal. So far as the second point was concerned, the learned Judges accepted as correct the view of the Madras High Court in the decision referred to and held that the order of the tribunal dismissing the appellants appeal was a nullity, but the learned Judges further held that this would not automatically nullify or vacate the determination and decision of the Settlement Officer under S. 9 and his finding that the village in suit was an "inam estate" but that it had the effect merely of leaving the appeal where it stood at the time it was purported to be dismissed by the two members who could not function as the Tribunal. In other words, the result of applying the rule enunciated by the Madras High Court was that there were a valid order of the Settlement Officer followed by an appeal which had been filed to the Tribunal but which had not yet been disposed of validly by the Tribunal. Thus the effect in law of the void order of the Tribunal was held to be that the appeal was still pending before the tribunal. On this conclusion which is obviously correct the appellant could get no. benefit, so far as the present suit was concerned, by the invalid dismissal of his appeal, for invoking the jurisdiction of the civil Court to determine the question whether the "inam village" was an "inam estate" though it would be competent to him to further prosecute the appeal, if he considered that that would serve his interests.31. As regards the first point that is the case of the appellant on the merits, the learned Judges held that the jurisdiction of the civil court was impliedly excluded by the provision in the Abolition Act constituting the Settlement Officer and the Tribunal as the authorities to decide the issue and vesting them with the requisite jurisdiction and providing for the procedure to be followed by them in that regard. We have already expressed our agreement with these conclusions of the High Court. In this view we intimated to learned Counsel for the appellant that it would not be open to him to invite our attention to the evidence which was led before the Settlement Officer for proving that the original grant was of both the warams and that the Settlement Officer and the Subordinate Judge who tried the suit erred in recording that the shrotriem grant of the village was of the melvaram alone.Learned Counsel for the State pointed out that the legislature of Andhra Pradesh has in 1956 and 1957, effected amendments to the Abolition Act which would render any arguments about the merits of the original grant being of both the warms, wholly academicbut we have not thought it necessary to refer to it as this is hardly relevant for the points arising for disposal in the appeal. | 0 | 9,058 | 3,786 | ### Instruction:
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strictly open to the aggrieved party ........ The aggrieved party will have a right of suit as he would have a good cause of action when proceedings are taken under colour of an Act which does not apply to the facts of the case."This correctly expresses the distinction between the two related questions and the effect of the decision on the preliminary condition.29. In the case before us, it has been found in dealing with the applicability of the Rent Reduction Act, that the shrotriem was an "inam village". The result therefore would be that the preliminary condition would have been satisfied and the Settlement Officer was therefore competent to record a finding that the "inam village" of East Thakkellapadu was an "inam estate" i.e., that "it was a village of which the land revenue without the Kudivaram had been granted in inam to a person not owning the Kudivaram thereof."30. As we have pointed out earlier, the Settlement Officer held an inquiry and by an order dated February 20, 1950 he held the shrotriem to be an "inam estate" within the meaning of the Abolition Act. Thereafter the plaintiff the appellants predecessor filed the appeal to the Tribunal and that appeal was dismissed on June 25, 1951. It was one of the orders that was challenged before the High Court in the writ petition and, as already seen, the appellant was referred to a civil suit for the adjudication of his rights. In the civil suit that he filed the appellant challenged the proceedings before the Settlement Officer and the Tribunal and the dismissal of his appeal by the latter on two grounds : (1) that even if the original grant of the shrotriem comprised the entire village, still the same was not an "inam estate" within the Abolition Act, because the same was not an "estate" prior to the amendment effected in 1936 to the Madras Estates Land Act 1 of 1908. In the definition, as it then stood, as already seen a grant was brought within the terms of the definition of an estate only where the grant was of the land revenue or of the melvarma alone "to a person not owning the Kudivaram thereof." It was this definition that was altered by an amendment effected in 1936. It was submitted by the appellant that the grant in the present case was of the entire interest in the land and not of the melvaram alone and that such an inam, even though it be of an entire village, was not brought within the provisions of the Abolition Act. (2) The decision of the Tribunal dismissing the appeal was impugned as incompetent for the reason that whereas S. 8 provided for a tribunal consisting of three members, in the present case the appeal was heard and disposed of only by two. The Madras High Court had held in Kama Umi Isa Ammal v. Ramakadamban, 1952-2 Mad LJ 667 : (AIR 1953 Mad 129 ) that such a decision of the tribunal was null and void and therefore would not amount to a dismissal of the appeal by the tribunal. So far as the second point was concerned, the learned Judges accepted as correct the view of the Madras High Court in the decision referred to and held that the order of the tribunal dismissing the appellants appeal was a nullity, but the learned Judges further held that this would not automatically nullify or vacate the determination and decision of the Settlement Officer under S. 9 and his finding that the village in suit was an "inam estate" but that it had the effect merely of leaving the appeal where it stood at the time it was purported to be dismissed by the two members who could not function as the Tribunal. In other words, the result of applying the rule enunciated by the Madras High Court was that there were a valid order of the Settlement Officer followed by an appeal which had been filed to the Tribunal but which had not yet been disposed of validly by the Tribunal. Thus the effect in law of the void order of the Tribunal was held to be that the appeal was still pending before the tribunal. On this conclusion which is obviously correct the appellant could get no. benefit, so far as the present suit was concerned, by the invalid dismissal of his appeal, for invoking the jurisdiction of the civil Court to determine the question whether the "inam village" was an "inam estate" though it would be competent to him to further prosecute the appeal, if he considered that that would serve his interests.31. As regards the first point that is the case of the appellant on the merits, the learned Judges held that the jurisdiction of the civil court was impliedly excluded by the provision in the Abolition Act constituting the Settlement Officer and the Tribunal as the authorities to decide the issue and vesting them with the requisite jurisdiction and providing for the procedure to be followed by them in that regard. We have already expressed our agreement with these conclusions of the High Court. In this view we intimated to learned Counsel for the appellant that it would not be open to him to invite our attention to the evidence which was led before the Settlement Officer for proving that the original grant was of both the warams and that the Settlement Officer and the Subordinate Judge who tried the suit erred in recording that the shrotriem grant of the village was of the melvaram alone.32. Learned Counsel for the State pointed out that the legislature of Andhra Pradesh has in 1956 and 1957, effected amendments to the Abolition Act which would render any arguments about the merits of the original grant being of both the warms, wholly academic but we have not thought it necessary to refer to it as this is hardly relevant for the points arising for disposal in the appeal.
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no. further. The correctness of that finding may be questioned in any subsequent legal proceeding in the ordinary courts of the land where the question might arise for decision. The determination by him of the second question whether the "inam village" is an inam estate is, however, within his exclusive jurisdiction and in regard to it the jurisdiction of the Civil Courts is clearly barred.In the case before us, it has been found in dealing with the applicability of the Rent Reduction Act, that the shrotriem was an "inam village". The result therefore would be that the preliminary condition would have been satisfied and the Settlement Officer was therefore competent to record a finding that the "inam village" of East Thakkellapadu was an "inam estate" i.e., that "it was a village of which the land revenue without the Kudivaram had been granted in inam to a person not owning the Kudivaram thereof."30. As we have pointed out earlier, the Settlement Officer held an inquiry and by an order dated February 20, 1950 he held the shrotriem to be an "inam estate" within the meaning of the Abolition Act. Thereafter the plaintiff the appellants predecessor filed the appeal to the Tribunal and that appeal was dismissed on June 25, 1951. It was one of the orders that was challenged before the High Court in the writ petition and, as already seen, the appellant was referred to a civil suit for the adjudication of his rights. In the civil suit that he filed the appellant challenged the proceedings before the Settlement Officer and the Tribunal and the dismissal of his appeal by the latter on two grounds : (1) that even if the original grant of the shrotriem comprised the entire village, still the same was not an "inam estate" within the Abolition Act, because the same was not an "estate" prior to the amendment effected in 1936 to the Madras Estates Land Act 1 of 1908. In the definition, as it then stood, as already seen a grant was brought within the terms of the definition of an estate only where the grant was of the land revenue or of the melvarma alone "to a person not owning the Kudivaram thereof." It was this definition that was altered by an amendment effected in 1936. It was submitted by the appellant that the grant in the present case was of the entire interest in the land and not of the melvaram alone and that such an inam, even though it be of an entire village, was not brought within the provisions of the Abolition Act. (2) The decision of the Tribunal dismissing the appeal was impugned as incompetent for the reason that whereas S. 8 provided for a tribunal consisting of three members, in the present case the appeal was heard and disposed of only by two. The Madras High Court had held in Kama Umi Isa Ammal v. Ramakadamban, 1952-2 Mad LJ 667 : (AIR 1953 Mad 129 ) that such a decision of the tribunal was null and void and therefore would not amount to a dismissal of the appeal by the tribunal. So far as the second point was concerned, the learned Judges accepted as correct the view of the Madras High Court in the decision referred to and held that the order of the tribunal dismissing the appellants appeal was a nullity, but the learned Judges further held that this would not automatically nullify or vacate the determination and decision of the Settlement Officer under S. 9 and his finding that the village in suit was an "inam estate" but that it had the effect merely of leaving the appeal where it stood at the time it was purported to be dismissed by the two members who could not function as the Tribunal. In other words, the result of applying the rule enunciated by the Madras High Court was that there were a valid order of the Settlement Officer followed by an appeal which had been filed to the Tribunal but which had not yet been disposed of validly by the Tribunal. Thus the effect in law of the void order of the Tribunal was held to be that the appeal was still pending before the tribunal. On this conclusion which is obviously correct the appellant could get no. benefit, so far as the present suit was concerned, by the invalid dismissal of his appeal, for invoking the jurisdiction of the civil Court to determine the question whether the "inam village" was an "inam estate" though it would be competent to him to further prosecute the appeal, if he considered that that would serve his interests.31. As regards the first point that is the case of the appellant on the merits, the learned Judges held that the jurisdiction of the civil court was impliedly excluded by the provision in the Abolition Act constituting the Settlement Officer and the Tribunal as the authorities to decide the issue and vesting them with the requisite jurisdiction and providing for the procedure to be followed by them in that regard. We have already expressed our agreement with these conclusions of the High Court. In this view we intimated to learned Counsel for the appellant that it would not be open to him to invite our attention to the evidence which was led before the Settlement Officer for proving that the original grant was of both the warams and that the Settlement Officer and the Subordinate Judge who tried the suit erred in recording that the shrotriem grant of the village was of the melvaram alone.Learned Counsel for the State pointed out that the legislature of Andhra Pradesh has in 1956 and 1957, effected amendments to the Abolition Act which would render any arguments about the merits of the original grant being of both the warms, wholly academicbut we have not thought it necessary to refer to it as this is hardly relevant for the points arising for disposal in the appeal.
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Kundla Press And Oil Mill Pvt. Ltd Vs. State Of Gujarat | in the year 1982.4. It appears that, in the meanwhile, the Savarkundla Municipality issued two notices to the appellant company in the year 1976 asking the appellant company to handover the land to the Municipality. A dispute arose since the company did not handover the possession of the leased property. Thereafter, this dispute was referred to the Arbitration. The Arbitrator made theaward in favour of the company on 11.03.1978. The Arbitrator held as follows:"....The Company can carry out any sort of construction it may deem fit and for any purpose it may find useful for. And the Municipality is liable to grant permission for construction without laying any condition. In this regard, as stated above, the Company has the right to renew the Deed of Lease and so the only question that arises is that whether the Company can carry out construction on the aforesaid land or not. This land has been given this land for its business (sic). Therefore the Company can carry out construction over this land for its business........"5. The operative portion of the Award reads as follows:"3. The Company can carry out on the land construction which it deems proper and for such use as it deems proper. Since the Municipality is an autonomous body and the Rent Act is not applicable to the land owned by a local autonomous institution. In case of such properties the Rights of Tenants and Property Owners are as per the provisions of the Transfer of Properties Act. The Municipality is responsible to grant the permission for construction as per the permission of construction granted by the Company."The Arbitrator held that the appellant company was entitled to renewal of the lease deed and was also entitled to make construction on the land in question connected with its business. This Award was made Rule of the Court on 26.04.1978.6. Though the Award was passed in favour of the company and the Decree in terms of the Award had also been passed, the Collector, Savarkundla cancelled the lease deed on the ground that the appellant was trying to raise construction on the land in question. Thereafter, the appellant filed a Writ Petition being Special Civil Application No. 845 of 1978. This Writ Petition was allowed and the order of the Collector was set aside. Thereafter also, no lease deed was executed since the Municipality did not have the power to execute the lease deed for more than 10 years. Finally, on 23.10.1991, the Government of Gujarat issued an order that the lease deed may be renewed for a further term of 30 years from 01.04.1982. In actual fact, this lease deed was only executed on 12.04.2007. However, this lease deed was made effective for a period of 30 years from 01.04.1982 till 31.03.2012.7. Shri Ashok Desai, learned senior counsel appearing for the appellant, submits that in view of the conditions quoted hereinabove, the appellant is entitled to renewal of the lease deed as a matter of right. He further submits since the Municipality has permitted the appellant to construct and raise buildings on the land in question the appellant is entitled to renewal of thelease. He has candidly submitted that the Municipality may charge enhanced lease rent.8. On the other hand, Shri Preetesh Kapoor, learned counsel appearing for respondents submits that there can be no lease in perpetuity in favour of any person. He submits that the State Government had given permission to the Municipality to lease out land only for a period of 30 years in terms of Section 65 (2) of the Gujarat Municipalities Act, 1963 which reads as follows:"65. Powers of municipality to sell, lease, and contract.-xxx xxx xxx(2)In the case of every lease or sale of land under sub-section (1) of section 146 and of a lease of immovable property for a term exceeding ten years and of every sale or other transfer of such immovable property, the market value of which exceeds one lakh of rupees, the previous permission of the State Government is required:Provided that in the case of a lease or sale of land under sub-section (1) of section 146 no such permission shall be granted if such land forms a street or part of a street which has been declared to be a public street under section 148."9. A bare perusal of the aforesaid section makes it very clear that the Municipality has no authority to grant a lease for a period exceeding 10 years without prior permission of the StateGovernment. In the present case, the State Government had only granted permission to lease the land till the year 2012. Therefore, the appellant has no inherent right to claim that fresh lease be granted in its favour.10. Another factor which has to be considered is that the original lease was granted for running an oil mill and as on date admittedly there is no oil mill situated on the land. The leased property is a public property leased out at a very meagre rent. It cannot be utilised for a purpose other than the purpose for which it was leased out. True it is that the appellant may have been permitted to raise construction on the leased land but it is obvious that the construction to be raised should have connection with the original business of the company i.e. running an oil mill. The appellant has raised a huge commercial complex earning crores of rupees but is paying only a few hundred rupees to the Municipality.11. We are of the considered view that the appellant is not entitled to claim that lease deed must be renewed in his favour. The High Court of Gujarat was perfectly justified in holding that the appellant cannot claim that he is entitled to renewal of thelease deed as a matter of right. The finding of the High Court that the appellant is earning huge profits by way of rent is not denied. It has also been stated that the land is required by the Municipality for educational purposes. | 0[ds]9. A bare perusal of the aforesaid section makes it very clear that the Municipality has no authority to grant a lease for a period exceeding 10 years without prior permission of the StateGovernment. In the present case, the State Government had only granted permission to lease the land till the year 2012. Therefore, the appellant has no inherent right to claim that fresh lease be granted in its favour.10. Another factor which has to be considered is that the original lease was granted for running an oil mill and as on date admittedly there is no oil mill situated on the land. The leased property is a public property leased out at a very meagre rent. It cannot be utilised for a purpose other than the purpose for which it was leased out. True it is that the appellant may have been permitted to raise construction on the leased land but it is obvious that the construction to be raised should have connection with the original business of the company i.e. running an oil mill. The appellant has raised a huge commercial complex earning crores of rupees but is paying only a few hundred rupees to the Municipality.11. We are of the considered view that the appellant is not entitled to claim that lease deed must be renewed in his favour. The High Court of Gujarat was perfectly justified in holding that the appellant cannot claim that he is entitled to renewal of thelease deed as a matter of right. The finding of the High Court that the appellant is earning huge profits by way of rent is not denied. It has also been stated that the land is required by the Municipality for educational purposes. | 0 | 1,347 | 309 | ### 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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in the year 1982.4. It appears that, in the meanwhile, the Savarkundla Municipality issued two notices to the appellant company in the year 1976 asking the appellant company to handover the land to the Municipality. A dispute arose since the company did not handover the possession of the leased property. Thereafter, this dispute was referred to the Arbitration. The Arbitrator made theaward in favour of the company on 11.03.1978. The Arbitrator held as follows:"....The Company can carry out any sort of construction it may deem fit and for any purpose it may find useful for. And the Municipality is liable to grant permission for construction without laying any condition. In this regard, as stated above, the Company has the right to renew the Deed of Lease and so the only question that arises is that whether the Company can carry out construction on the aforesaid land or not. This land has been given this land for its business (sic). Therefore the Company can carry out construction over this land for its business........"5. The operative portion of the Award reads as follows:"3. The Company can carry out on the land construction which it deems proper and for such use as it deems proper. Since the Municipality is an autonomous body and the Rent Act is not applicable to the land owned by a local autonomous institution. In case of such properties the Rights of Tenants and Property Owners are as per the provisions of the Transfer of Properties Act. The Municipality is responsible to grant the permission for construction as per the permission of construction granted by the Company."The Arbitrator held that the appellant company was entitled to renewal of the lease deed and was also entitled to make construction on the land in question connected with its business. This Award was made Rule of the Court on 26.04.1978.6. Though the Award was passed in favour of the company and the Decree in terms of the Award had also been passed, the Collector, Savarkundla cancelled the lease deed on the ground that the appellant was trying to raise construction on the land in question. Thereafter, the appellant filed a Writ Petition being Special Civil Application No. 845 of 1978. This Writ Petition was allowed and the order of the Collector was set aside. Thereafter also, no lease deed was executed since the Municipality did not have the power to execute the lease deed for more than 10 years. Finally, on 23.10.1991, the Government of Gujarat issued an order that the lease deed may be renewed for a further term of 30 years from 01.04.1982. In actual fact, this lease deed was only executed on 12.04.2007. However, this lease deed was made effective for a period of 30 years from 01.04.1982 till 31.03.2012.7. Shri Ashok Desai, learned senior counsel appearing for the appellant, submits that in view of the conditions quoted hereinabove, the appellant is entitled to renewal of the lease deed as a matter of right. He further submits since the Municipality has permitted the appellant to construct and raise buildings on the land in question the appellant is entitled to renewal of thelease. He has candidly submitted that the Municipality may charge enhanced lease rent.8. On the other hand, Shri Preetesh Kapoor, learned counsel appearing for respondents submits that there can be no lease in perpetuity in favour of any person. He submits that the State Government had given permission to the Municipality to lease out land only for a period of 30 years in terms of Section 65 (2) of the Gujarat Municipalities Act, 1963 which reads as follows:"65. Powers of municipality to sell, lease, and contract.-xxx xxx xxx(2)In the case of every lease or sale of land under sub-section (1) of section 146 and of a lease of immovable property for a term exceeding ten years and of every sale or other transfer of such immovable property, the market value of which exceeds one lakh of rupees, the previous permission of the State Government is required:Provided that in the case of a lease or sale of land under sub-section (1) of section 146 no such permission shall be granted if such land forms a street or part of a street which has been declared to be a public street under section 148."9. A bare perusal of the aforesaid section makes it very clear that the Municipality has no authority to grant a lease for a period exceeding 10 years without prior permission of the StateGovernment. In the present case, the State Government had only granted permission to lease the land till the year 2012. Therefore, the appellant has no inherent right to claim that fresh lease be granted in its favour.10. Another factor which has to be considered is that the original lease was granted for running an oil mill and as on date admittedly there is no oil mill situated on the land. The leased property is a public property leased out at a very meagre rent. It cannot be utilised for a purpose other than the purpose for which it was leased out. True it is that the appellant may have been permitted to raise construction on the leased land but it is obvious that the construction to be raised should have connection with the original business of the company i.e. running an oil mill. The appellant has raised a huge commercial complex earning crores of rupees but is paying only a few hundred rupees to the Municipality.11. We are of the considered view that the appellant is not entitled to claim that lease deed must be renewed in his favour. The High Court of Gujarat was perfectly justified in holding that the appellant cannot claim that he is entitled to renewal of thelease deed as a matter of right. The finding of the High Court that the appellant is earning huge profits by way of rent is not denied. It has also been stated that the land is required by the Municipality for educational purposes.
### Response:
0
### Explanation:
9. A bare perusal of the aforesaid section makes it very clear that the Municipality has no authority to grant a lease for a period exceeding 10 years without prior permission of the StateGovernment. In the present case, the State Government had only granted permission to lease the land till the year 2012. Therefore, the appellant has no inherent right to claim that fresh lease be granted in its favour.10. Another factor which has to be considered is that the original lease was granted for running an oil mill and as on date admittedly there is no oil mill situated on the land. The leased property is a public property leased out at a very meagre rent. It cannot be utilised for a purpose other than the purpose for which it was leased out. True it is that the appellant may have been permitted to raise construction on the leased land but it is obvious that the construction to be raised should have connection with the original business of the company i.e. running an oil mill. The appellant has raised a huge commercial complex earning crores of rupees but is paying only a few hundred rupees to the Municipality.11. We are of the considered view that the appellant is not entitled to claim that lease deed must be renewed in his favour. The High Court of Gujarat was perfectly justified in holding that the appellant cannot claim that he is entitled to renewal of thelease deed as a matter of right. The finding of the High Court that the appellant is earning huge profits by way of rent is not denied. It has also been stated that the land is required by the Municipality for educational purposes.
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Arati Bezbaruah Vs. Dy Director Gen.Geo.Survey Of India &Anr | fatal accident on 13th November, 1990 while he was proceeding on a scooter whence a jeep bearing registration No. MLK-5548 dashed against it. The claimant claimed compensation for a sum of Rs. 27,46,000/- before the Motor Accidents Claims Tribunal. The Tribunal, however, having regard to the deceaseds salary which at the relevant point of time was Rs. 3500/- per month, calculated the monthly dependency at Rs. 1700/-. The Tribunal calculated the life expectancy of the deceased to be 65 years, and the age of the deceased at the time of accident being 40 years, applied 15 as multiplier. However, from the said amount, 20% was directed to be deducted towards uncertainty of life as well as 10% for getting the lump sum amount and thus on that basis of the amount of compensation which would have otherwise come to Rs. 3,06,000/- was reduced to Rs. 2,14,200/-. A sum of Rs. 3,000/- was, however, awarded as expenses incurred by the family for the treatment of the deceased, and travelling expenses etc. A further sum of Rs. 3,000/- was awarded by way of loss of consortium, Rs. 6000/- towards the expenses of cremation, Rs. 3,000/- for loss of love and affection. On the said basis a total compensation of Rs. 2,50,200/- was awarded. It was further directed that the awarded amount be paid to the claimants with interest at the rate of 6% per annum. The High Court in appeal, however, held that having regard to the income of the deceased, which was Rs. 3500/- per month, the loss of dependency should be enhanced to the tune of Rs. 2,000/- per month. So far as rate of interest is concerned, the same was also directed to be enhanced to 8% per annum from the date of filing of the claim till the date of the receipt of the awarded amount.3. Mr. A.P. Mohanty, the learned counsel appearing on behalf of the appellant raised two contentions in support of this appeal. The learned counsel would firstly submit that the rate of interest prevailing at the relevant time being 10%, the High Court erred in granting interest at the rate of 8% per annum. The learned counsel in support of the said contentions relied upon R.L. Gupta and others vs. Jupitor General Insurance Company and others (1990) 1 SCC 356 ), Kaushnuma Begum (Smt.) and others vs. New India Assurance Co. Ltd. and others (2001) 2 SCC 9 ) and United India Insurance Co. Ltd. and others vs. Patricia Jean Mahajan and others (2002) 6 SCC 281 ).4. The learned counsel would next contend as the appellant was earning about Rs. 3500/- per month, i.e. Rs. 42,000/- per year, upon deducting one third thereof from the said amount, a sum of Rs. 28,000/- per annum should have been held to the loss of dependency and in that view of the matter the amount of compensation should have been calculated by applying multiplier of 16 as the age of the deceased at the time of the accident was 40 years.5. Mr. Ashok Bhan, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that in a case of this nature awarding of interest at the rate of 9% would be fair having regard to the decision of this Court in United India Insurance Co. Ltd. (supra). The learned counsel, would further draw our attention to the fact that multiplier of 10 was applied in that case.6. The question as to what should be rate of interest, in the opinion of this Court, would depend upon the facts and circumstances of each case. Award of interest would normally depend upon the bank rate prevailing at the relevant time. 7. In R.L. Gupta (supra), interest at the rate of 12% was awarded. However, no reason has been assigned in support thereof. 8. In Kaushnuma Begum (supra) the amount of compensation was directed to be paid with interest at the rate of 9 per cent annum from the date of claim. The same rate of interest was awarded, as noticed hereinafter, in the case of United India Insurance Co. Ltd. (supra). 9. We are of the opinion that the amount of interest should, having regard to the facts and circumstances of the case, be paid at the rate of 9% per annum.10. The structured formula base has been set out in the Second Schedule to the Motor Vehicles Act. 11. It is now a well settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation of the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case. 12. The victim at the relevant time was 40 years of age. The Tribunal and the High Court, therefore, cannot be said to have committed an error in applying the multiplier of 15. The only question which is required to be considered now is as to how the multiplicand should be arrived at.13. The deceased at the time of accident was a young man. He had a stable job. A reasonably liberal view of his future prospects should have, therefore, been taken into consideration by the High Court as well as by the Tribunal.14. Having regard to the prospects and advancement of the future career, a higher estimate of the yearly income at Rs. 45,000/- would not be out of place. From the said amount, one-third of the gross income towards personal living expenses should be deducted. The amount of Rs. 30,000/- should, thus be determined as the loss of dependency. The said sum should be capitalized by applying the multiplier of 15, which comes to Rs. 4,50,000/-. | 1[ds]9. We are of the opinion that the amount of interest should, having regard to the facts and circumstances of the case, be paid at the rate of 9% per annum.10. The structured formula base has been set out in the Second Schedule to the Motor Vehicles Act.The victim at the relevant time was 40 years of age. The Tribunal and the High Court, therefore, cannot be said to have committed an error in applying the multiplier of 15. The only question which is required to be considered now is as to how the multiplicand should be arrived at.13. The deceased at the time of accident was a young man. He had a stable job. A reasonably liberal view of his future prospects should have, therefore, been taken into consideration by the High Court as well as by the Tribunal.14. Having regard to the prospects and advancement of the future career, a higher estimate of the yearly income at Rs. 45,000/- would not be out of place. From the said amount, one-third of the gross income towards personal living expenses should be deducted. The amount of Rs. 30,000/- should, thus be determined as the loss of dependency. The said sum should be capitalized by applying the multiplier of 15, which comes to Rs. | 1 | 1,250 | 243 | ### 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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fatal accident on 13th November, 1990 while he was proceeding on a scooter whence a jeep bearing registration No. MLK-5548 dashed against it. The claimant claimed compensation for a sum of Rs. 27,46,000/- before the Motor Accidents Claims Tribunal. The Tribunal, however, having regard to the deceaseds salary which at the relevant point of time was Rs. 3500/- per month, calculated the monthly dependency at Rs. 1700/-. The Tribunal calculated the life expectancy of the deceased to be 65 years, and the age of the deceased at the time of accident being 40 years, applied 15 as multiplier. However, from the said amount, 20% was directed to be deducted towards uncertainty of life as well as 10% for getting the lump sum amount and thus on that basis of the amount of compensation which would have otherwise come to Rs. 3,06,000/- was reduced to Rs. 2,14,200/-. A sum of Rs. 3,000/- was, however, awarded as expenses incurred by the family for the treatment of the deceased, and travelling expenses etc. A further sum of Rs. 3,000/- was awarded by way of loss of consortium, Rs. 6000/- towards the expenses of cremation, Rs. 3,000/- for loss of love and affection. On the said basis a total compensation of Rs. 2,50,200/- was awarded. It was further directed that the awarded amount be paid to the claimants with interest at the rate of 6% per annum. The High Court in appeal, however, held that having regard to the income of the deceased, which was Rs. 3500/- per month, the loss of dependency should be enhanced to the tune of Rs. 2,000/- per month. So far as rate of interest is concerned, the same was also directed to be enhanced to 8% per annum from the date of filing of the claim till the date of the receipt of the awarded amount.3. Mr. A.P. Mohanty, the learned counsel appearing on behalf of the appellant raised two contentions in support of this appeal. The learned counsel would firstly submit that the rate of interest prevailing at the relevant time being 10%, the High Court erred in granting interest at the rate of 8% per annum. The learned counsel in support of the said contentions relied upon R.L. Gupta and others vs. Jupitor General Insurance Company and others (1990) 1 SCC 356 ), Kaushnuma Begum (Smt.) and others vs. New India Assurance Co. Ltd. and others (2001) 2 SCC 9 ) and United India Insurance Co. Ltd. and others vs. Patricia Jean Mahajan and others (2002) 6 SCC 281 ).4. The learned counsel would next contend as the appellant was earning about Rs. 3500/- per month, i.e. Rs. 42,000/- per year, upon deducting one third thereof from the said amount, a sum of Rs. 28,000/- per annum should have been held to the loss of dependency and in that view of the matter the amount of compensation should have been calculated by applying multiplier of 16 as the age of the deceased at the time of the accident was 40 years.5. Mr. Ashok Bhan, the learned counsel appearing on behalf of the respondents, on the other hand, would submit that in a case of this nature awarding of interest at the rate of 9% would be fair having regard to the decision of this Court in United India Insurance Co. Ltd. (supra). The learned counsel, would further draw our attention to the fact that multiplier of 10 was applied in that case.6. The question as to what should be rate of interest, in the opinion of this Court, would depend upon the facts and circumstances of each case. Award of interest would normally depend upon the bank rate prevailing at the relevant time. 7. In R.L. Gupta (supra), interest at the rate of 12% was awarded. However, no reason has been assigned in support thereof. 8. In Kaushnuma Begum (supra) the amount of compensation was directed to be paid with interest at the rate of 9 per cent annum from the date of claim. The same rate of interest was awarded, as noticed hereinafter, in the case of United India Insurance Co. Ltd. (supra). 9. We are of the opinion that the amount of interest should, having regard to the facts and circumstances of the case, be paid at the rate of 9% per annum.10. The structured formula base has been set out in the Second Schedule to the Motor Vehicles Act. 11. It is now a well settled principle of law that the payment of compensation on the basis of structured formula as provided for under the Second Schedule should not ordinarily be deviated from. Section 168 of the Motor Vehicles Act lays down the guidelines for determination of the amount of compensation in terms of Section 166 thereof. Deviation of the structured formula, however, as has been held by this Court, may be resorted to in exceptional cases. Furthermore, the amount of compensation should be just and fair in the facts and circumstances of each case. 12. The victim at the relevant time was 40 years of age. The Tribunal and the High Court, therefore, cannot be said to have committed an error in applying the multiplier of 15. The only question which is required to be considered now is as to how the multiplicand should be arrived at.13. The deceased at the time of accident was a young man. He had a stable job. A reasonably liberal view of his future prospects should have, therefore, been taken into consideration by the High Court as well as by the Tribunal.14. Having regard to the prospects and advancement of the future career, a higher estimate of the yearly income at Rs. 45,000/- would not be out of place. From the said amount, one-third of the gross income towards personal living expenses should be deducted. The amount of Rs. 30,000/- should, thus be determined as the loss of dependency. The said sum should be capitalized by applying the multiplier of 15, which comes to Rs. 4,50,000/-.
### Response:
1
### Explanation:
9. We are of the opinion that the amount of interest should, having regard to the facts and circumstances of the case, be paid at the rate of 9% per annum.10. The structured formula base has been set out in the Second Schedule to the Motor Vehicles Act.The victim at the relevant time was 40 years of age. The Tribunal and the High Court, therefore, cannot be said to have committed an error in applying the multiplier of 15. The only question which is required to be considered now is as to how the multiplicand should be arrived at.13. The deceased at the time of accident was a young man. He had a stable job. A reasonably liberal view of his future prospects should have, therefore, been taken into consideration by the High Court as well as by the Tribunal.14. Having regard to the prospects and advancement of the future career, a higher estimate of the yearly income at Rs. 45,000/- would not be out of place. From the said amount, one-third of the gross income towards personal living expenses should be deducted. The amount of Rs. 30,000/- should, thus be determined as the loss of dependency. The said sum should be capitalized by applying the multiplier of 15, which comes to Rs.
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Dollar Company, Madras Vs. Collector Of Madras | surmises floating in mid-air, particularly where the party who urges these feathery likelihoods stood mute at the trial stage. He failed to speak only to become a martyr for silence.9. Sri Natesan switched on to the prices of other lands in the locality to overcome the self-created obstacle of his clients purchase. This is specious logic. When decisive evidence of the market value of the land compulsorily acquired is unavailable you seek light from comparable neighbourhood. Such is not the case here. Even so, we travelled with counsel on to other lands, to gather whether any grave error had crept into the High Courts assessment. The discovery made was that lands in the near neighbourhood were sold sometime earlier at prices ranging from Rs. 300/- to Rs. 400/- and in one case Rs. 900/- (Exs. R2 to R7) while distant neighbours like that covered by Ex. C11 were valued by court at around Rs. 2,200/- or Rs. 2,400/- per ground. This wide disparity may be a trifle mystifying. Even so, we go by lands close by and not by one a mile and-half away as Ex. C11 plot. In an industrial area, land prices are sensitive to an intricate variety of factors.10. Propinquity to highway or ports and many industrial and social imponderables enter the verdict of evaluation. So much so we cannot automatically assert, with reference to a piece of land a mile-and-half away, that it serves as a guide or fixing the price of the suit plot.What the High Court has done is to have at the back of its mind the various sales, Exhibits R2 to R7, which fall far below the value demanded by the claimant and the high prices awarded by the same High Court in regard to other lands distances away, have regard to the then growing industrial potential and make an intelligent guess.Maybe as the learned Advocate General has pointed out, in the light of evidence regarding the precise land and the particular owner, there was no justification for awarding such a high price as has been done but the State has not bothered to come up in appeal and we cannot hold that the High Court was in error in making out of the totality of materials available, a best judgment assessment of the market value.No serious flaw in principle, no omission to consider important material or like infirmity has been pointed out to fault the judges on the appraisal.11. Nevertheless, Sri Natesan contended strenuously that the sales showing low prices were not reliable for two reasons. They were distress sales and prices had gone up from the dates of those deeds which were of 1949-50. Neither argument is conclusive. True, a few of the sales suggest some pressure inducing the vendors to dispose of their land. But there are other deeds which are unblemished by any such depressant. Having gone through the documents in question we are satisfied that none of the sales bear marks of throw away prices.12. The other argument that prices must have inexorably risen from 1949 to 1959 is no axiomatic proposition. True, generally speaking, there has been an inflationary spiral in India which has not spared realty. But there is evidence in the present case to show that between 1949 and 1952 lands in this very area stood stationary in their prices. Various geoeconomic factors have affected land prices, some to boost them, others to slump them. Therefore we cannot be persuaded to hold that a relentless rise in land prices has come to stay. Take but one example: If a land adjoins a factory which needs to be expanded further, a higher price may be offered by that factory owner. Likewise, if a heavy tax on construction of buildings or ceiling on vacant urban land is in the offing, prices of building sites may come down. It may even be said that such a factor as the application of the MISA to smugglers may depress prices of many items, including land and foreign cars, in Certain places. Another exotic example. In some American cities the influx of certain coloured races into the downtown area brings down the market value of real estate, under current social conditions.13. While it is true that the area we are concerned with is an industrial belt, we cannot forget that there are housing colonies also as adjuncts so that some lands may be less suitable for industrial buildings but may stiff be useful for workers houses. It is in evidence that the plots acquired here had ponds, the appellant himself having filled up the pond in his plot. This shows incidentally that high-rising constructions may require pile-driving at high cost. We need not guess at the various chancy factors except to state that having due regard to the conspectus of circumstances, including the appellants own cost price, the Court has made a sound judgment. In this view, we do not think there is need for further discussion of the facts pressed before us by the appellant. We agree with him that the purpose for which the land is acquired has no bearing on the value to be determined by the Court but our conclusion remains unaltered.14. We see no reason, no law nor justice, to interfere with the judgment under appeal. Maybe, the appellant is aggrieved that slightly inferior lands acquired simultaneously and adjoining his plot have been given the same value as has been awarded to him. It may also be that each court he has approached has improved upon the price awarded by the earlier one and therefore he might have obtained certificate hopefully. And looking at his lost land now, years later, when real estate has risen in price much more, he may sigh at what is fixed and strive to get more. But a closer examination has disclosed no error in principle in the High Courts judgment nor has any of the limited grounds on which this Courts jurisdiction can be legitimately exercised been made out. | 0[ds]7. Property valuation as a practised art is greatly influenced by legal and economic constraints. But, in this case, we do not have any complex considerations since helpful indicators are available. Price paid by the owner recently represents an expression of market value, as bona fide evidence of value, subject to such matters as (a) the relationship of the parties; (b) the market conditions and the terms of sale and (c) the date of sale. It may not end the enquiry but goes a long way to solve the problem. In this connection it may be useful to refer to the decision of this Court in S.L.A. Officer v. T. A. Setty. AIR 1959 SC 429 where it was observed:"It is not disputed that the function of the court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification under Section 4 (1) and the methods of valuation may be (1) opinion of experts, (2) the price paid within a reasonable time in bona fide transactions of purchase ofthe lands acquiredor the lands adjacent to the lands acquired and possessing similar advantages and (3) a number of years purchase of the actual or immediately prospective profits of the lands acquired." (p. 432, paraSri Natesan switched on to the prices of other lands in the locality to overcome theobstacle of his clients purchase. This is specious logic.When decisive evidence of the market value of the land compulsorily acquired is unavailable you seek light from comparable neighbourhood. Such is not the case here. Even so, we travelled with counsel on to other lands, to gather whether any grave error had crept into the High Courts assessment. The discovery made was that lands in the near neighbourhood were sold sometime earlier at prices ranging from Rs. 300/to Rs. 400/and in one case Rs. 900/(Exs. R2 to R7) while distant neighbours like that covered by Ex. C11 were valued by court at around Rs. 2,200/or Rs. 2,400/per ground. This wide disparity may be a trifle mystifying. Even so, we go by lands close by and not by one a mileaway as Ex. C11 plot. In an industrial area, land prices are sensitive to an intricate variety of factors.Propinquity to highway or ports and many industrial and social imponderables enter the verdict of evaluation. So much so we cannot automatically assert, with reference to a piece of land aaway, that it serves as a guide or fixing the price of the suit plot.What the High Court has done is to have at the back of its mind the various sales, Exhibits R2 to R7, which fall far below the value demanded by the claimant and the high prices awarded by the same High Court in regard to other lands distances away, have regard to the then growing industrial potential and make an intelligent guess.Maybe as the learned Advocate General has pointed out, in the light of evidence regarding the precise land and the particular owner, there was no justification for awarding such a high price as has been done but the State has not bothered to come up in appeal and we cannot hold that the High Court was in error in making out of the totality of materials available, a best judgment assessment of the market value.No serious flaw in principle, no omission to consider important material or like infirmity has been pointed out to fault the judges on thegenerally speaking, there has been an inflationary spiral in India which has not spared realty. But there is evidence in the present case to show that between 1949 and 1952 lands in this very area stood stationary in their prices. Various geoeconomic factors have affected land prices, some to boost them, others to slump them. Therefore we cannot be persuaded to hold that a relentless rise in land prices has come to stay. Take but one example: If a land adjoins a factory which needs to be expanded further, a higher price may be offered by that factory owner. Likewise, if a heavy tax on construction of buildings or ceiling on vacant urban land is in the offing, prices of building sites may come down. It may even be said that such a factor as the application of the MISA to smugglers may depress prices of many items, including land and foreign cars, in Certain places. Another exotic example. In some American cities the influx of certain coloured races into the downtown area brings down the market value of real estate, under current social conditions.13. While it is true that the area we are concerned with is an industrial belt, we cannot forget that there are housing colonies also as adjuncts so that some lands may be less suitable for industrial buildings but may stiff be useful for workers houses. It is in evidence that the plots acquired here had ponds, the appellant himself having filled up the pond in his plot. This shows incidentally thatconstructions may requireat high cost. We need not guess at the various chancy factors except to state that having due regard to the conspectus of circumstances, including the appellants own cost price, the Court has made a sound judgment. In this view, we do not think there is need for further discussion of the facts pressed before us by the appellant. We agree with him that the purpose for which the land is acquired has no bearing on the value to be determined by the Court but our conclusion remains unaltered.14. We see no reason, no law nor justice, to interfere with the judgment under appeal. Maybe, the appellant is aggrieved that slightly inferior lands acquired simultaneously and adjoining his plot have been given the same value as has been awarded to him. It may also be that each court he has approached has improved upon the price awarded by the earlier one and therefore he might have obtained certificate hopefully. And looking at his lost land now, years later, when real estate has risen in price much more, he may sigh at what is fixed and strive to get more. But a closer examination has disclosed no error in principle in the High Courts judgment nor has any of the limited grounds on which this Courts jurisdiction can be legitimately exercised been made out. | 0 | 2,761 | 1,171 | ### Instruction:
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### Input:
surmises floating in mid-air, particularly where the party who urges these feathery likelihoods stood mute at the trial stage. He failed to speak only to become a martyr for silence.9. Sri Natesan switched on to the prices of other lands in the locality to overcome the self-created obstacle of his clients purchase. This is specious logic. When decisive evidence of the market value of the land compulsorily acquired is unavailable you seek light from comparable neighbourhood. Such is not the case here. Even so, we travelled with counsel on to other lands, to gather whether any grave error had crept into the High Courts assessment. The discovery made was that lands in the near neighbourhood were sold sometime earlier at prices ranging from Rs. 300/- to Rs. 400/- and in one case Rs. 900/- (Exs. R2 to R7) while distant neighbours like that covered by Ex. C11 were valued by court at around Rs. 2,200/- or Rs. 2,400/- per ground. This wide disparity may be a trifle mystifying. Even so, we go by lands close by and not by one a mile and-half away as Ex. C11 plot. In an industrial area, land prices are sensitive to an intricate variety of factors.10. Propinquity to highway or ports and many industrial and social imponderables enter the verdict of evaluation. So much so we cannot automatically assert, with reference to a piece of land a mile-and-half away, that it serves as a guide or fixing the price of the suit plot.What the High Court has done is to have at the back of its mind the various sales, Exhibits R2 to R7, which fall far below the value demanded by the claimant and the high prices awarded by the same High Court in regard to other lands distances away, have regard to the then growing industrial potential and make an intelligent guess.Maybe as the learned Advocate General has pointed out, in the light of evidence regarding the precise land and the particular owner, there was no justification for awarding such a high price as has been done but the State has not bothered to come up in appeal and we cannot hold that the High Court was in error in making out of the totality of materials available, a best judgment assessment of the market value.No serious flaw in principle, no omission to consider important material or like infirmity has been pointed out to fault the judges on the appraisal.11. Nevertheless, Sri Natesan contended strenuously that the sales showing low prices were not reliable for two reasons. They were distress sales and prices had gone up from the dates of those deeds which were of 1949-50. Neither argument is conclusive. True, a few of the sales suggest some pressure inducing the vendors to dispose of their land. But there are other deeds which are unblemished by any such depressant. Having gone through the documents in question we are satisfied that none of the sales bear marks of throw away prices.12. The other argument that prices must have inexorably risen from 1949 to 1959 is no axiomatic proposition. True, generally speaking, there has been an inflationary spiral in India which has not spared realty. But there is evidence in the present case to show that between 1949 and 1952 lands in this very area stood stationary in their prices. Various geoeconomic factors have affected land prices, some to boost them, others to slump them. Therefore we cannot be persuaded to hold that a relentless rise in land prices has come to stay. Take but one example: If a land adjoins a factory which needs to be expanded further, a higher price may be offered by that factory owner. Likewise, if a heavy tax on construction of buildings or ceiling on vacant urban land is in the offing, prices of building sites may come down. It may even be said that such a factor as the application of the MISA to smugglers may depress prices of many items, including land and foreign cars, in Certain places. Another exotic example. In some American cities the influx of certain coloured races into the downtown area brings down the market value of real estate, under current social conditions.13. While it is true that the area we are concerned with is an industrial belt, we cannot forget that there are housing colonies also as adjuncts so that some lands may be less suitable for industrial buildings but may stiff be useful for workers houses. It is in evidence that the plots acquired here had ponds, the appellant himself having filled up the pond in his plot. This shows incidentally that high-rising constructions may require pile-driving at high cost. We need not guess at the various chancy factors except to state that having due regard to the conspectus of circumstances, including the appellants own cost price, the Court has made a sound judgment. In this view, we do not think there is need for further discussion of the facts pressed before us by the appellant. We agree with him that the purpose for which the land is acquired has no bearing on the value to be determined by the Court but our conclusion remains unaltered.14. We see no reason, no law nor justice, to interfere with the judgment under appeal. Maybe, the appellant is aggrieved that slightly inferior lands acquired simultaneously and adjoining his plot have been given the same value as has been awarded to him. It may also be that each court he has approached has improved upon the price awarded by the earlier one and therefore he might have obtained certificate hopefully. And looking at his lost land now, years later, when real estate has risen in price much more, he may sigh at what is fixed and strive to get more. But a closer examination has disclosed no error in principle in the High Courts judgment nor has any of the limited grounds on which this Courts jurisdiction can be legitimately exercised been made out.
### Response:
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### Explanation:
of the parties; (b) the market conditions and the terms of sale and (c) the date of sale. It may not end the enquiry but goes a long way to solve the problem. In this connection it may be useful to refer to the decision of this Court in S.L.A. Officer v. T. A. Setty. AIR 1959 SC 429 where it was observed:"It is not disputed that the function of the court in awarding compensation under the Act is to ascertain the market value of the land at the date of the notification under Section 4 (1) and the methods of valuation may be (1) opinion of experts, (2) the price paid within a reasonable time in bona fide transactions of purchase ofthe lands acquiredor the lands adjacent to the lands acquired and possessing similar advantages and (3) a number of years purchase of the actual or immediately prospective profits of the lands acquired." (p. 432, paraSri Natesan switched on to the prices of other lands in the locality to overcome theobstacle of his clients purchase. This is specious logic.When decisive evidence of the market value of the land compulsorily acquired is unavailable you seek light from comparable neighbourhood. Such is not the case here. Even so, we travelled with counsel on to other lands, to gather whether any grave error had crept into the High Courts assessment. The discovery made was that lands in the near neighbourhood were sold sometime earlier at prices ranging from Rs. 300/to Rs. 400/and in one case Rs. 900/(Exs. R2 to R7) while distant neighbours like that covered by Ex. C11 were valued by court at around Rs. 2,200/or Rs. 2,400/per ground. This wide disparity may be a trifle mystifying. Even so, we go by lands close by and not by one a mileaway as Ex. C11 plot. In an industrial area, land prices are sensitive to an intricate variety of factors.Propinquity to highway or ports and many industrial and social imponderables enter the verdict of evaluation. So much so we cannot automatically assert, with reference to a piece of land aaway, that it serves as a guide or fixing the price of the suit plot.What the High Court has done is to have at the back of its mind the various sales, Exhibits R2 to R7, which fall far below the value demanded by the claimant and the high prices awarded by the same High Court in regard to other lands distances away, have regard to the then growing industrial potential and make an intelligent guess.Maybe as the learned Advocate General has pointed out, in the light of evidence regarding the precise land and the particular owner, there was no justification for awarding such a high price as has been done but the State has not bothered to come up in appeal and we cannot hold that the High Court was in error in making out of the totality of materials available, a best judgment assessment of the market value.No serious flaw in principle, no omission to consider important material or like infirmity has been pointed out to fault the judges on thegenerally speaking, there has been an inflationary spiral in India which has not spared realty. But there is evidence in the present case to show that between 1949 and 1952 lands in this very area stood stationary in their prices. Various geoeconomic factors have affected land prices, some to boost them, others to slump them. Therefore we cannot be persuaded to hold that a relentless rise in land prices has come to stay. Take but one example: If a land adjoins a factory which needs to be expanded further, a higher price may be offered by that factory owner. Likewise, if a heavy tax on construction of buildings or ceiling on vacant urban land is in the offing, prices of building sites may come down. It may even be said that such a factor as the application of the MISA to smugglers may depress prices of many items, including land and foreign cars, in Certain places. Another exotic example. In some American cities the influx of certain coloured races into the downtown area brings down the market value of real estate, under current social conditions.13. While it is true that the area we are concerned with is an industrial belt, we cannot forget that there are housing colonies also as adjuncts so that some lands may be less suitable for industrial buildings but may stiff be useful for workers houses. It is in evidence that the plots acquired here had ponds, the appellant himself having filled up the pond in his plot. This shows incidentally thatconstructions may requireat high cost. We need not guess at the various chancy factors except to state that having due regard to the conspectus of circumstances, including the appellants own cost price, the Court has made a sound judgment. In this view, we do not think there is need for further discussion of the facts pressed before us by the appellant. We agree with him that the purpose for which the land is acquired has no bearing on the value to be determined by the Court but our conclusion remains unaltered.14. We see no reason, no law nor justice, to interfere with the judgment under appeal. Maybe, the appellant is aggrieved that slightly inferior lands acquired simultaneously and adjoining his plot have been given the same value as has been awarded to him. It may also be that each court he has approached has improved upon the price awarded by the earlier one and therefore he might have obtained certificate hopefully. And looking at his lost land now, years later, when real estate has risen in price much more, he may sigh at what is fixed and strive to get more. But a closer examination has disclosed no error in principle in the High Courts judgment nor has any of the limited grounds on which this Courts jurisdiction can be legitimately exercised been made out.
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Delhi Cold Storage Private Limited Vs. Commissioner of Income Tax, Delhi-I, New Delhi I.N. Delhi | the Oxford Dictionary, Webster’s New International Dictionary, Words and Phrases Legally Defined Vol. 4 and in Encyclopedia Britannica Vol. 9. The High Court was impressed by the statement in Encyclopedia Britannica, Vol. 9 where it was said: “The only method by which fresh foods may be preserved for a considerable period in the raw state is by subjecting them to as low a temperature as possible without causing damage by freezing. Storage at temperature above freezing, in the neighbourhood of 35 F/2 C is known as cold storage. Storage at such temperature makes possible the holding in good condition of many fresh foods for considerable periods and their shipment to distant markets to consumers.” The High Court proceeded to state: “The act of cold storage appears to us to be an act whereby foods or products stored in the cold store are prevented from their nature age decay. The potatoes which are kept in the cold storage are preserved in the original state and their normal decay is prevented. That, in our opinion, would be processing the goods, that is to say, preservation applying a method to the goods whereby the goods are prevented from taking its normal course. Therefore, looking from a broad point of view, in the light of the definition provided in the several dictionaries to which we have referred, it appears to us, that in the context of the present statute, which has used the expression “processing” in contradistinction or differently from the expression “manufacture”, the assessee-company was engaged in the act of processing the goods in terms of the Finance Act at the relevant time”. 7. The Court referred with approval to a decision of the Allahabad High Court in Addl. Commissioner of Income tax, Kanpur v. Farrukhabad Cold Storage (P) Ltd., 107 ITR 816 . The Calcutta High Court’s view directly supports the appellant’s stand. 8. In the impugned judgment reported in P 56 ITR 97, after dealing with the cases of the Calcutta and Allahabad High Courts, reference was made to the decision of this Court in Chowgule and Co. Pvt. Ltd. and Anr. v. Union of India and Ors., (1981) 1 SCC 653 to find out the true meaning of the two words ‘manufacture’ and ‘processing’. After discussing some precedents this Court observed thus: “What is necessary in order to characterise an operation as “processing” is that the commodity must, as a result of the operation, experience some change. Here, in the present case, diverse quantities of ore possessing different chemical and physical compositions are blended together to produce ore of the requisite chemical and physical composition demanded by the foreign purchaser and obviously as a result of this blending, the quantities of ore mixed together in the course of loading through the mechanical ore handling plant experience change in their respective chemical and physical compositions, because what is produced by such blending is ore of a different chemical and physical composition. When the chemical and physical composition of each kind of ore which goes into the blending is changed, there can be no doubt that the operation of blending would amount to “processing” of ore within the meaning of Section 8(3)(c) and Rule 13. It is no doubt true that the blending of ore of diverse physical and chemical compositions is carried out by the simple act of physically mixing different quantities of such ore on the conveyor belt of the mechanical ore handling plant. But to our mind it is immaterial as to how the blending is done and what process is utilised for the purpose of blending. What is material to consider is whether the different quantities of ore which are blended together in the course of loading through the Mechanical ore handling plant undergo any change in their physical and chemical composition as a result of blending and so far as this aspect of the question is concerned, it is impossible to argue that they do not suffer any change in their respective chemical and physical compositions.” 9. The meaning given to the word ‘processing’ and the test laid down to find out whether the operation amounts to processing by the three-Judge Bench of this Court runs counter to the conclusions reached by the Allahabad and Calcutta High Courts. As we have already pointed out, the two direct decisions on the point are the cases from Allahabad and Calcutta. The other cases that have been cited in the Calcutta judgment or at the Bar are cases not relating to the meaning or ambit of the relevant expression in the definition of Section 2(7)(c) of the Finance Act, 1973. 10. We have already noted that processing is a term of wide amplitude and has various aspects and meanings. 11. In common parlance ‘processing’ is understood as an action which brings forth some change or alteration of the goods or material which is subjected to the act of processing. The dictionary meaning of the term is not very different from this meaning in one sense while various other meanings of wider amplitude are also available. The view taken by Allahabad and Calcutta High Courts did not find favour with the three-Judge Bench of this Court and in clear terms the judgment indicates that processing involves bringing into existence a different substance from what the material was at the commencement of the process.12. In a cold storage, vegetables, fruits and several other articles which require preservation by refrigeration are stored. While as a result of long storage, scientific examination might indicate loss of moisture content that is not sufficient for holding that the stored articles have undergone a process within the meaning of Section 2(7)(c) of the Finance Act, 1973. The three-Judge Bench decision must be taken to have overruled the view of the Allahabad High Court in Addl. Commissioner of Income tax, Kanpur v. Farrkhabad Cold Storage (P) Ltd. (supra) and that of the Calcutta High Court in Commissioner of Income tax v. Radha Nagar Cold Storage (P) Ltd. (supra), | 0[ds]9. The meaning given to the wordand the test laid down to find out whether the operation amounts to processing by the three-Judge Bench of this Court runs counter to the conclusions reached by the Allahabad and Calcutta High Courts. As we have already pointed out, the two direct decisions on the point are the cases from Allahabad and Calcutta. The other cases that have been cited in the Calcutta judgment or at the Bar are cases not relating to the meaning or ambit of the relevant expression in theof Section 2(7)(c) of the Finance Act, 1973.In common parlanceis understood as an action which brings forth some change or alteration of the goods or material which isto the act of processing. The dictionary meaning of the term is not very different from this meaning in one sense while various other meanings of wider amplitude are also available. The view taken by Allahabad and Calcutta High Courts did not find favour with the three-Judge Bench of this Court and in clear terms the judgment indicates that processing involves bringing into existence a different substance from what the material was at theof the process.12. In a cold storage, vegetables, fruits and several other articles which require preservation by refrigeration are stored. While as a result of long storage, scientific examination might indicate loss of moisture content that is not sufficient for holding that the stored articles have undergone a process within the meaningof Section 2(7)(c) of the Finance Act, 1973.The Court referred with approval to a decision of the Allahabad High Court in Addl. Commissioner of Income tax, Kanpur v. Farrukhabad Cold Storage (P) Ltd., 107 ITR 816 . The Calcutta Highview directly supports the | 0 | 1,676 | 317 | ### Instruction:
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### Input:
the Oxford Dictionary, Webster’s New International Dictionary, Words and Phrases Legally Defined Vol. 4 and in Encyclopedia Britannica Vol. 9. The High Court was impressed by the statement in Encyclopedia Britannica, Vol. 9 where it was said: “The only method by which fresh foods may be preserved for a considerable period in the raw state is by subjecting them to as low a temperature as possible without causing damage by freezing. Storage at temperature above freezing, in the neighbourhood of 35 F/2 C is known as cold storage. Storage at such temperature makes possible the holding in good condition of many fresh foods for considerable periods and their shipment to distant markets to consumers.” The High Court proceeded to state: “The act of cold storage appears to us to be an act whereby foods or products stored in the cold store are prevented from their nature age decay. The potatoes which are kept in the cold storage are preserved in the original state and their normal decay is prevented. That, in our opinion, would be processing the goods, that is to say, preservation applying a method to the goods whereby the goods are prevented from taking its normal course. Therefore, looking from a broad point of view, in the light of the definition provided in the several dictionaries to which we have referred, it appears to us, that in the context of the present statute, which has used the expression “processing” in contradistinction or differently from the expression “manufacture”, the assessee-company was engaged in the act of processing the goods in terms of the Finance Act at the relevant time”. 7. The Court referred with approval to a decision of the Allahabad High Court in Addl. Commissioner of Income tax, Kanpur v. Farrukhabad Cold Storage (P) Ltd., 107 ITR 816 . The Calcutta High Court’s view directly supports the appellant’s stand. 8. In the impugned judgment reported in P 56 ITR 97, after dealing with the cases of the Calcutta and Allahabad High Courts, reference was made to the decision of this Court in Chowgule and Co. Pvt. Ltd. and Anr. v. Union of India and Ors., (1981) 1 SCC 653 to find out the true meaning of the two words ‘manufacture’ and ‘processing’. After discussing some precedents this Court observed thus: “What is necessary in order to characterise an operation as “processing” is that the commodity must, as a result of the operation, experience some change. Here, in the present case, diverse quantities of ore possessing different chemical and physical compositions are blended together to produce ore of the requisite chemical and physical composition demanded by the foreign purchaser and obviously as a result of this blending, the quantities of ore mixed together in the course of loading through the mechanical ore handling plant experience change in their respective chemical and physical compositions, because what is produced by such blending is ore of a different chemical and physical composition. When the chemical and physical composition of each kind of ore which goes into the blending is changed, there can be no doubt that the operation of blending would amount to “processing” of ore within the meaning of Section 8(3)(c) and Rule 13. It is no doubt true that the blending of ore of diverse physical and chemical compositions is carried out by the simple act of physically mixing different quantities of such ore on the conveyor belt of the mechanical ore handling plant. But to our mind it is immaterial as to how the blending is done and what process is utilised for the purpose of blending. What is material to consider is whether the different quantities of ore which are blended together in the course of loading through the Mechanical ore handling plant undergo any change in their physical and chemical composition as a result of blending and so far as this aspect of the question is concerned, it is impossible to argue that they do not suffer any change in their respective chemical and physical compositions.” 9. The meaning given to the word ‘processing’ and the test laid down to find out whether the operation amounts to processing by the three-Judge Bench of this Court runs counter to the conclusions reached by the Allahabad and Calcutta High Courts. As we have already pointed out, the two direct decisions on the point are the cases from Allahabad and Calcutta. The other cases that have been cited in the Calcutta judgment or at the Bar are cases not relating to the meaning or ambit of the relevant expression in the definition of Section 2(7)(c) of the Finance Act, 1973. 10. We have already noted that processing is a term of wide amplitude and has various aspects and meanings. 11. In common parlance ‘processing’ is understood as an action which brings forth some change or alteration of the goods or material which is subjected to the act of processing. The dictionary meaning of the term is not very different from this meaning in one sense while various other meanings of wider amplitude are also available. The view taken by Allahabad and Calcutta High Courts did not find favour with the three-Judge Bench of this Court and in clear terms the judgment indicates that processing involves bringing into existence a different substance from what the material was at the commencement of the process.12. In a cold storage, vegetables, fruits and several other articles which require preservation by refrigeration are stored. While as a result of long storage, scientific examination might indicate loss of moisture content that is not sufficient for holding that the stored articles have undergone a process within the meaning of Section 2(7)(c) of the Finance Act, 1973. The three-Judge Bench decision must be taken to have overruled the view of the Allahabad High Court in Addl. Commissioner of Income tax, Kanpur v. Farrkhabad Cold Storage (P) Ltd. (supra) and that of the Calcutta High Court in Commissioner of Income tax v. Radha Nagar Cold Storage (P) Ltd. (supra),
### Response:
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### Explanation:
9. The meaning given to the wordand the test laid down to find out whether the operation amounts to processing by the three-Judge Bench of this Court runs counter to the conclusions reached by the Allahabad and Calcutta High Courts. As we have already pointed out, the two direct decisions on the point are the cases from Allahabad and Calcutta. The other cases that have been cited in the Calcutta judgment or at the Bar are cases not relating to the meaning or ambit of the relevant expression in theof Section 2(7)(c) of the Finance Act, 1973.In common parlanceis understood as an action which brings forth some change or alteration of the goods or material which isto the act of processing. The dictionary meaning of the term is not very different from this meaning in one sense while various other meanings of wider amplitude are also available. The view taken by Allahabad and Calcutta High Courts did not find favour with the three-Judge Bench of this Court and in clear terms the judgment indicates that processing involves bringing into existence a different substance from what the material was at theof the process.12. In a cold storage, vegetables, fruits and several other articles which require preservation by refrigeration are stored. While as a result of long storage, scientific examination might indicate loss of moisture content that is not sufficient for holding that the stored articles have undergone a process within the meaningof Section 2(7)(c) of the Finance Act, 1973.The Court referred with approval to a decision of the Allahabad High Court in Addl. Commissioner of Income tax, Kanpur v. Farrukhabad Cold Storage (P) Ltd., 107 ITR 816 . The Calcutta Highview directly supports the
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Raipur Manufacturing Co. Ltd Vs. Okhabhai Devrajbhai Patni | expiration of the initial period of 15 days. It must be remembered that the object of this provision is that, as far as possible, the employer and the employee should arrive at an agreement in respect of the change desired by the employee and it is only where an agreement is not possible that the employee should be allowed to approach the Labour Court. The provisions of the Act are intended to bring about settlement of disputes between the employer and the employees and so far as the methodology or mechanics of the resolution of such disputes is concerned, the greatest importance is attached by the legislature to settlement by negotiations. It is only where settlement through negotiations fails that other modes of resolution of disputes are provided by the legislature in the different provisions of the Act. It is in the light of this philosophy underlying the provisions of the Act and this policy and principle to promote, as far as possible, settlement by negotiation and avoid adjudication, that the words used by the rule making authority in rule 53(2) must be construed and if that is done, there can be little doubt that further period may be mutually fixed between the employer and the employee even after the initial period of 15 days has expired. It is quite possible that even after the expiration of the initial period of 15 days, the employer and the employee may com e together and arrive at a settlement. Why should that be discouraged by compelling the employee to file an application under s. 78(1) (A) (a) (i) within three months of the expiration of the initial period of 15 days, on pain of his application becoming time barred. Such an interpretation would not advance the object and purpose of the Act. The employer and the employee may very well agree, even after the expiration of the initial period of 15 days, that they will try to negotiate a settlement and that would impliedly mean that during the time fixed by them for such negotiations, the employee should not rush to the Labour Court. It is only when such period mutually fixed by them expires without any settlement having been arrived at that a dispute can be deemed to arise, for adjudication of which the employee may approach the Labour Court under s. 78(1) (A) (a) (i). We are, therefore, of the view that further period for arriving at a settlement can be mutually fixed b y the employer and the employee even after the expiration of the initial period of 15 days and where such is the case, the dispute would be deemed to arise on the expiration of such further period, if within that time no settlement is arrived at between the parties. We should of course make it clear that prima facie it seems to us that such further period cannot be mutually fixed after three months have elapsed from the expiration of the initial period of 15 days and the application of the employee under s. 78(1)(A)(a)(i) has already become barred under s. 79(3)(a).It would, therefore, seem clear that if, as a result of what transpired before the Labour Commissioner, further period for arriving at a settlement in respect of the change desired by the respondent was mutually fixed between the appellant and the respondent, the dispute would not be deemed to have arisen till the expiration of such further period and in that event, the application made by the respondent on 7th June, 1973 would be within time. The question, however, is whether it can be said at all that further period was mutually fixed by the appellant and the respondent before the Labour Commissioner. We do not think this question can be answered in favour of the respondent. If we look at the application of the respondent, we do not find in it anything even remotely suggesting that further period for arriving at a settlement was mutually agreed upon between the appellant and the respondent. In the first place, there must be a specific period agreed upon between the parties. Here we do not find any averment of a specific period. Even if we construe the application of the respondent most liberally, the utmost we can extract from it is that adjournment must have been granted by the Labour Commissioner to the Labour Officer for the purpose of arriving at a settlement upto a specific date and that would indicate a specific period. The difficulty, however, still remains that there is no averment that such specific period was mutually fixed by the parties. The only averment made in the application of the respondent is that at the hearing before the Labour Commissioner, the Labour Officer of the appellant "took adjournment to make a compromise", but ultimately no compromise was arrived at. It is not even stated in the application that the respondent consented to the adjournment, so that the application for adjournment by the appellant and the consent to the adjournment by the respondent could be construed as an agreement mutually fixing further period for arriving at a settlement. There being absolutely no averment of further period being mutually fixed between the parties, it is difficult to see how the case of the respondent could be brought within the latter part of rule 53(2). It was never the case of the respondent that further period was mutually fixed and that saved his case from the bar of limitation. The relief that he asked for from the Labour Court as well as Industrial Court was condonation of delay but so far as this relief is concerned, the Labour Court has unfortunately no power to condone the delay and hence his request was rejected. We are, therefore, of the view that the High Court was in error in holding that the application made by the respondent under s. 78(1)(A)(a)(i) was within three months of the arising of the dispute and was hence not barred under s. 79(3) (a). | 1[ds]It will be seen on a combined reading of these provisions that an application to the Labour Court under s. 79(1) in respect of a dispute falling under s. 78(1) (A) (a) (i) must be made within three months of the arising of the dispute and the dispute would be deemed to have arisen if, within a period of 15 days from the receipt of the letter of approach under s. 42, sub-s. (4) by the employer or within such further period as may be mutually fixed by the employer and the employee, no agreement is arrived at in respect of the change desired by the employee.Here in the present case, the letter of approach under s. 42 sub-s. (4) was sent by the respondent to the appellant on 13th February, 1973 and it may be presumed that it was received by the appellant on the same day. The period of 15 days calculated from the date of the receipt of the letter of approach by the appellant, therefore, expired on 28th February, 1973 and admittedly until that time no agreement was arrived at between the appellant and the respondent in respect of the change desired by the respondent. There can, therefore, be no doubt that if nothing further had transpired, the dispute between the parties would be deemed to have arisen at the latest on 1st March, 1973 and the application under s. 79, sub-s. (1) read with s. 78(1) (A) (a) (i) should have been filed within three months from that date, that is, on or before 1st June, 1973 and in the circumstances, the application made by the respondent on 7th June, 1973 would be clearly barred under s. 79(3) (a). Both the Labour Court and the Industrial Court accepted this view and rejected the application of the respondent in limine without examining the merits of the case. The High Court, however, took a different view and held that by reason of the Labour Officer of the appellant asking for adjournment on or after 17th March, 1973 in order to compromise the dispute between the parties, the period of 15 days was extended by mutual agreement between the parties to some date beyond 17th March, 1973 and the application filed by the respondent on 7th June, 1973 was, therefore, within three months of the arising of the dispute and was accordingly saved from the bar of s. 79 (3), it is obvious that the view taken by the High Court can be sustained only if it can be shown that, though no settlement in respect of the change desired by the respondent was arrived at within a period of 15 days from the receipt of the letter of approach by the appellant, further period upto some date beyond 7th March, 1973 was mutually fixed between the appellant and the respondent, for then the dispute would be deemed to have arisen on or after that date and in that event, the application filed by the respondent on 7th June, 1973 would be within three months of the arising of the dispute and hence withinthink there is great force in the contention of the respondent. We do not find anything in rule 53(2) which provides that further period should be mutually fixed by the employer and the employee before the expiration of the initial period of 15 days from the receipt of the letter of approach by the employer. The words used by the rule making authority are "within 15 days of the receipt of the application by the employer or within such further period as may be mutually fixed between the employer and the employee" and these words are sufficiently wide to cover a situation where further period is mutually fixed after the expiration of the initial period of 15 days. There is really no warrant for reading in the words used by the rule making authority any restriction that further period must be mutually fixed before the expiration of the initial period of 15 days. It must be remembered that the object of this provision is that, as far as possible, the employer and the employee should arrive at an agreement in respect of the change desired by the employee and it is only where an agreement is not possible that the employee should be allowed to approach the Labour Court. The provisions of the Act are intended to bring about settlement of disputes between the employer and the employees and so far as the methodology or mechanics of the resolution of such disputes is concerned, the greatest importance is attached by the legislature to settlement by negotiations. It is only where settlement through negotiations fails that other modes of resolution of disputes are provided by the legislature in the different provisions of the Act. It is in the light of this philosophy underlying the provisions of the Act and this policy and principle to promote, as far as possible, settlement by negotiation and avoid adjudication, that the words used by the rule making authority in rule 53(2) must be construed and if that is done, there can be little doubt that further period may be mutually fixed between the employer and the employee even after the initial period of 15 days has expired. It is quite possible that even after the expiration of the initial period of 15 days, the employer and the employee may com e together and arrive at a settlement. Why should that be discouraged by compelling the employee to file an application under s. 78(1) (A) (a) (i) within three months of the expiration of the initial period of 15 days, on pain of his application becoming time barred. Such an interpretation would not advance the object and purpose of the Act. The employer and the employee may very well agree, even after the expiration of the initial period of 15 days, that they will try to negotiate a settlement and that would impliedly mean that during the time fixed by them for such negotiations, the employee should not rush to the Labour Court. It is only when such period mutually fixed by them expires without any settlement having been arrived at that a dispute can be deemed to arise, for adjudication of which the employee may approach the Labour Court under s. 78(1) (A) (a) (i). We are, therefore, of the view that further period for arriving at a settlement can be mutually fixed b y the employer and the employee even after the expiration of the initial period of 15 days and where such is the case, the dispute would be deemed to arise on the expiration of such further period, if within that time no settlement is arrived at between the parties. We should of course make it clear that prima facie it seems to us that such further period cannot be mutually fixed after three months have elapsed from the expiration of the initial period of 15 days and the application of the employee under s. 78(1)(A)(a)(i) has already become barred under s. 79(3)(a).It would, therefore, seem clear that if, as a result of what transpired before the Labour Commissioner, further period for arriving at a settlement in respect of the change desired by the respondent was mutually fixed between the appellant and the respondent, the dispute would not be deemed to have arisen till the expiration of such further period and in that event, the application made by the respondent on 7th June, 1973 would be within time. The question, however, is whether it can be said at all that further period was mutually fixed by the appellant and the respondent before the Labour Commissioner. We do not think this question can be answered in favour of the respondent. If we look at the application of the respondent, we do not find in it anything even remotely suggesting that further period for arriving at a settlement was mutually agreed upon between the appellant and the respondent. In the first place, there must be a specific period agreed upon between the parties. Here we do not find any averment of a specific period. Even if we construe the application of the respondent most liberally, the utmost we can extract from it is that adjournment must have been granted by the Labour Commissioner to the Labour Officer for the purpose of arriving at a settlement upto a specific date and that would indicate a specific period. The difficulty, however, still remains that there is no averment that such specific period was mutually fixed by the parties. The only averment made in the application of the respondent is that at the hearing before the Labour Commissioner, the Labour Officer of the appellant "took adjournment to make a compromise", but ultimately no compromise was arrived at. It is not even stated in the application that the respondent consented to the adjournment, so that the application for adjournment by the appellant and the consent to the adjournment by the respondent could be construed as an agreement mutually fixing further period for arriving at a settlement. There being absolutely no averment of further period being mutually fixed between the parties, it is difficult to see how the case of the respondent could be brought within the latter part of rule 53(2). It was never the case of the respondent that further period was mutually fixed and that saved his case from the bar of limitation. The relief that he asked for from the Labour Court as well as Industrial Court was condonation of delay but so far as this relief is concerned, the Labour Court has unfortunately no power to condone the delay and hence his request was rejected. We are, therefore, of the view that the High Court was in error in holding that the application made by the respondent under s. 78(1)(A)(a)(i) was within three months of the arising of the dispute and was hence not barred under s. 79(3) | 1 | 3,928 | 1,865 | ### Instruction:
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expiration of the initial period of 15 days. It must be remembered that the object of this provision is that, as far as possible, the employer and the employee should arrive at an agreement in respect of the change desired by the employee and it is only where an agreement is not possible that the employee should be allowed to approach the Labour Court. The provisions of the Act are intended to bring about settlement of disputes between the employer and the employees and so far as the methodology or mechanics of the resolution of such disputes is concerned, the greatest importance is attached by the legislature to settlement by negotiations. It is only where settlement through negotiations fails that other modes of resolution of disputes are provided by the legislature in the different provisions of the Act. It is in the light of this philosophy underlying the provisions of the Act and this policy and principle to promote, as far as possible, settlement by negotiation and avoid adjudication, that the words used by the rule making authority in rule 53(2) must be construed and if that is done, there can be little doubt that further period may be mutually fixed between the employer and the employee even after the initial period of 15 days has expired. It is quite possible that even after the expiration of the initial period of 15 days, the employer and the employee may com e together and arrive at a settlement. Why should that be discouraged by compelling the employee to file an application under s. 78(1) (A) (a) (i) within three months of the expiration of the initial period of 15 days, on pain of his application becoming time barred. Such an interpretation would not advance the object and purpose of the Act. The employer and the employee may very well agree, even after the expiration of the initial period of 15 days, that they will try to negotiate a settlement and that would impliedly mean that during the time fixed by them for such negotiations, the employee should not rush to the Labour Court. It is only when such period mutually fixed by them expires without any settlement having been arrived at that a dispute can be deemed to arise, for adjudication of which the employee may approach the Labour Court under s. 78(1) (A) (a) (i). We are, therefore, of the view that further period for arriving at a settlement can be mutually fixed b y the employer and the employee even after the expiration of the initial period of 15 days and where such is the case, the dispute would be deemed to arise on the expiration of such further period, if within that time no settlement is arrived at between the parties. We should of course make it clear that prima facie it seems to us that such further period cannot be mutually fixed after three months have elapsed from the expiration of the initial period of 15 days and the application of the employee under s. 78(1)(A)(a)(i) has already become barred under s. 79(3)(a).It would, therefore, seem clear that if, as a result of what transpired before the Labour Commissioner, further period for arriving at a settlement in respect of the change desired by the respondent was mutually fixed between the appellant and the respondent, the dispute would not be deemed to have arisen till the expiration of such further period and in that event, the application made by the respondent on 7th June, 1973 would be within time. The question, however, is whether it can be said at all that further period was mutually fixed by the appellant and the respondent before the Labour Commissioner. We do not think this question can be answered in favour of the respondent. If we look at the application of the respondent, we do not find in it anything even remotely suggesting that further period for arriving at a settlement was mutually agreed upon between the appellant and the respondent. In the first place, there must be a specific period agreed upon between the parties. Here we do not find any averment of a specific period. Even if we construe the application of the respondent most liberally, the utmost we can extract from it is that adjournment must have been granted by the Labour Commissioner to the Labour Officer for the purpose of arriving at a settlement upto a specific date and that would indicate a specific period. The difficulty, however, still remains that there is no averment that such specific period was mutually fixed by the parties. The only averment made in the application of the respondent is that at the hearing before the Labour Commissioner, the Labour Officer of the appellant "took adjournment to make a compromise", but ultimately no compromise was arrived at. It is not even stated in the application that the respondent consented to the adjournment, so that the application for adjournment by the appellant and the consent to the adjournment by the respondent could be construed as an agreement mutually fixing further period for arriving at a settlement. There being absolutely no averment of further period being mutually fixed between the parties, it is difficult to see how the case of the respondent could be brought within the latter part of rule 53(2). It was never the case of the respondent that further period was mutually fixed and that saved his case from the bar of limitation. The relief that he asked for from the Labour Court as well as Industrial Court was condonation of delay but so far as this relief is concerned, the Labour Court has unfortunately no power to condone the delay and hence his request was rejected. We are, therefore, of the view that the High Court was in error in holding that the application made by the respondent under s. 78(1)(A)(a)(i) was within three months of the arising of the dispute and was hence not barred under s. 79(3) (a).
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the expiration of the initial period of 15 days. It must be remembered that the object of this provision is that, as far as possible, the employer and the employee should arrive at an agreement in respect of the change desired by the employee and it is only where an agreement is not possible that the employee should be allowed to approach the Labour Court. The provisions of the Act are intended to bring about settlement of disputes between the employer and the employees and so far as the methodology or mechanics of the resolution of such disputes is concerned, the greatest importance is attached by the legislature to settlement by negotiations. It is only where settlement through negotiations fails that other modes of resolution of disputes are provided by the legislature in the different provisions of the Act. It is in the light of this philosophy underlying the provisions of the Act and this policy and principle to promote, as far as possible, settlement by negotiation and avoid adjudication, that the words used by the rule making authority in rule 53(2) must be construed and if that is done, there can be little doubt that further period may be mutually fixed between the employer and the employee even after the initial period of 15 days has expired. It is quite possible that even after the expiration of the initial period of 15 days, the employer and the employee may com e together and arrive at a settlement. Why should that be discouraged by compelling the employee to file an application under s. 78(1) (A) (a) (i) within three months of the expiration of the initial period of 15 days, on pain of his application becoming time barred. Such an interpretation would not advance the object and purpose of the Act. The employer and the employee may very well agree, even after the expiration of the initial period of 15 days, that they will try to negotiate a settlement and that would impliedly mean that during the time fixed by them for such negotiations, the employee should not rush to the Labour Court. It is only when such period mutually fixed by them expires without any settlement having been arrived at that a dispute can be deemed to arise, for adjudication of which the employee may approach the Labour Court under s. 78(1) (A) (a) (i). We are, therefore, of the view that further period for arriving at a settlement can be mutually fixed b y the employer and the employee even after the expiration of the initial period of 15 days and where such is the case, the dispute would be deemed to arise on the expiration of such further period, if within that time no settlement is arrived at between the parties. We should of course make it clear that prima facie it seems to us that such further period cannot be mutually fixed after three months have elapsed from the expiration of the initial period of 15 days and the application of the employee under s. 78(1)(A)(a)(i) has already become barred under s. 79(3)(a).It would, therefore, seem clear that if, as a result of what transpired before the Labour Commissioner, further period for arriving at a settlement in respect of the change desired by the respondent was mutually fixed between the appellant and the respondent, the dispute would not be deemed to have arisen till the expiration of such further period and in that event, the application made by the respondent on 7th June, 1973 would be within time. The question, however, is whether it can be said at all that further period was mutually fixed by the appellant and the respondent before the Labour Commissioner. We do not think this question can be answered in favour of the respondent. If we look at the application of the respondent, we do not find in it anything even remotely suggesting that further period for arriving at a settlement was mutually agreed upon between the appellant and the respondent. In the first place, there must be a specific period agreed upon between the parties. Here we do not find any averment of a specific period. Even if we construe the application of the respondent most liberally, the utmost we can extract from it is that adjournment must have been granted by the Labour Commissioner to the Labour Officer for the purpose of arriving at a settlement upto a specific date and that would indicate a specific period. The difficulty, however, still remains that there is no averment that such specific period was mutually fixed by the parties. The only averment made in the application of the respondent is that at the hearing before the Labour Commissioner, the Labour Officer of the appellant "took adjournment to make a compromise", but ultimately no compromise was arrived at. It is not even stated in the application that the respondent consented to the adjournment, so that the application for adjournment by the appellant and the consent to the adjournment by the respondent could be construed as an agreement mutually fixing further period for arriving at a settlement. There being absolutely no averment of further period being mutually fixed between the parties, it is difficult to see how the case of the respondent could be brought within the latter part of rule 53(2). It was never the case of the respondent that further period was mutually fixed and that saved his case from the bar of limitation. The relief that he asked for from the Labour Court as well as Industrial Court was condonation of delay but so far as this relief is concerned, the Labour Court has unfortunately no power to condone the delay and hence his request was rejected. We are, therefore, of the view that the High Court was in error in holding that the application made by the respondent under s. 78(1)(A)(a)(i) was within three months of the arising of the dispute and was hence not barred under s. 79(3)
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Mohatta Brothers Vs. Bharat Suryodaya Mills Co. Ltd., Ahmedabad | find that in the statement of accounts of the plaintiff-firm it is Shashi Kumar and not Satyavati who is shown to have 4 Annas share in the plaintiff-firm. Entries show that Shashi Kumar shared the profits as well as the losses in that proportion. The significant thing which emerges from the account books is that Satyavati was not shown as the person entitled to 4 Annas share in the partnership firm.Soon after the present suit had been filed, on application filed on behalf of the defendants under order XXX, Rule 2 of the Code of Civil Procedure, names of the partners of the plaintiff-firm were declared on behalf of the plaintiff-firm. In the declaration the name of Satyavati was not mentioned as one of the partners of the plaintiff firm. The question as to who should share the profits of the plaintiff-firm and should be otherwise entitled to its assets is essentially a matter for the partners of the plaintiff-firm. The facts of the case disclose that the partners of the plaintiff-firm have agreed between themselves that so far as the 4 Annas share in the profits and assets of the plaintiff-firm are concerned, it would be Shashi Kumar who would be entitled to the same. That position is also accepted by Satyavati in the applications in connection with the registration of the firm to the income-tax authorities. It would, in our opinion, be a wholly untenable plea for the defendant from whom money is claimed, to urge that even though Satyavati as well as the other partners claim that it is not she but her son Shashi Kumar who is entitled to 4 Annas share in the partnership, the court should hold that it is Satyavati who is entitled to that share. The distinction between a plaintiff-firm and a defendant-firm in the above context should not be lost sight of. So far as a defendant-firm against whom a suit for recovery of money has been filed is concerned, it would be open to the plaintiff to prove that a person is a partner of the defendant firm despite the denial of that fact by that person as well as the other partners of the defendant-firm. The reason fo r that is that a creditor of a defendant-firm can, except in some cases to which it is not necessary to refer, also proceed against the personal assets of each and every partner. Such a consideration does not hold good when the dispute relates to t he question as to who are the partners of the plaintiff-firm.It has been mentioned above that Shivratan stated in the course of his deposition that partnership deed dated October 24, 1949 had not been acted upon. This statement is against the pecuniary interest of Shivratan. It is plain that if Satyavati were a partner of the plaintiff-firm, Shivratan and other partners would have to bear losses to the extent of 12 Annas in a rupee. As against that, if Shashi Kumar be en titled to share profits to the extent of 4 Annas in a rupee and be not liable for the losses, in such an event Shivratan and other partners A would have to bear the losses to the full extent of 16 Annas in a rupee. If despite that fact, Shivratan has deposed that Satayvati did not be come a partner of the plaintiff-firm and the deed of partnership dated October 24, 1949 was not acted upon, his statement in this respect should not, in our view, be rejected, especially when there is over r whelming documentary evidence which lends support to the above statement.12. The entire course of dealings shows that despite the execution of the deed of partnership dated October 24, 1949, the said partnership deed was not acted upon and t he relations between the partners of the - plaintiff-firm continued to be governed by the deed - of partnership dated May 19, 1949 according to which it was not Satyavati but her son Shashi Kumar who was entitled to four Annas share in the partnership. The question, to which a reference has been made in the course of arguments, as to when it was decided not to act upon the deed of partnership dated October 24, 1949 is hardly of much importance, the material thing is that the said deed w as not given effect to or acted upon by the parties concerned. The firm which came into existence as per deed of partnership dated May 19, 1949 was admittedly registered under the Indian Partnership Act and its partners were shown in the Register of Firms.Looking to all the facts we are of the opinion that the trial court took a correct view of the matter in so far as it held that Satyavati had not become a partner of the plaintiff-firm and that the deed of partner ship dated October 24, 1949 had not been acted upon. The High Court, in our opinion, was in error in reversing that finding of the trial court. In view of this conclusion of ours, it is not necessary to go into the legal question as to, what should be the proper const ruction of section 69(2) of the Indian Partnership Act. Learned counsel for the parties are agreed that such question would arise only in case we had marked the finding of the High Court that Satyavati had become a partner of the plaintiff-firm and that the deed of partnership dated October 24, 1949 had been acted upon.13. The High Court did not deal with the merits of the cross-appeals filed by the parties in view of its finding on the point as to whether Satyavati had become partner of the plaintiff-firm and the construction it placed upon section 69(2) of the Indian Partnership Act. In the light of the conclusion we have arrived at, it becomes essential to remand the matter to the High Court so that the cross appeals filed by the parties may be disposed of on merits. | 1[ds]The facts of the case disclose that the partners of the plaintiff-firm have agreed between themselves that so far as the 4 Annas share in the profits and assets of the plaintiff-firm are concerned, it would be Shashi Kumar who would be entitled to the same. That position is also accepted by Satyavati in the applications in connection with the registration of the firm to the income-tax authorities. It would, in our opinion, be a wholly untenable plea for the defendant from whom money is claimed, to urge that even though Satyavati as well as the other partners claim that it is not she but her son Shashi Kumar who is entitled to 4 Annas share in the partnership, the court should hold that it is Satyavati who is entitled to that share. The distinction between a plaintiff-firm and a defendant-firm in the above context should not be lost sight of. So far as a defendant-firm against whom a suit for recovery of money has been filed is concerned, it would be open to the plaintiff to prove that a person is a partner of the defendant firm despite the denial of that fact by that person as well as the other partners of the defendant-firm. The reason fo r that is that a creditor of a defendant-firm can, except in some cases to which it is not necessary to refer, also proceed against the personal assets of each and every partner. Such a consideration does not hold good when the dispute relates to t he question as to who are the partners of the plaintiff-firm.It has been mentioned above that Shivratan stated in the course of his deposition that partnership deed dated October 24, 1949 had not been acted upon. This statement is against the pecuniary interest of Shivratan. It is plain that if Satyavati were a partner of the plaintiff-firm, Shivratan and other partners would have to bear losses to the extent of 12 Annas in a rupee. As against that, if Shashi Kumar be en titled to share profits to the extent of 4 Annas in a rupee and be not liable for the losses, in such an event Shivratan and other partners A would have to bear the losses to the full extent of 16 Annas in a rupee. If despite that fact, Shivratan has deposed that Satayvati did not be come a partner of the plaintiff-firm and the deed of partnership dated October 24, 1949 was not acted upon, his statement in this respect should not, in our view, be rejected, especially when there is over r whelming documentary evidence which lends support to the aboveentire course of dealings shows that despite the execution of the deed of partnership dated October 24, 1949, the said partnership deed was not acted upon and t he relations between the partners of the - plaintiff-firm continued to be governed by the deed - of partnership dated May 19, 1949 according to which it was not Satyavati but her son Shashi Kumar who was entitled to four Annas share in the partnership. The question, to which a reference has been made in the course of arguments, as to when it was decided not to act upon the deed of partnership dated October 24, 1949 is hardly of much importance, the material thing is that the said deed w as not given effect to or acted upon by the parties concerned. The firm which came into existence as per deed of partnership dated May 19, 1949 was admittedly registered under the Indian Partnership Act and its partners were shown in the Register of Firms.Looking to all the facts we are of the opinion that the trial court took a correct view of the matter in so far as it held that Satyavati had not become a partner of the plaintiff-firm and that the deed of partner ship dated October 24, 1949 had not been acted upon. The High Court, in our opinion, was in error in reversing that finding of the trial court. In view of this conclusion of ours, it is not necessary to go into the legal question as to, what should be the proper const ruction of section 69(2) of the Indian Partnership Act. Learned counsel for the parties are agreed that such question would arise only in case we had marked the finding of the High Court that Satyavati had become a partner of the plaintiff-firm and that the deed of partnership dated October 24, 1949 had been actedHigh Court did not deal with the merits of the cross-appeals filed by the parties in view of its finding on the point as to whether Satyavati had become partner of the plaintiff-firm and the construction it placed upon section 69(2) of the Indian Partnership Act. In the light of the conclusion we have arrived at, it becomes essential to remand the matter to the High Court so that the cross appeals filed by the parties may be disposed of on merits. | 1 | 4,665 | 894 | ### Instruction:
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find that in the statement of accounts of the plaintiff-firm it is Shashi Kumar and not Satyavati who is shown to have 4 Annas share in the plaintiff-firm. Entries show that Shashi Kumar shared the profits as well as the losses in that proportion. The significant thing which emerges from the account books is that Satyavati was not shown as the person entitled to 4 Annas share in the partnership firm.Soon after the present suit had been filed, on application filed on behalf of the defendants under order XXX, Rule 2 of the Code of Civil Procedure, names of the partners of the plaintiff-firm were declared on behalf of the plaintiff-firm. In the declaration the name of Satyavati was not mentioned as one of the partners of the plaintiff firm. The question as to who should share the profits of the plaintiff-firm and should be otherwise entitled to its assets is essentially a matter for the partners of the plaintiff-firm. The facts of the case disclose that the partners of the plaintiff-firm have agreed between themselves that so far as the 4 Annas share in the profits and assets of the plaintiff-firm are concerned, it would be Shashi Kumar who would be entitled to the same. That position is also accepted by Satyavati in the applications in connection with the registration of the firm to the income-tax authorities. It would, in our opinion, be a wholly untenable plea for the defendant from whom money is claimed, to urge that even though Satyavati as well as the other partners claim that it is not she but her son Shashi Kumar who is entitled to 4 Annas share in the partnership, the court should hold that it is Satyavati who is entitled to that share. The distinction between a plaintiff-firm and a defendant-firm in the above context should not be lost sight of. So far as a defendant-firm against whom a suit for recovery of money has been filed is concerned, it would be open to the plaintiff to prove that a person is a partner of the defendant firm despite the denial of that fact by that person as well as the other partners of the defendant-firm. The reason fo r that is that a creditor of a defendant-firm can, except in some cases to which it is not necessary to refer, also proceed against the personal assets of each and every partner. Such a consideration does not hold good when the dispute relates to t he question as to who are the partners of the plaintiff-firm.It has been mentioned above that Shivratan stated in the course of his deposition that partnership deed dated October 24, 1949 had not been acted upon. This statement is against the pecuniary interest of Shivratan. It is plain that if Satyavati were a partner of the plaintiff-firm, Shivratan and other partners would have to bear losses to the extent of 12 Annas in a rupee. As against that, if Shashi Kumar be en titled to share profits to the extent of 4 Annas in a rupee and be not liable for the losses, in such an event Shivratan and other partners A would have to bear the losses to the full extent of 16 Annas in a rupee. If despite that fact, Shivratan has deposed that Satayvati did not be come a partner of the plaintiff-firm and the deed of partnership dated October 24, 1949 was not acted upon, his statement in this respect should not, in our view, be rejected, especially when there is over r whelming documentary evidence which lends support to the above statement.12. The entire course of dealings shows that despite the execution of the deed of partnership dated October 24, 1949, the said partnership deed was not acted upon and t he relations between the partners of the - plaintiff-firm continued to be governed by the deed - of partnership dated May 19, 1949 according to which it was not Satyavati but her son Shashi Kumar who was entitled to four Annas share in the partnership. The question, to which a reference has been made in the course of arguments, as to when it was decided not to act upon the deed of partnership dated October 24, 1949 is hardly of much importance, the material thing is that the said deed w as not given effect to or acted upon by the parties concerned. The firm which came into existence as per deed of partnership dated May 19, 1949 was admittedly registered under the Indian Partnership Act and its partners were shown in the Register of Firms.Looking to all the facts we are of the opinion that the trial court took a correct view of the matter in so far as it held that Satyavati had not become a partner of the plaintiff-firm and that the deed of partner ship dated October 24, 1949 had not been acted upon. The High Court, in our opinion, was in error in reversing that finding of the trial court. In view of this conclusion of ours, it is not necessary to go into the legal question as to, what should be the proper const ruction of section 69(2) of the Indian Partnership Act. Learned counsel for the parties are agreed that such question would arise only in case we had marked the finding of the High Court that Satyavati had become a partner of the plaintiff-firm and that the deed of partnership dated October 24, 1949 had been acted upon.13. The High Court did not deal with the merits of the cross-appeals filed by the parties in view of its finding on the point as to whether Satyavati had become partner of the plaintiff-firm and the construction it placed upon section 69(2) of the Indian Partnership Act. In the light of the conclusion we have arrived at, it becomes essential to remand the matter to the High Court so that the cross appeals filed by the parties may be disposed of on merits.
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The facts of the case disclose that the partners of the plaintiff-firm have agreed between themselves that so far as the 4 Annas share in the profits and assets of the plaintiff-firm are concerned, it would be Shashi Kumar who would be entitled to the same. That position is also accepted by Satyavati in the applications in connection with the registration of the firm to the income-tax authorities. It would, in our opinion, be a wholly untenable plea for the defendant from whom money is claimed, to urge that even though Satyavati as well as the other partners claim that it is not she but her son Shashi Kumar who is entitled to 4 Annas share in the partnership, the court should hold that it is Satyavati who is entitled to that share. The distinction between a plaintiff-firm and a defendant-firm in the above context should not be lost sight of. So far as a defendant-firm against whom a suit for recovery of money has been filed is concerned, it would be open to the plaintiff to prove that a person is a partner of the defendant firm despite the denial of that fact by that person as well as the other partners of the defendant-firm. The reason fo r that is that a creditor of a defendant-firm can, except in some cases to which it is not necessary to refer, also proceed against the personal assets of each and every partner. Such a consideration does not hold good when the dispute relates to t he question as to who are the partners of the plaintiff-firm.It has been mentioned above that Shivratan stated in the course of his deposition that partnership deed dated October 24, 1949 had not been acted upon. This statement is against the pecuniary interest of Shivratan. It is plain that if Satyavati were a partner of the plaintiff-firm, Shivratan and other partners would have to bear losses to the extent of 12 Annas in a rupee. As against that, if Shashi Kumar be en titled to share profits to the extent of 4 Annas in a rupee and be not liable for the losses, in such an event Shivratan and other partners A would have to bear the losses to the full extent of 16 Annas in a rupee. If despite that fact, Shivratan has deposed that Satayvati did not be come a partner of the plaintiff-firm and the deed of partnership dated October 24, 1949 was not acted upon, his statement in this respect should not, in our view, be rejected, especially when there is over r whelming documentary evidence which lends support to the aboveentire course of dealings shows that despite the execution of the deed of partnership dated October 24, 1949, the said partnership deed was not acted upon and t he relations between the partners of the - plaintiff-firm continued to be governed by the deed - of partnership dated May 19, 1949 according to which it was not Satyavati but her son Shashi Kumar who was entitled to four Annas share in the partnership. The question, to which a reference has been made in the course of arguments, as to when it was decided not to act upon the deed of partnership dated October 24, 1949 is hardly of much importance, the material thing is that the said deed w as not given effect to or acted upon by the parties concerned. The firm which came into existence as per deed of partnership dated May 19, 1949 was admittedly registered under the Indian Partnership Act and its partners were shown in the Register of Firms.Looking to all the facts we are of the opinion that the trial court took a correct view of the matter in so far as it held that Satyavati had not become a partner of the plaintiff-firm and that the deed of partner ship dated October 24, 1949 had not been acted upon. The High Court, in our opinion, was in error in reversing that finding of the trial court. In view of this conclusion of ours, it is not necessary to go into the legal question as to, what should be the proper const ruction of section 69(2) of the Indian Partnership Act. Learned counsel for the parties are agreed that such question would arise only in case we had marked the finding of the High Court that Satyavati had become a partner of the plaintiff-firm and that the deed of partnership dated October 24, 1949 had been actedHigh Court did not deal with the merits of the cross-appeals filed by the parties in view of its finding on the point as to whether Satyavati had become partner of the plaintiff-firm and the construction it placed upon section 69(2) of the Indian Partnership Act. In the light of the conclusion we have arrived at, it becomes essential to remand the matter to the High Court so that the cross appeals filed by the parties may be disposed of on merits.
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Mardia Chemicals Ltd. & Others Vs. Union of India & Others | recovery is initiated. So as to demonstrate that the reply of the borrower to the notice under Section 13(2) of the Act has been considered applying mind to it. The reasons howsoever brief that may be for not accepting the objections, if raised in the reply, must be communicated to the borrower. True, presumption is in favour of validity of an enactment and a legislation may not be declared unconstitutional lightly more so, in the matters relating to fiscal and economic policies resorted to in the public interest, but while resorting to such legislation it would be necessary to see that the persons aggrieved get a fair deal at the hands of those who have been vested with the powers to enforce drastic steps to make recovery.78. It was sought to be argued that fairness cannot be a one way street. The plea of absence of natural justice lies ill in the mouth of chronic defaulters who have not paid the principal amounts admittedly due to the banks. The said argument pre-supposes admission of the liability by the borrowers and all of them to be chronic defaulters. It would only be pre-judging an issue. We hope it was not meant to be said that all those who defaulted according to the banks and financial institutions must be condemned unheard who might not deserve any hearing to place their side of the case, unless they must go through the crushing pre-conditions of deposit of 75% of the amount demanded over and above their secured assets already having been taken possession of. We feel this can well be one example of hitting below the belt.79. Some submissions have been made pointing out that in certain circumstances it would not be clear as to in what manner the provisions of the Act would be workable. We feel the objections pointed out are not such which render the statute invalid or unconstitutional. Such problems about working of any particular provision of the Act in any particular factual situation, may be considered as and when it may arise. We, therefore, do not think it necessary to go into those questions.80. Under the Act in consideration, we find that before taking action a notice of 60 days is required to be given and after the measures under Section 13(4) of the Act have been taken, a mechanism has been provided under Section 17 of the Act to approach the Debt Recovery Tribunal. The above noted provisions are for the purposes of giving some reasonable protection to the borrower. Viewing the matter in the above perspective, we find what emerges from different provisions of the Act, is as follows: 1. Under Sub-section (2) of Section 13 it is incumbent upon the secured creditor to serve 60 days notice before proceeding to take any of the measures as provided under Sub-section (4) of Section 13 of the Act. After service of notice, if the borrower raises any objection or places facts for consideration of the secured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief they may be, must be communicated to the borrower. In connection with this conclusion we have already held a discussion in the earlier part of the judgment. The reasons so communicated shall only be for the purposes of the information/knowledge of the borrower without giving rise to any right to approach the Debt Recovery Tribunal under Section 17 of the Act, at that stage.2. As already discussed earlier, on measures having been taken under Sub-section (4) of Section 13 and before the date of sale/auction of the property it would be open the borrower to file an appeal (petition) under Section 17 of the Act before the Debt Recovery Tribunal.3. That the Tribunal in exercise of its ancillary powers shall have jurisdiction to pass any stay/interim order subject to the condition as it may deem fit and proper to impose.4. In view of the discussion already held on this behalf, we find that the requirement of deposit of 75% of amount claimed before entertaining an appeal (petition) under Section 17 of the Act is an oppressive, onerous and arbitrary condition against all the canons of reasonableness. Such a condition is invalid and it is liable to be struck down.5. As discussed earlier in this judgment, we find that it will be open to maintain a civil suit in Civil Court, within the narrow scope and on the limited grounds on which they are permissible, in the matters relating to an English mortgage enforceable without intervention of the Court. 81. In view of the discussion held in the judgment and the findings and directions contained in the preceding paragraphs, we hold that the borrowers would get a reasonably fair deal and opportunity to get the matter adjudicated upon before the Debt Recovery Tribunal. The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital liquidity and resources to help in growth of economy of the country and welfare of the people in general which would subserve the public interest.82. We, therefore, subject to what is provided in paragraph 80 above, uphold the validity of the Act and its provisions except that of Sub-section (2) of Section 17 of the Act, which is declared ultra vires of Article 14 of the Constitution of India.83. Before we part with the case, we would like to observe that where a secured creditor has taken action under Section 13(4) of the Act, in such cases it would be open to borrowers to file appeals under Section 17 of the Act within the limitation as prescribed therefor, to be counted with effect from today. 84. | 1[ds]50. It has also been submitted that an appeal is entertainable before the Debts Recovery Tribunal only after such measures as provided in Sub-section (4) of Section 13 are taken and Section 34 bars to entertain any proceeding in respect of a matter which the Debts Recovery Tribunal or the Appellate Tribunal is empowered to determine. Thus before any action or measure is taken under Sub-section (4) of Section 13, it is submitted by Mr. Salve one of the Counsel for respondents that there would be no bar to approach the Civil Court. Therefore, it cannot be said no remedy is available to the borrowers. We, however, find that this contention as advanced by Mr. Salve is not correct. A full reading of Section 34 shows that the jurisdiction of the Civil Court is barred in respect of matters which a Debts Recovery Tribunal or Appellate Tribunal is empowered to determine in respect of any action takento be taken in pursuance of any power conferred under thisThat is to say the prohibition covers even matters which can be taken cognizance of by the Debts Recovery Tribunal though no measure in that direction has so far been taken under Sub-section (4) of Section 13. It is further to be noted that the bar of jurisdiction is in respect of a proceeding which matter may be taken to the Tribunal. Therefore, any matter in respect of which an action may be taken even later on the Civil Court shall have no jurisdiction to entertain any proceeding thereof. The bar of Civil Court thus applies to all such matters which may be taken cognizance of by the Debts Recovery Tribunal, apart from those matters in which measures have already been taken under Sub-section (4) of Section 13.51. However, to a very limited extent jurisdiction of the Civil Court can also be invoked, where for example, the action of the secured creditor is alleged to be fraudulent or their claim may be so absurd and untenable which may not require any probe, whatsoever or to say precisely to the extent the scope is permissible to bring an action in the Civil Court in the cases of English mortgages. We find such a scope having been recognized in the two decisions of the Madras High Court which have been relied upon heavily by the learned Attorney General as well appearing for the Union of India, namely V. Narasimhachariar (supra), p. 135 at p. 141 and 144, a judgment of the learned SingleThe other decision on which reliance has been placed is A. Batcha Saheb v. Nariman K. Irani & Anr., AIR 1955 Madras DB 491 more particularly on paragraph 8.53. We also find it appropriate to mention at this stage that in reply to submission made by Mr. Dholakia on behalf of the guarantors that even though a guarantor may stand discharged as envisaged under Sections 133 and 135 of the Indian Contracts Act e.g., where any variance in terms of the contract has been made without his consent, then too guarantor may be proceeded against and he will have no right to raise an objection, before measures have been taken against him under Section 13(4) of the Act nor he could approach the Civil Court. It is submitted by the respondent in such cases Civil Court may have jurisdiction to entertain the case as character as a guarantor itself is denied.54. In so far the argument advanced on behalf of the petitioners that by virtue of the provisions contained under Sub-section (4) of Section 13 the borrowers lose their right of redemption of the mortagage. In reply it is submitted that rather such a right is preserved under Sub-section (8) of Section 13 of the Act. Where a borrower tenders to the creditor the amount due with costs and expenses incurred, no further steps for sale of the property are to take place. In this connection, a reference has also been made by the learned Attorney General to a decision reported in 1977 (3) SCC p. 247, Naraindas Kavsondas v. S.A. Katam, which provides that a mortgagor can exercise his right of redemption any time until the final sale of the property by execution of a conveyance. Mr. Sibal, however, submits that it is the amount due according to the secured creditor which shall have to be deposited to redeem the property. May be so, some difference regarding the amount due may be there but it cannot be said that right of redemption of property is completely lost. In cases where no such dispute is there, the right can be exercised and in other cases the question of difference in amount may be kept open and got decided before sale of property.55. We may then turn to the arguments raised on behalf of the petitioners that the remedy before the Debts Recovery Tribunal under Section 17 of the Act, is illusory burdened with onerous and oppressive condition of deposit of 75% of the amount of the demand notice before an appeal can be entertained by the Tribunal. We feel that it would be difficult to brush aside the challenge made to the condition of such a deposit. Sub-section (2) of Section 17 itself says that no appeal shall be entertainable unless the borrower has deposited the aforesaid sum of amount claimed. Much stress has been given in reply to the proviso to Sub-section (2) of Section 17, according to which the Tribunal has power to waive or reduce the amount. While waiving the condition of deposit the amount or reducing it, the Tribunal is required to record reasons for the same. It is submitted for the respondents that in an appropriate case, the DRT which is presided over by a Member of a Higher Judicial Service, would exercise its discretion and may waive or reduce the amount required to be deposited in deserving cases. It is, therefore, not an absolute condition which must in all cases and all circumstances be fulfilled irrespective of the special features of a particular case.56. The contention of the petitioners is that in the first place such an oppressive provision should not have been made at all. It works as a deterrent or as a disabling provision impeding access to a Forum which is meant for redressal of the grievance of a borrower. It is submitted where the possession of the secured assets has already been taken over or the management of the secured assets of the borrower including the right to transfer the same, in that event it would not at all be necessary to burden the borrower doubly with deposit of 75% of the demand amount. In a situation where the possession of the secured assets have already been taken over or its management, it is highly unreasonable further to ask for 75% of the amount claimed before entertaining the grievance of the borrower.57. Secondly, it is submitted that, it would not be possible for a borrower to raise funds to make deposit of the huge amount of 75% of the demand, once he is deprived of the possession/management of the property namely, the secured assets. Therefore, the condition of deposit is a condition of impossibility which renders the remedy made available before the DRT as nugatory and illusory. The learned Attorney General refutes the aforesaid contention. It is further submitted that such a condition of pre-deposit has been held to be valid by this Court earlier and a reference has been made to a decision reported in 1975 (2) SCC p. 175 at p. 202, Anant Mills Co. Ltd. v. State of Gujarat, to submit that such a provision is made to regulate the exercise of the right of an appeal conferred upon a person. The purpose is that right of appeal may not be abused by any recalcitrant party and there may not be any difficulty in enforcing the order appealed against if ultimately it is dismissed and there may be speedy recovery of the amount of tax due to the Corporation.58. In another decision relied upon reported in 1980 (Supp.) SCC p. 574, Seth Nandlal v. State of Haryana, there was no provision for a waiver or reduction of amount of pre-deposit, it is submitted, even that the provision was held to be valid as the purpose was to prevent frivolous appeals and revisions which impedes the implementation of the ceiling policy. Referring to yet another decision reported in 1988 (4) SCC p. 402, Vijay Prakash D. Mehta and Anr. v. Collector of Customs (Preventive) Bombay, it is submitted that right to appeal is neither an absolute right nor an ingredient of natural justice which principles are to be followed in judicial and quasi-judicial proceedings. A right of appeal is a statutory right and it can be circumscribed by the conditions. We also find that there are further observations to the effect that the condition is for the purpose to act in torrorem to make the people comply with the provisions of the law. 1993 (1) SCC p. 22, Shyam Kishore & Ors. v. Municipal Corporation of Delhi, has been referred to submit that a similar provision was upheld without there being any provision for waiver of the condition. The submission is that such a provision as that of pre-deposit before maintaining an appeal is not unknown to law and there are several other statutes containing similar provisions. Emphasis is on the provision of waiver or reduction of the amount required to be paid which, it is submitted, strikes a balance between the right of a person to appeal and the right of the person appealed against for speedy recovery of his dues.59. We may like to observe that proceedings under Section 17 of the Act, in fact are not appellate proceedings. It seems to be a misnomer. In fact it is the initial action which is brought before a Forum as prescribed under the Act, raising grievance against the action or measures taken by one of the parties to the contract. It is the stage of initial proceeding like filing a suit in Civil Court. As a matter of fact proceedings under Section 17 of the Act are in lieu of a civil suit which remedy is ordinarily available but for the bar under Section 34 of the Act in the present case. We may refer to a decision of this Court reported in (1974) 2 SCC 393 , Smt. Ganga Bai v. Vijay Kumar and Ors., where in respect of original and appellate proceedings a distinction has beenThe requirement of pre-deposit of any amount at the first instance of proceedings is not to be found in any of the decisions cited on behalf of the respondent. All these cases relate to appeals. The amount of deposit of 75% of the demand, at the initial proceeding itself sounds unreasonable and oppressive more particularly when the secured assets/the management thereof along with the right to transfer such interest has been taken over by the secured creditor or in some cases property is also sold. Requirement of deposit of such a heavy amount on basis of one sided claim alone, cannot be said to be a reasonable condition at the first instance itself before start of adjudication of the dispute. Merely giving power to the Tribunal to waive or reduce the amount, does not cure the inherent infirmity leaning one-sidedly in favour of the party, who, so far has alone been the party to decide the amount and the fact of default and classifying the dues as NPAs without participation/association of the borrower in the process. Such an onerous and oppressive condition should not be left operative in expectation of reasonable exercise of discretion by the concerned authority. Placed in a situation as indicated above, where it may not be possible for the borrower to raise any amount to make the deposit, his secured assets having already been taken possession of or sold, such a rider to approach the Tribunal at the first instance of proceedings, captioned as appeal, renders the remedy illusory and nugatory.61. In the case of Seth Nandlal (supra), while considering the question of validity of pre-deposit before availing the right of appeal the Court heldof appeal is a creature of the statute and while granting the right the Legislature can impose conditions for the exercise of such right so long as the conditions are not so onerous as to amount to unreasonable restrictions rendering the right almost illusory.(emphasis supplied). While making said observation this Court referred to the decision in the case of Anant Mills Co. Ltd. (supra). In both the above noted decisions this Court had negated the plea raised against pre-deposit but in the case of Seth Nandlal (supra) it was found that the condition was not so onerous since the amount sought to be deposited was meagre and that too was confined to the land holding tax payable in respect of the disputed area i.e. the area or part thereof which is declared surplus by the Prescribed Authority (emphasis supplied) after leaving the permissible area to the appellant. In the above circumstances it was found that even in the absence of a provision conferring discretion on the Appellate Authority to waive or reduce the amount of pre-deposit, it was considered to be valid, for the two reasons indicated above. The facts of the case in hand are just otherwise.62. As indicated earlier, the position of the appeal under Section 17 of the Act is like that of a suit in the Court of the first instance under the Code of Civil Procedure. No doubt in suits also it is permissible, in given facts and circumstances and under the provisions of the law to attach the property before a decree is passed or to appoint a receiver and to make a provision by way of interim measure in respect of the property in suit. But for obtaining such orders a case for the same is to be made out in accordance with the relevant provisions under the law. There is no such provision under the Act.63. Yet another justification which has been sought to be given for the requirement of deposit is that the secured assets which may be taken possession of or sold may fall short of dues therefore such a deposit may be necessary. We find no merit in this submission too. In such an eventuality the recourse may have to be taken to Sub-section (10) of Section 13 where a petition may have to be filed before the Tribunal for the purpose of making up of the short-fall.64. The condition of pre-deposit in the present case is bad rendering the remedy illusory on the grounds that, (i) it is imposed while approaching the adjudicating authority of the first instance, not in appeal; (ii) there is no determination of the amount due as yet; (iii) the secured assets or its management with transferable interest is already taken over and under control of the secured creditor; (iv) no special reason for double security in respect of an amount yet to be determined and settled; (v) 75% of the amount claimed by no means would be a meagre amount; (vi) it will leave the borrower in a position where it would not be possible for him to raise any funds to make deposit of 75% of the undetermined demand. Such conditions are not alone onerous and oppressive but also unreasonable and arbitrary. Therefore, in our view, Sub-section (2) of Section 17 of the Act is unreasonable, arbitrary and violative of Article 14 of the Constitution.65. Mr. Salve, learned Senior Counsel, appearing on behalf of the respondents, submits that so far it relates to the provisions as contained under Section 9 of the Act, it is for the purposes of assets reconstruction. The steps as provided to be taken for the purpose, are different from those provided in Chapter III relating to enforcement of security interest contained in Section 13 of the Act. Reconstruction companies are separately registered for the purpose according to the guidelines of the Reserve Bank of India. It is for the purpose of proper management of the business of the borrower. It is aimed at continuance of the business of the company by resorting to the measure as provided under Section 9 of the Act. It is submitted that the apprehensions as expressed that the defaulting party may set up an asset reconstruction company is misconceived nor there is any substance in the submission that company in default may constitute such a company to defeat the interest of the creditor. A reconstruction company is required to be registered and the Reserve Bank of India is the authority to issue such a certificate. In the guidelines framed by the Reserve Bank of India enough safeguards have been provided to see that the persons setting up such a company are not directly or indirectly in the management of the asset reconstruction of the borrower. What is envisaged under Section 9 is, the taking over of the management of the business of the borrower company and the provisions as contained under Section 15 of the Act are referable to Section 9 and not to Section 13 of the Act. He has further submitted that the restrictions against legal remedy is relating to measures taken under Section 13 of the Act and not under Section 9 of the Act for reconstruction of the assets of a borrowing company. A reconstruction company by the method of reconstruction of the debt, manages the affair in a manner so as to revive the company and liquidate the debts to whomsoever they may be due.66. On behalf of the petitioners one of the contentions which has been forcefully raised is that existing rights of private parties under a contract cannot be interfered with, more particularly putting one party to an advantageous position over the other. For example, in the present case, in a matter of private contract between the borrower and the financing bank or institution through impugned legislation rights of the borrowers have been curtailed and enforcement of secured assets has been provided for without intervention of the Court and above all depriving them the remedy available under the law by approaching to the Civil Court. Such a law, it is submitted, is not envisaged in any civilized society governed by rule of law. As discussed earlier as well, it may be observed that though the transaction may have a character of a private contract yet the question of great importance behind such transactions as a whole having far reaching effect on the economy of the country cannot be ignored, purely restricting it to individual transactions more particularly when financing is through banks and financial institutions utilizing the money of the people in general namely, the depositors in the banks and public money at the disposal of the financial institutions. Therefore, wherever public interest to such a large extent is involved and it may become necessary to achieve an object which serves the public purposes, individual rights may have to give way. Public interest has always been considered to be above the private interest. Interest of an individual may, to some extent, be affected but it cannot have the potential of taking over the public interest having an impact in the socio-economic drive of the country. The two aspects are inter-twined which are difficult to be separated. There have been many instances where existing rights of the individuals have been affected by legislative measures taken in public interest. Certain decisions which have been relied on behalf of the respondents, on the point are 1951 SCR p. 292, Ramaswamy Aiyengar v. Kailasa Thevar. In that case by enacting the MadrasRelief Act, relief was given to the debtors who were agriculturists as a class, by sealing down their debts. The validity of the Act was upheld though it affected the individual interest of creditors. In Dahya Lala v. Rasul Mohd. Abdul Rahim, 1963 (3) SCR p. 1, the tenants under the Provisions of the Bombay Tenancy Act, 1939 were given protection against eviction and they were granted the status of protected tenant, who had cultivated the land personally six years prior to the prescribed date. It was found that the legislation was with the object of improving the economic condition of the peasants and for ensuring full and efficient use of land for agricultural purpose. By a statutory provision special benefit was conferred upon the tenants in Madras city where they had put up a building for residential or non-residential purposes and were saved from eviction, it did though affect the existing rights of the landlords. See also 1963 (Supp.) 1 SCR p. 282, Swami Motor Transports Pvt. Ltd. v. Mr. Sankraswamigal Mutt and Ravai & Co. v.K.G. Ramachandran, 1974 (1) SCC p. 424. Similarly it is also to be found that in the case reported in V (2001) SLT 154=III (2001) CLT 100 (SC)=2001 (5) SCC 546 , Kanshi Ram v. Lachhman, the law granting relief to the debtors protesting their property was upheld. Also see 1978 (2) SCC 1 , Pathumma v. State of Kerala, 1977 (2) SCC p.670, Fatehchand Himmatlal v. State of Maharashtra, 1962 (1) SCR 852 , Ramdhandas v. State of Punjab.67. It is well known that in different States Rent Control legislations were enacted providing safeguards to the sitting tenants as against the existing rights of the landlords, which before coming into force of such law were governed by contract between the private parties. Therefore, it is clear that it has always been held to be lawful, whenever it was necessary in the public interest to legislate irrespective of the fact that it may affect some individuals enjoying certain rights. In the present we find that case the unrealized dues of banking companies and financial institutions untilizing public money for advances were mounting and it was considered imperative in view of recommendations of experts committees to have such law which may provide speedier remedy before any major fiscal set back occurs and for improvement of general financial flow of money necessary for the economy of the country that the impugned Act was enacted. Undoubtedly such a legislation would be in the public interest and the individual interest shall be subservient to it. Even if a few borrowers are affected here and there, that would not impinge upon the validity of the Act which otherwise serves larger interest.68. The main thrust of the petitioners as indicated in the earlier part of this judgement to challenge the validity of the impugned enactment is that no adjudicatory mechanism is available to the borrower to ventilate his grievance through an independent adjudicatory authority. Access to the justice, it is submitted, is hall-mark of our system. Section 34 of the Act bars the jurisdiction of the Civil Courts to entertain a suit in matters of recovery of loans. The remedy of appeal available under the Act as contained in Section 17 can be availed only after measures have already been taken by the secured creditor under Sub-section (4) of Section 13 of the Act which includes sale of the secured assets, taking over its management and all transferable rights thereto. Virtually it is no remedy at all also in view of the onerous condition of deposit of 75% of the claim of the secured creditor. Before filing an appeal under Section 17 of the Act, decision is to be taken in respect of all matters by the bank or financial institution itself which can hardly be said to be an independent agency rather they are a party to the transaction having unilateral power to initiate action under Sub-section (4) of Section 13 of the Act. So far remedy under Article 226 of the Constitution of India is concerned, the submission is that it may not always be available since the dispute may be only between two private parties, the banking companies, co-operative Banks or financial institutions, foreign banks, some of them may not be authorities within the meaning of Article 12 of the Constitution of India against whom a writ petition could be maintainable. Thus the position that emerges is that a borrower is virtually left with no remedy. Where access to the Court is prohibited and no proper adjudicatory mechanism is provided such a law is unconstitutional and cannot survive. In support of the aforesaid contentions besides others, reliance has particularly been placed upon a case reported in III (1997) CLT 114 (SC)=1997 (3) SCC p. 261, L. Chandrakumar v. Union India & Ors., and IV (2003) SLT 810=III (2003) CLT 133 (SC)=2003 (6) SCC 675 , Surya Dev Rai v. Ram Chander Rai & Ors. A reference has also been made to the decision of Kihoto Hollohan (supra). In the case of L. Chandra Kumar (supra) it is held, some adjudicatory process through an independent agency is essential for determining the rights of the parties more particularly when the consequences which flow from the offending Act defeat the civil rights of a party.69. On behalf of respondents time and again stress has been given on the contention that in a contractual matter between the two private parties they are supposed to act in terms of the contract and no question of compliance with the principles of natural justice arises nor the question of judicial review of such actions need to be provided for. However, at the very outset, it may be pointed that the contract between the parties as in the present cases, is no more as private as sought to be asserted on behalf of the respondents. If that was so in that event parties would be at liberty to seek redressal of their grievances on account of breach of contract or otherwise taking recourse to the normal process of laws available, by approaching the ordinary Civil Courts. But we find that a contract which has been entered into between the two private parties, in some respects has been superseded by the statutory provisions or it may be said that such contracts are now governed by the statutory provisions relating to recovery of debts and bar of jurisdiction of the Civil Court to entertain any dispute in respect of such matters. Hence, it cannot be pleaded that the petitioners cannot complain of the conduct of the banking companies and financial institutions for whatever goes in between the two is absolutely a matter of contract between private parties, therefore, no adjudication may be necessary.70. At this stage we may also take note of the arguments raised on behalf of the petitioners that in the present day world concept ofliability has also developed which cannot be ignored. We have already referred to certain facts in relation to this point that at one stage a statement was made at the floor of the House that it was necessary to legislate onliability. No such Bill though seems to have been introduced. Certain decisions pertaining to the liability of the lenders have been cited on behalf of the petitioners and a few others by the learned Counsel for the respondents. Learned Counsel for the petitioners emphatically submitted that the Act is loaded against the borrowers and no provision regarding the liability of the lenders has been made in the Act. Given below are some of the cases on the point cited by the parties:KMC Co.v. Irving Trust Co., 757 F2d 752 (6th Cir. 1985), Palisades Properties, Inc. v. Brunetti, 44 NJ 117, 207 A2d 522, 531 (1965).71. Arguments have been advanced as to how far principles ofliability are applicable. Whatever be the position, however, it cannot be denied that the financial institutions namely, the lenders owe a duty to act fairly and in good faith. There has to be a fair dealing between the parties and the financing companies/institutions are not free to ignore performance of their part of the obligation as a party to the contract. They cannot be free from it. Irrespective of the fact as to whatever may have been held in decisions of some American Courts, in view of the facts and circumstances and the terms of the contract and other details relating to those matter, that may or may not strictly apply, nonetheless even in absence of any such decisions or legislation, it is incumbent upon such financial institutions to act fairly and in good faith complying with their part of obligations under the contract. This is also the basic principle of concept ofliability. It cannot be a one-sided affair shutting out all possible and reasonable remedies to the other party, namely borrowers and assume all drastic powers for speedier recovery of NPAs. Possessing more drastic powers calls for exercise of higher degree of good faith and fair play. The borrowers cannot be left remediless in case they have been wronged against or subjected to unfair treatment violating the terms and conditions of the contract. They can always plead in defence deficiencies on the part of the banks and financial institutions.72. Mr. Soli J. Sorabjee, learned Attorney General submits that basically there is a presumption in favour of the constitutionality of an enactment and unless it is found that a provision enacted results in palpably arbitrary consequences, Courts refrain from declaring the law invalid as legislated by the Legislature. In support of this contention, he has relied upon a decision of this Court reported in 1981 (4) SCC p. 675, R.K. Garg v. Union of India.In relation to the argument on behalf of the petitioners that they are entitled to be heard before a notice under Sub-section (2) of Section 13 is issued failing which there is denial of principles of natural justice, a reference has been made to certain decisions to submit that in every case, it is not necessary to make a provision for providing a hearing. For example, in the case of a licensing statute, see 1961 (3) SCR p. 135, Kishan Chand Arora (supra). The other decisions referred to are : 1963 (2) SCR p. 353; Lachhman Das v. State of Punjab, 1977 (2) SCC 256 at 262, Chairman, Board of Mining Examination v. Ramjee, and I (2002) SLT 571=2002 (3) SCC 496 at 504 para 7, Haryana Financial Corporation v. Jagdamba Oil Mills, to submit that concept of natural justice is not a strait jacket formula. It, on the other hand, depends upon the facts of the case, nature of the inquiry, the rules under which the Tribunal is acting and what is to be seen that no one should be hit below the belt. Relationship between the creditor and the debtor, it is submitted, is essentially in the realm of a contract.76. In regard to the submission made by the parties as indicated in preceding paragraphs, we would like to make it clear that issue of a notice to the debtor by the creditor does not attract the application of principles of natural justice. It is always open to tell the debtor what he owes to repay. No hearing can be demanded from the creditor at this stage. So far the provision of appeal is concerned, we have already discussed in the earlier part of the judgment that proceedings under Section 17 of the Act have been wrongly described as appeal before the Debt Recovery Tribunal. It is in fact a Forum where proceedings are originally initiated in case of any grievance against the creditor in respect of any measure taken under Sub-section (4) of Section 13 of the Act. Hence, the decisions on the point as to whether provision for an appeal is essential or not are not of any assistance in the facts of the present case.77. It is also true that till the stage of making of the demand and notice under Section 13(2) of the Act, no hearing can be claimed for by the borrower. But looking to the stringent nature of measures to be taken without intervention of Court with a bar to approach the Court or any other Forum at that stage, it becomes only reasonable that the secured creditor must bear in mind the say of the borrower before such a process of recovery is initiated. So as to demonstrate that the reply of the borrower to the notice under Section 13(2) of the Act has been considered applying mind to it. The reasons howsoever brief that may be for not accepting the objections, if raised in the reply, must be communicated to the borrower. True, presumption is in favour of validity of an enactment and a legislation may not be declared unconstitutional lightly more so, in the matters relating to fiscal and economic policies resorted to in the public interest, but while resorting to such legislation it would be necessary to see that the persons aggrieved get a fair deal at the hands of those who have been vested with the powers to enforce drastic steps to make recovery.78. It was sought to be argued that fairness cannot be a one way street. The plea of absence of natural justice lies ill in the mouth of chronic defaulters who have not paid the principal amounts admittedly due to the banks. The said argument pre-supposes admission of the liability by the borrowers and all of them to be chronic defaulters. It would only be pre-judging an issue. We hope it was not meant to be said that all those who defaulted according to the banks and financial institutions must be condemned unheard who might not deserve any hearing to place their side of the case, unless they must go through the crushing pre-conditions of deposit of 75% of the amount demanded over and above their secured assets already having been taken possession of. We feel this can well be one example of hitting below the belt.79. Some submissions have been made pointing out that in certain circumstances it would not be clear as to in what manner the provisions of the Act would be workable. We feel the objections pointed out are not such which render the statute invalid or unconstitutional. Such problems about working of any particular provision of the Act in any particular factual situation, may be considered as and when it may arise. We, therefore, do not think it necessary to go into those questions.80. Under the Act in consideration, we find that before taking action a notice of 60 days is required to be given and after the measures under Section 13(4) of the Act have been taken, a mechanism has been provided under Section 17 of the Act to approach the Debt Recovery Tribunal. The above noted provisions are for the purposes of giving some reasonable protection to the borrower. Viewing the matter in the above perspective, we find what emerges from different provisions of theIn view of the discussion held in the judgment and the findings and directions contained in the preceding paragraphs, we hold that the borrowers would get a reasonably fair deal and opportunity to get the matter adjudicated upon before the Debt Recovery Tribunal. The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital liquidity and resources to help in growth of economy of the country and welfare of the people in general which would subserve the public interest.82. We, therefore, subject to what is provided in paragraph 80 above, uphold the validity of the Act and its provisions except that of Sub-section (2) of Section 17 of the Act, which is declared ultra vires of Article 14 of the Constitution of India.83. Before we part with the case, we would like to observe that where a secured creditor has taken action under Section 13(4) of the Act, in such cases it would be open to borrowers to file appeals under Section 17 of the Act within the limitation as prescribed therefor, to be counted with effect from today. | 1 | 21,148 | 6,576 | ### Instruction:
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recovery is initiated. So as to demonstrate that the reply of the borrower to the notice under Section 13(2) of the Act has been considered applying mind to it. The reasons howsoever brief that may be for not accepting the objections, if raised in the reply, must be communicated to the borrower. True, presumption is in favour of validity of an enactment and a legislation may not be declared unconstitutional lightly more so, in the matters relating to fiscal and economic policies resorted to in the public interest, but while resorting to such legislation it would be necessary to see that the persons aggrieved get a fair deal at the hands of those who have been vested with the powers to enforce drastic steps to make recovery.78. It was sought to be argued that fairness cannot be a one way street. The plea of absence of natural justice lies ill in the mouth of chronic defaulters who have not paid the principal amounts admittedly due to the banks. The said argument pre-supposes admission of the liability by the borrowers and all of them to be chronic defaulters. It would only be pre-judging an issue. We hope it was not meant to be said that all those who defaulted according to the banks and financial institutions must be condemned unheard who might not deserve any hearing to place their side of the case, unless they must go through the crushing pre-conditions of deposit of 75% of the amount demanded over and above their secured assets already having been taken possession of. We feel this can well be one example of hitting below the belt.79. Some submissions have been made pointing out that in certain circumstances it would not be clear as to in what manner the provisions of the Act would be workable. We feel the objections pointed out are not such which render the statute invalid or unconstitutional. Such problems about working of any particular provision of the Act in any particular factual situation, may be considered as and when it may arise. We, therefore, do not think it necessary to go into those questions.80. Under the Act in consideration, we find that before taking action a notice of 60 days is required to be given and after the measures under Section 13(4) of the Act have been taken, a mechanism has been provided under Section 17 of the Act to approach the Debt Recovery Tribunal. The above noted provisions are for the purposes of giving some reasonable protection to the borrower. Viewing the matter in the above perspective, we find what emerges from different provisions of the Act, is as follows: 1. Under Sub-section (2) of Section 13 it is incumbent upon the secured creditor to serve 60 days notice before proceeding to take any of the measures as provided under Sub-section (4) of Section 13 of the Act. After service of notice, if the borrower raises any objection or places facts for consideration of the secured creditor, such reply to the notice must be considered with due application of mind and the reasons for not accepting the objections, howsoever brief they may be, must be communicated to the borrower. In connection with this conclusion we have already held a discussion in the earlier part of the judgment. The reasons so communicated shall only be for the purposes of the information/knowledge of the borrower without giving rise to any right to approach the Debt Recovery Tribunal under Section 17 of the Act, at that stage.2. As already discussed earlier, on measures having been taken under Sub-section (4) of Section 13 and before the date of sale/auction of the property it would be open the borrower to file an appeal (petition) under Section 17 of the Act before the Debt Recovery Tribunal.3. That the Tribunal in exercise of its ancillary powers shall have jurisdiction to pass any stay/interim order subject to the condition as it may deem fit and proper to impose.4. In view of the discussion already held on this behalf, we find that the requirement of deposit of 75% of amount claimed before entertaining an appeal (petition) under Section 17 of the Act is an oppressive, onerous and arbitrary condition against all the canons of reasonableness. Such a condition is invalid and it is liable to be struck down.5. As discussed earlier in this judgment, we find that it will be open to maintain a civil suit in Civil Court, within the narrow scope and on the limited grounds on which they are permissible, in the matters relating to an English mortgage enforceable without intervention of the Court. 81. In view of the discussion held in the judgment and the findings and directions contained in the preceding paragraphs, we hold that the borrowers would get a reasonably fair deal and opportunity to get the matter adjudicated upon before the Debt Recovery Tribunal. The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital liquidity and resources to help in growth of economy of the country and welfare of the people in general which would subserve the public interest.82. We, therefore, subject to what is provided in paragraph 80 above, uphold the validity of the Act and its provisions except that of Sub-section (2) of Section 17 of the Act, which is declared ultra vires of Article 14 of the Constitution of India.83. Before we part with the case, we would like to observe that where a secured creditor has taken action under Section 13(4) of the Act, in such cases it would be open to borrowers to file appeals under Section 17 of the Act within the limitation as prescribed therefor, to be counted with effect from today. 84.
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SLT 571=2002 (3) SCC 496 at 504 para 7, Haryana Financial Corporation v. Jagdamba Oil Mills, to submit that concept of natural justice is not a strait jacket formula. It, on the other hand, depends upon the facts of the case, nature of the inquiry, the rules under which the Tribunal is acting and what is to be seen that no one should be hit below the belt. Relationship between the creditor and the debtor, it is submitted, is essentially in the realm of a contract.76. In regard to the submission made by the parties as indicated in preceding paragraphs, we would like to make it clear that issue of a notice to the debtor by the creditor does not attract the application of principles of natural justice. It is always open to tell the debtor what he owes to repay. No hearing can be demanded from the creditor at this stage. So far the provision of appeal is concerned, we have already discussed in the earlier part of the judgment that proceedings under Section 17 of the Act have been wrongly described as appeal before the Debt Recovery Tribunal. It is in fact a Forum where proceedings are originally initiated in case of any grievance against the creditor in respect of any measure taken under Sub-section (4) of Section 13 of the Act. Hence, the decisions on the point as to whether provision for an appeal is essential or not are not of any assistance in the facts of the present case.77. It is also true that till the stage of making of the demand and notice under Section 13(2) of the Act, no hearing can be claimed for by the borrower. But looking to the stringent nature of measures to be taken without intervention of Court with a bar to approach the Court or any other Forum at that stage, it becomes only reasonable that the secured creditor must bear in mind the say of the borrower before such a process of recovery is initiated. So as to demonstrate that the reply of the borrower to the notice under Section 13(2) of the Act has been considered applying mind to it. The reasons howsoever brief that may be for not accepting the objections, if raised in the reply, must be communicated to the borrower. True, presumption is in favour of validity of an enactment and a legislation may not be declared unconstitutional lightly more so, in the matters relating to fiscal and economic policies resorted to in the public interest, but while resorting to such legislation it would be necessary to see that the persons aggrieved get a fair deal at the hands of those who have been vested with the powers to enforce drastic steps to make recovery.78. It was sought to be argued that fairness cannot be a one way street. The plea of absence of natural justice lies ill in the mouth of chronic defaulters who have not paid the principal amounts admittedly due to the banks. The said argument pre-supposes admission of the liability by the borrowers and all of them to be chronic defaulters. It would only be pre-judging an issue. We hope it was not meant to be said that all those who defaulted according to the banks and financial institutions must be condemned unheard who might not deserve any hearing to place their side of the case, unless they must go through the crushing pre-conditions of deposit of 75% of the amount demanded over and above their secured assets already having been taken possession of. We feel this can well be one example of hitting below the belt.79. Some submissions have been made pointing out that in certain circumstances it would not be clear as to in what manner the provisions of the Act would be workable. We feel the objections pointed out are not such which render the statute invalid or unconstitutional. Such problems about working of any particular provision of the Act in any particular factual situation, may be considered as and when it may arise. We, therefore, do not think it necessary to go into those questions.80. Under the Act in consideration, we find that before taking action a notice of 60 days is required to be given and after the measures under Section 13(4) of the Act have been taken, a mechanism has been provided under Section 17 of the Act to approach the Debt Recovery Tribunal. The above noted provisions are for the purposes of giving some reasonable protection to the borrower. Viewing the matter in the above perspective, we find what emerges from different provisions of theIn view of the discussion held in the judgment and the findings and directions contained in the preceding paragraphs, we hold that the borrowers would get a reasonably fair deal and opportunity to get the matter adjudicated upon before the Debt Recovery Tribunal. The effect of some of the provisions may be a bit harsh for some of the borrowers but on that ground the impugned provisions of the Act cannot be said to be unconstitutional in view of the fact that the object of the Act is to achieve speedier recovery of the dues declared as NPAs and better availability of capital liquidity and resources to help in growth of economy of the country and welfare of the people in general which would subserve the public interest.82. We, therefore, subject to what is provided in paragraph 80 above, uphold the validity of the Act and its provisions except that of Sub-section (2) of Section 17 of the Act, which is declared ultra vires of Article 14 of the Constitution of India.83. Before we part with the case, we would like to observe that where a secured creditor has taken action under Section 13(4) of the Act, in such cases it would be open to borrowers to file appeals under Section 17 of the Act within the limitation as prescribed therefor, to be counted with effect from today.
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Rajendra Kumar Meshram Vs. Vanshmani Prasad Verma | the returned candidate is liable to be declared void if, inter alia, he was not qualified for membership of Parliament or the State Legislature as may be. Section 5 of the 1951 Act deals with qualifications for membership of a Legislative Assembly of a State which, inter alia, requires a candidate to be an elector of any Assembly constituency of the State. To declare an election void under Section 100(1)(a), it must, therefore, be established that the returned candidate is not a voter of any assembly constituency of the State.12. After the receipt of nomination, the election petitioner has objected to the acceptance of the nomination of the appellant-returned candidate on the ground that the returned candidate was a Government servant and therefore disqualified from contesting the election. This was rejected by the Returning Officer on 11.11.2013 holding that the returned candidate had duly submitted his resignation which was accepted before the date of filing of nomination. No objection to the effect that the returned candidate was not qualified to contest the election as he was not a voter of any assembly Constituency of the State was raised in the objection filed. Neither was any objection taken to the effect that the returned candidate was not eligible to participate in the election as he had not furnished the electoral roll of the Constituency in which he was a voter or a certified copy thereof. However, in the election petition filed, it was pleaded in para 1.11 of the election petition, (extracted above) that the returned candidate had “failed to furnish a certified copy of the voter list to entitle him to contest the election from Devsar constituency as he is registered voter of 80, Singrauli constituency and without filing the certified copy of relevant part of voter list he was not eligible to contest from other constituency.” There was no pleading at all to the effect that the appellant is not a voter of any assembly constituency and therefore is not qualified.13. From the above, it is clear that it was not the case of the respondent-election petitioner that the appellant-returned candidate was not qualified to contest the election. It is only before this Court, and that too in the oral arguments made, that it has been urged, by relying on the order of the High Court, that the returned candidate was not qualified to contest the election under Section 100(1)(a) of the 1951 Act and therefore his election was rightly set aside by the High Court.14. The trial of an election petition, as per Section 87 of 1951 Act has to be in accordance with the provisions of the Code of Civil Procedure, 1908. When no pleadings that the election of the returned candidate was void on grounds mentioned in Section 100(1)(a) were made and no issue on this score was struck and no opportunity to the returned candidate to adduce relevant evidence was afforded, the High Court, in our considered view, could not have found that the election of the returned candidate was void under Section 100(1)(a). In fact, from a reading of para 1.11 of the election petition as extracted above, it clearly appears that the election petitioner had stated that the appellant-returned candidate is a voter of No.80 Singrauli constituency but he had omitted to enclose the electoral roll or a certified copy thereof along with his nomination papers which made him ineligible to contest the election. This part of the pleading must be seen in the light of the provisions of Section 33(4) and 33(5) of the 1951 Act. Under Section 33(4) the returning officer must satisfy himself that a candidate’s name and electoral roll numbers is the same as claimed/entered in the nomination paper. If the candidate is a voter of the same constituency from which he seeks election, there is no difficulty the electoral rolls would be readily available with the returning officer. But if the candidate is a voter of another constituency, then Section 33(5) requires him to enclose along with the nomination or at the time of scrutiny, the electoral roll or certified copy of the same pertaining to that constituency. The entire case of the election petitioner as pleaded is that the appellant-returned candidate was a voter of another constituency i.e. No.80 Singrauli constituency but he had not enclosed or produced the electoral roll of that constituency or a certified copy thereof thereby making him ineligible to contest the election.15. In view of the state of the pleadings as noticed above; the issues framed and the evidence led by the parties, we cannot agree with the High Court that the respondent-election petitioner had made out a case for declaration that the result of the election in favour of the returned candidate was void under Section 100(1)(a) of the 1951 Act. Having reached our conclusion on above said basis, it is not necessary to go into the question raised on behalf of the respondent-election petitioner that failure to produce the copy of the electoral roll of the constituency in which a candidate is a voter or a certified copy thereof, by itself, would amount to a proof of lack of/absence of qualification under Section 5 of the 1951 Act. All that would be necessary for us to say in this regard is that any such view would not be consistent with the legislative intent expressed by the enactment of two separate and specific provisions contained in Section 100 (1) (a) and 100 (1) (d) of the 1951 Act.16. Though a number of precedents have been cited on behalf of the respondent-election petitioner to sustain the arguments advanced, it will not be necessary for us to take any specific note of the principles of law laid down in any of the said cases inasmuch as all the said cases relate to rejection of nominations on account of failure to comply with the provisions of Section 33(5) of the Act of 1951 which is not in issue before us in the present appeal.17. | 1[ds]is clear that it was not the case of the respondent-election petitioner that the appellant-returned candidate was not qualified to contest the election. It is only before this Court, and that too in the oral arguments made, that it has been urged, by relying on the order of the High Court, that the returned candidate was not qualified to contest the election under Section 100(1)(a) of the 1951 Act and therefore his election was rightly set aside by the Hightrial of an election petition, as per Section 87 of 1951 Act has to be in accordance with the provisions of the Code of Civil Procedure, 1908. When no pleadings that the election of the returned candidate was void on grounds mentioned in Section 100(1)(a) were made and no issue on this score was struck and no opportunity to the returned candidate to adduce relevant evidence was afforded, the High Court, in our considered view, could not have found that the election of the returned candidate was void under Section 100(1)(a). In fact, from a reading of para 1.11 of the election petition as extracted above, it clearly appears that the election petitioner had stated that the appellant-returned candidate is a voter of No.80 Singrauli constituency but he had omitted to enclose the electoral roll or a certified copy thereof along with his nomination papers which made him ineligible to contest the election. This part of the pleading must be seen in the light of the provisions of Section 33(4) and 33(5) of the 1951 Act. Under Section 33(4) the returning officer must satisfy himself that aname and electoral roll numbers is the same as claimed/entered in the nomination paper. If the candidate is a voter of the same constituency from which he seeks election, there is no difficulty the electoral rolls would be readily available with the returning officer. But if the candidate is a voter of another constituency, then Section 33(5) requires him to enclose along with the nomination or at the time of scrutiny, the electoral roll or certified copy of the same pertaining to that constituency. The entire case of the election petitioner as pleaded is that the appellant-returned candidate was a voter of another constituency i.e. No.80 Singrauli constituency but he had not enclosed or produced the electoral roll of that constituency or a certified copy thereof thereby making him ineligible to contest theview of the state of the pleadings as noticed above; the issues framed and the evidence led by the parties, we cannot agree with the High Court that the respondent-election petitioner had made out a case for declaration that the result of the election in favour of the returned candidate was void under Section 100(1)(a) of the 1951 Act. Having reached our conclusion on above said basis, it is not necessary to go into the question raised on behalf of the respondent-election petitioner that failure to produce the copy of the electoral roll of the constituency in which a candidate is a voter or a certified copy thereof, by itself, would amount to a proof of lack of/absence of qualification under Section 5 of the 1951 Act. All that would be necessary for us to say in this regard is that any such view would not be consistent with the legislative intent expressed by the enactment of two separate and specific provisions contained in Section 100 (1) (a) and 100 (1) (d) of the 1951a number of precedents have been cited on behalf of the respondent-election petitioner to sustain the arguments advanced, it will not be necessary for us to take any specific note of the principles of law laid down in any of the said cases inasmuch as all the said cases relate to rejection of nominations on account of failure to comply with the provisions of Section 33(5) of the Act of 1951 which is not in issue before us in the present appeal. | 1 | 2,754 | 737 | ### Instruction:
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the returned candidate is liable to be declared void if, inter alia, he was not qualified for membership of Parliament or the State Legislature as may be. Section 5 of the 1951 Act deals with qualifications for membership of a Legislative Assembly of a State which, inter alia, requires a candidate to be an elector of any Assembly constituency of the State. To declare an election void under Section 100(1)(a), it must, therefore, be established that the returned candidate is not a voter of any assembly constituency of the State.12. After the receipt of nomination, the election petitioner has objected to the acceptance of the nomination of the appellant-returned candidate on the ground that the returned candidate was a Government servant and therefore disqualified from contesting the election. This was rejected by the Returning Officer on 11.11.2013 holding that the returned candidate had duly submitted his resignation which was accepted before the date of filing of nomination. No objection to the effect that the returned candidate was not qualified to contest the election as he was not a voter of any assembly Constituency of the State was raised in the objection filed. Neither was any objection taken to the effect that the returned candidate was not eligible to participate in the election as he had not furnished the electoral roll of the Constituency in which he was a voter or a certified copy thereof. However, in the election petition filed, it was pleaded in para 1.11 of the election petition, (extracted above) that the returned candidate had “failed to furnish a certified copy of the voter list to entitle him to contest the election from Devsar constituency as he is registered voter of 80, Singrauli constituency and without filing the certified copy of relevant part of voter list he was not eligible to contest from other constituency.” There was no pleading at all to the effect that the appellant is not a voter of any assembly constituency and therefore is not qualified.13. From the above, it is clear that it was not the case of the respondent-election petitioner that the appellant-returned candidate was not qualified to contest the election. It is only before this Court, and that too in the oral arguments made, that it has been urged, by relying on the order of the High Court, that the returned candidate was not qualified to contest the election under Section 100(1)(a) of the 1951 Act and therefore his election was rightly set aside by the High Court.14. The trial of an election petition, as per Section 87 of 1951 Act has to be in accordance with the provisions of the Code of Civil Procedure, 1908. When no pleadings that the election of the returned candidate was void on grounds mentioned in Section 100(1)(a) were made and no issue on this score was struck and no opportunity to the returned candidate to adduce relevant evidence was afforded, the High Court, in our considered view, could not have found that the election of the returned candidate was void under Section 100(1)(a). In fact, from a reading of para 1.11 of the election petition as extracted above, it clearly appears that the election petitioner had stated that the appellant-returned candidate is a voter of No.80 Singrauli constituency but he had omitted to enclose the electoral roll or a certified copy thereof along with his nomination papers which made him ineligible to contest the election. This part of the pleading must be seen in the light of the provisions of Section 33(4) and 33(5) of the 1951 Act. Under Section 33(4) the returning officer must satisfy himself that a candidate’s name and electoral roll numbers is the same as claimed/entered in the nomination paper. If the candidate is a voter of the same constituency from which he seeks election, there is no difficulty the electoral rolls would be readily available with the returning officer. But if the candidate is a voter of another constituency, then Section 33(5) requires him to enclose along with the nomination or at the time of scrutiny, the electoral roll or certified copy of the same pertaining to that constituency. The entire case of the election petitioner as pleaded is that the appellant-returned candidate was a voter of another constituency i.e. No.80 Singrauli constituency but he had not enclosed or produced the electoral roll of that constituency or a certified copy thereof thereby making him ineligible to contest the election.15. In view of the state of the pleadings as noticed above; the issues framed and the evidence led by the parties, we cannot agree with the High Court that the respondent-election petitioner had made out a case for declaration that the result of the election in favour of the returned candidate was void under Section 100(1)(a) of the 1951 Act. Having reached our conclusion on above said basis, it is not necessary to go into the question raised on behalf of the respondent-election petitioner that failure to produce the copy of the electoral roll of the constituency in which a candidate is a voter or a certified copy thereof, by itself, would amount to a proof of lack of/absence of qualification under Section 5 of the 1951 Act. All that would be necessary for us to say in this regard is that any such view would not be consistent with the legislative intent expressed by the enactment of two separate and specific provisions contained in Section 100 (1) (a) and 100 (1) (d) of the 1951 Act.16. Though a number of precedents have been cited on behalf of the respondent-election petitioner to sustain the arguments advanced, it will not be necessary for us to take any specific note of the principles of law laid down in any of the said cases inasmuch as all the said cases relate to rejection of nominations on account of failure to comply with the provisions of Section 33(5) of the Act of 1951 which is not in issue before us in the present appeal.17.
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### Explanation:
is clear that it was not the case of the respondent-election petitioner that the appellant-returned candidate was not qualified to contest the election. It is only before this Court, and that too in the oral arguments made, that it has been urged, by relying on the order of the High Court, that the returned candidate was not qualified to contest the election under Section 100(1)(a) of the 1951 Act and therefore his election was rightly set aside by the Hightrial of an election petition, as per Section 87 of 1951 Act has to be in accordance with the provisions of the Code of Civil Procedure, 1908. When no pleadings that the election of the returned candidate was void on grounds mentioned in Section 100(1)(a) were made and no issue on this score was struck and no opportunity to the returned candidate to adduce relevant evidence was afforded, the High Court, in our considered view, could not have found that the election of the returned candidate was void under Section 100(1)(a). In fact, from a reading of para 1.11 of the election petition as extracted above, it clearly appears that the election petitioner had stated that the appellant-returned candidate is a voter of No.80 Singrauli constituency but he had omitted to enclose the electoral roll or a certified copy thereof along with his nomination papers which made him ineligible to contest the election. This part of the pleading must be seen in the light of the provisions of Section 33(4) and 33(5) of the 1951 Act. Under Section 33(4) the returning officer must satisfy himself that aname and electoral roll numbers is the same as claimed/entered in the nomination paper. If the candidate is a voter of the same constituency from which he seeks election, there is no difficulty the electoral rolls would be readily available with the returning officer. But if the candidate is a voter of another constituency, then Section 33(5) requires him to enclose along with the nomination or at the time of scrutiny, the electoral roll or certified copy of the same pertaining to that constituency. The entire case of the election petitioner as pleaded is that the appellant-returned candidate was a voter of another constituency i.e. No.80 Singrauli constituency but he had not enclosed or produced the electoral roll of that constituency or a certified copy thereof thereby making him ineligible to contest theview of the state of the pleadings as noticed above; the issues framed and the evidence led by the parties, we cannot agree with the High Court that the respondent-election petitioner had made out a case for declaration that the result of the election in favour of the returned candidate was void under Section 100(1)(a) of the 1951 Act. Having reached our conclusion on above said basis, it is not necessary to go into the question raised on behalf of the respondent-election petitioner that failure to produce the copy of the electoral roll of the constituency in which a candidate is a voter or a certified copy thereof, by itself, would amount to a proof of lack of/absence of qualification under Section 5 of the 1951 Act. All that would be necessary for us to say in this regard is that any such view would not be consistent with the legislative intent expressed by the enactment of two separate and specific provisions contained in Section 100 (1) (a) and 100 (1) (d) of the 1951a number of precedents have been cited on behalf of the respondent-election petitioner to sustain the arguments advanced, it will not be necessary for us to take any specific note of the principles of law laid down in any of the said cases inasmuch as all the said cases relate to rejection of nominations on account of failure to comply with the provisions of Section 33(5) of the Act of 1951 which is not in issue before us in the present appeal.
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Om Prakash Gupta Etc Vs. Dig Vijendrapal Gupta Etc | section 21, sub-section (2) of section 24, sections 24A, 24B, 24C or sub-section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed: Explanation I. For the purposes of this sub- section: (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority havin g jurisdiction and in the case of a building subject to assessment the date on which the first assessment thereof comes into effect, and where the said dates are different, the ea rliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervi sing the construction or guarding the building under construction) for the first time:.. 8. The precise contention on behalf of the appellant is that the exemption created by this sub-section does not embrace buildings constructed prior to the enforcement of the Act. In support of his contention, Mr. Sanghi, relied upon Rattan Lal Shinghal v. Smt. Murti Devi.(1) The same contention was raised by him in that case also and a Division Bench of thi s Court accepted the contention and held that Act 13 of 1972 was prospective and applied only to buildings brought into being de novo after the Act came into force. In that case there is no discussion except this bald observation. This Court in a subs equent case Ram Saroop Rai v. Lilavati(2) held to the contrary. It is on this account that the present appeals were referred to a larger Bench. There is no ambiguity in the language of sub-section (2) of section 2 and in the absence of any ambigui ty there is no question of taking any external aid for the interpretation of the sub-section. In plain words the sub-section contemplates that the Act shall not apply to a building during a period of ten years from the date on which i ts construction is completed. It nowhere says that the building should have been constructed after the enforcement of the Act and to interpret it in the way the learned counsel for the appellant seeks to interpret it, we would be adding words to the sub-section, which is not permissible. Primarily the language employed is the determining factor of the intention of the legislature. The first and primary rule of construction is that the intention of the legislature must be found in th e words used by the legislature itself. The question of interpretation arises only when the language is ambiguous and, therefore, capable of two interpretations. In the present case the language of sub-section (2) of section 2 of the Act is explici t and unambiguous and it is not capable of two interpretations.As a second limb to the first argument, it is contended that the building will be deemed to have been constructed on the date of occupation on 16th of June, 1967 and not on the date of the first assessment, and that if this be so, the appellant would be entitled to the benefit of section 39 of the Act on the date when the revision came to be decided by the High Court on 23rd of March, 1978. In order to appreciate this argument it will be expedient to refer to Explanation I to sub-section (2) of section 2 which has already been extracted. Explanation I provides that the building shall be deemed to have been completed on the date on which completion thereof is reported to or otherwise recorded by the local authorities having jurisdiction, and in case of a building subject to assessment the date on which the first assessment thereof comes into effect and where the said dates are different, the e arliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied for the first time. A perusal of Explanation I makes it abundantly clear that the date of occupation would b e taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment, thereof. If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction and in that view of the matter the building had not become more than ten years old on the date when the revision came to be decided by the High Court, and therefore there was no question of giving the benefit of section 39 of the Act to the appellant. Further, in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15th of July, 1972 but the suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act. There is yet another reason why section 39 will have no application to the present case. In view of sub-section (2) of section 2 of the Act the Act is not applicable to a building which has not a standing of ten years and if the Act itself was not applicable, it would be absurd to say that section 39 thereof would be applicable. Considered from any angle the Act has no application to t he present case and the appellant could not be given the benefit of section 39. The suit has, therefore, been rightly decreed by the courts below.We find no force in either of the contentions raised by Mr. Sanghi. The counsel for the appell ants in the other appeals and the petitioner in the special leave petition, adopted the arguments of Mr. Sanghi. 9. | 0[ds]A perusal of Explanation I makes it abundantly clear that the date of occupation would b e taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment, thereof. If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction and in that view of the matter the building had not become more than ten years old on the date when the revision came to be decided by the High Court, and therefore there was no question of giving the benefit of section 39 of the Act to the appellantFurther, in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15th of July, 1972 but the suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act. There is yet another reason why section 39 will have no application to the present case. In view of sub-section (2) of section 2 of the Act the Act is not applicable to a building which has not a standing of ten years and if the Act itself was not applicable, it would be absurd to say that section 39 thereof would be applicable. Considered from any angle the Act has no application to t he present case and the appellant could not be given the benefit of section 39. The suit has, therefore, been rightly decreed by the courts below.We find no force in either of the contentions raised by Mr. Sanghi. The counsel for the appell ants in the other appeals and the petitioner in the special leave petition, adopted the arguments of Mr. Sanghi. | 0 | 2,018 | 338 | ### Instruction:
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section 21, sub-section (2) of section 24, sections 24A, 24B, 24C or sub-section (3) of section 29, nothing in this Act shall apply to a building during a period of ten years from the date on which its construction is completed: Explanation I. For the purposes of this sub- section: (a) the construction of a building shall be deemed to have been completed on the date on which the completion thereof is reported to or otherwise recorded by the local authority havin g jurisdiction and in the case of a building subject to assessment the date on which the first assessment thereof comes into effect, and where the said dates are different, the ea rliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied (not including occupation merely for the purposes of supervi sing the construction or guarding the building under construction) for the first time:.. 8. The precise contention on behalf of the appellant is that the exemption created by this sub-section does not embrace buildings constructed prior to the enforcement of the Act. In support of his contention, Mr. Sanghi, relied upon Rattan Lal Shinghal v. Smt. Murti Devi.(1) The same contention was raised by him in that case also and a Division Bench of thi s Court accepted the contention and held that Act 13 of 1972 was prospective and applied only to buildings brought into being de novo after the Act came into force. In that case there is no discussion except this bald observation. This Court in a subs equent case Ram Saroop Rai v. Lilavati(2) held to the contrary. It is on this account that the present appeals were referred to a larger Bench. There is no ambiguity in the language of sub-section (2) of section 2 and in the absence of any ambigui ty there is no question of taking any external aid for the interpretation of the sub-section. In plain words the sub-section contemplates that the Act shall not apply to a building during a period of ten years from the date on which i ts construction is completed. It nowhere says that the building should have been constructed after the enforcement of the Act and to interpret it in the way the learned counsel for the appellant seeks to interpret it, we would be adding words to the sub-section, which is not permissible. Primarily the language employed is the determining factor of the intention of the legislature. The first and primary rule of construction is that the intention of the legislature must be found in th e words used by the legislature itself. The question of interpretation arises only when the language is ambiguous and, therefore, capable of two interpretations. In the present case the language of sub-section (2) of section 2 of the Act is explici t and unambiguous and it is not capable of two interpretations.As a second limb to the first argument, it is contended that the building will be deemed to have been constructed on the date of occupation on 16th of June, 1967 and not on the date of the first assessment, and that if this be so, the appellant would be entitled to the benefit of section 39 of the Act on the date when the revision came to be decided by the High Court on 23rd of March, 1978. In order to appreciate this argument it will be expedient to refer to Explanation I to sub-section (2) of section 2 which has already been extracted. Explanation I provides that the building shall be deemed to have been completed on the date on which completion thereof is reported to or otherwise recorded by the local authorities having jurisdiction, and in case of a building subject to assessment the date on which the first assessment thereof comes into effect and where the said dates are different, the e arliest of the said dates, and in the absence of any such report, record or assessment, the date on which it is actually occupied for the first time. A perusal of Explanation I makes it abundantly clear that the date of occupation would b e taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment, thereof. If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction and in that view of the matter the building had not become more than ten years old on the date when the revision came to be decided by the High Court, and therefore there was no question of giving the benefit of section 39 of the Act to the appellant. Further, in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15th of July, 1972 but the suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act. There is yet another reason why section 39 will have no application to the present case. In view of sub-section (2) of section 2 of the Act the Act is not applicable to a building which has not a standing of ten years and if the Act itself was not applicable, it would be absurd to say that section 39 thereof would be applicable. Considered from any angle the Act has no application to t he present case and the appellant could not be given the benefit of section 39. The suit has, therefore, been rightly decreed by the courts below.We find no force in either of the contentions raised by Mr. Sanghi. The counsel for the appell ants in the other appeals and the petitioner in the special leave petition, adopted the arguments of Mr. Sanghi. 9.
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0
### Explanation:
A perusal of Explanation I makes it abundantly clear that the date of occupation would b e taken to be the date of completion of the construction only when there is no report or record of the completion of the construction or no assessment, thereof. If there is an assessment, as in the present case it is, it will be the date of the first assessment which will be deemed to be the date of completion of the construction and in that view of the matter the building had not become more than ten years old on the date when the revision came to be decided by the High Court, and therefore there was no question of giving the benefit of section 39 of the Act to the appellantFurther, in order to attract section 39 the suit must be pending on the date of commencement of the Act which is 15th of July, 1972 but the suit giving rise to the present appeal was filed on 23rd of March, 1974 long after the commencement of the Act. There is yet another reason why section 39 will have no application to the present case. In view of sub-section (2) of section 2 of the Act the Act is not applicable to a building which has not a standing of ten years and if the Act itself was not applicable, it would be absurd to say that section 39 thereof would be applicable. Considered from any angle the Act has no application to t he present case and the appellant could not be given the benefit of section 39. The suit has, therefore, been rightly decreed by the courts below.We find no force in either of the contentions raised by Mr. Sanghi. The counsel for the appell ants in the other appeals and the petitioner in the special leave petition, adopted the arguments of Mr. Sanghi.
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COMMISSIONER OF TRADE TAX, U.P. & ORS Vs. SANTOSH KUMAR KUSHWAHA | start of production, the date of the first sale, and the period during which exemption would be available. The maximum exemption limit is specified. The eligibility certificate states that the exemption would not apply after the specified period or the exemption limit, whichever expires earlier. 9. The State of U.P. through the Governor, in exercise and to effectuate the exemption under Section 4-A, had issued a Notification No. TT-2-780/XI-9(226)/94-U.P.Act-15/48-Order-95, dated 31.03.1995. Annexure-1 of the said notification is a table which vide different columns specify and stipulate as per the location of the unit the exemption from or reduction in the rate of tax in Column 4 and the monetary limit up to which the benefit of exemption/reduction can be granted in Column 5. For convenience and understanding, we reproduce the headings of the different columns: Column 1 Column 2 Column 3 Column 4 Column 5 Sl.No. Location of Unit Total period of exemption /reduction in the rate of tax Exemption from or reduction in the rate of tax (denoted as percentage of the rate of tax normally applicable under the U.P. Act to the goods concerned) which, on any transaction of sale, shall not exceed five percent of the sale price Monetary limit upto which the benefit of exemption from or reduction in the rate of tax under the Act together with the benefit of exemption from or reduction in the rate of tax under the Central Sales Tax Act, 1956 is admissible Year In case of units with a fixed capital investment exceeding 50 crores In case of other units 10. This Court in State of Uttar Pradesh & Ors. v. M/s Systematic Conscom Limited, (2014) 13 SCC 627 had examined the contours of the State Development Tax under Section 3-H imposed w.e.f. 01.05.2005 and held that the provision imposes altogether a new tax on certain dealers whose turnover exceeds the prescribed limit. Section 3-H is a charging Section, which also prescribes the taxable event, the person on whom the tax is imposed and is obliged to pay the tax, the rate of tax and the measure or value to which the rate will apply for computing the tax in liability. Accordingly, the State Development Tax differs from the tax imposed under Section 3 (Liability to tax under the Act) of the U.P. Trade Tax Act, 1948. 11. The Commissioner, Trade Tax, Uttar Pradesh vide circular no. 723 dated 03.05.2005 had inter alia specified that the adjustment under sub-section (3) of Section 3-H shall be accepted in the same manner, as the adjustment of normal amount of trade tax in eligibility certificate under Section 4-A. The interpretative consequence of the circular was read by the assessing authorities to mean that the adjustment in State Development Tax was to be made on proportional basis, rather than including it in the monetary limit specified in Column 5 of Annexure-1 and the limit in the eligibility certificate. 12. In our opinion, the High Court was correct in holding that the respondent assessees would be entitled to the benefit of sub-section (3) to Section 3-H by seeking adjustment of the State Development Tax within the monetary limit specified in the eligibility certificate issued under Section 4-A. The monetary limit specified in the certificate issued under Section 4-A would refer to the monetary limits quantified in the eligibility certificate itself as well as the monetary limit set in Column 5 of Annexure-1. Sub-section (3) to Section 3-H does not prescribe that Column 4 in Annexure-1, which relates to exemption from or reduction in the rate of tax (denoted as percentage of the rate of tax normally applicable under the U.P. Act to the goods concerned), would be applicable in determining the monetary limit. Sub-section (3) to Section 3-H does not refer to the rate of tax, which is the subject matter of Column 4 of Annexure-1. 13. The legislature, while enacting sub-section (3) to Section 3-H (w.e.f. 01.05.2005), was conscious and aware of the different contours of the exemption/reduction in terms of Annexure–1 (published in U.P. Gazette dated 31.03.1995). However, while legislating, they had specified that the adjustment would be up to the monetary limits set in the eligibility certificate issued under Section 4-A which will include the last column of Annexure-1 viz., Monetary limit upto which the benefit of exemption from or reduction in the rate of tax under the Act together with the benefit of exemption from or reduction in the rate of tax under the Central Sales Tax Act, 1956 is admissible. Sub-section (3) to Section 3-H does not stipulate that the assessees would be only entitled to an adjustment/reduction to the extent specified in Column 4. This is clear from the corresponding amendment, which was made to Section 4-A (1) by inserting the words notwithstanding anything contained in any other provisions except the provisions of Section 3-H of this Act. [Substituted by U.P. Act No. 9 of 2005, for the words Notwithstanding anything contained in this Act, dated 24.03.2005 (w.e.f. 01.05.2005)] The legislature, therefore, wanted to insulate and protect the assessees from the effect of the notification or exemption under Section 4-A except to the extent stated in sub-section (3) to Section 3-H while imposing State Development Tax. Benefit under sub-section (3) to Section 3-H by adjustment is to be within the monetary limits. No other clause or stipulation under the notification issued vide Section 4-A would apply. Section 3-H(3) prevails over Section 4-A to the extent not saved by sub-section (3) to Section 3-H of the U.P. Trade Tax Act,1948. 14. It is a general rule of interpretation of taxing statutes that there is no room for any intendment and they are to be read in the light of what is clearly expressed and enforced literatim or ad verbum. There are no equitable considerations or implications or assumptions or presumptions as to import provisions to supply any assumed deficiency in taxing statutes (Commissioner of Customs (Import), Mumbai v. Dilip Kumar and Company and others, (2018) 9 SCC 1) . | 1[ds]10. This Court in State of Uttar Pradesh & Ors. v. M/s Systematic Conscom Limited, (2014) 13 SCC 627 had examined the contours of the State Development Tax under Section 3-H imposed w.e.f. 01.05.2005 and held that the provision imposes altogether a new tax on certain dealers whose turnover exceeds the prescribed limit. Section 3-H is a charging Section, which also prescribes the taxable event, the person on whom the tax is imposed and is obliged to pay the tax, the rate of tax and the measure or value to which the rate will apply for computing the tax in liability. Accordingly, the State Development Tax differs from the tax imposed under Section 3 (Liability to tax under the Act) of the U.P. Trade Tax Act, 1948.11. The Commissioner, Trade Tax, Uttar Pradesh vide circular no. 723 dated 03.05.2005 had inter alia specified that the adjustment under sub-section (3) of Section 3-H shall be accepted in the same manner, as the adjustment of normal amount of trade tax in eligibility certificate under Section 4-A. The interpretative consequence of the circular was read by the assessing authorities to mean that the adjustment in State Development Tax was to be made on proportional basis, rather than including it in the monetary limit specified in Column 5 of Annexure-1 and the limit in the eligibility certificate.12. In our opinion, the High Court was correct in holding that the respondent assessees would be entitled to the benefit of sub-section (3) to Section 3-H by seeking adjustment of the State Development Tax within the monetary limit specified in the eligibility certificate issued under Section 4-A. The monetary limit specified in the certificate issued under Section 4-A would refer to the monetary limits quantified in the eligibility certificate itself as well as the monetary limit set in Column 5 of Annexure-1. Sub-section (3) to Section 3-H does not prescribe that Column 4 in Annexure-1, which relates to exemption from or reduction in the rate of tax (denoted as percentage of the rate of tax normally applicable under the U.P. Act to the goods concerned), would be applicable in determining the monetary limit. Sub-section (3) to Section 3-H does not refer to the rate of tax, which is the subject matter of Column 4 of Annexure-1.This is clear from the corresponding amendment, which was made to Section 4-A (1) by inserting the words notwithstanding anything contained in any other provisions except the provisions of Section 3-H of this Act. [Substituted by U.P. Act No. 9 of 2005, for the words Notwithstanding anything contained in this Act, dated 24.03.2005 (w.e.f. 01.05.2005)] The legislature, therefore, wanted to insulate and protect the assessees from the effect of the notification or exemption under Section 4-A except to the extent stated in sub-section (3) to Section 3-H while imposing State Development Tax. Benefit under sub-section (3) to Section 3-H by adjustment is to be within the monetary limits. No other clause or stipulation under the notification issued vide Section 4-A would apply. Section 3-H(3) prevails over Section 4-A to the extent not saved by sub-section (3) to Section 3-H of the U.P. Trade Tax Act,1948.14. It is a general rule of interpretation of taxing statutes that there is no room for any intendment and they are to be read in the light of what is clearly expressed and enforced literatim or ad verbum. There are no equitable considerations or implications or assumptions or presumptions as to import provisions to supply any assumed deficiency in taxing statutes (Commissioner of Customs (Import), Mumbai v. Dilip Kumar and Company and others, (2018) 9 SCC 1) . | 1 | 1,986 | 685 | ### Instruction:
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start of production, the date of the first sale, and the period during which exemption would be available. The maximum exemption limit is specified. The eligibility certificate states that the exemption would not apply after the specified period or the exemption limit, whichever expires earlier. 9. The State of U.P. through the Governor, in exercise and to effectuate the exemption under Section 4-A, had issued a Notification No. TT-2-780/XI-9(226)/94-U.P.Act-15/48-Order-95, dated 31.03.1995. Annexure-1 of the said notification is a table which vide different columns specify and stipulate as per the location of the unit the exemption from or reduction in the rate of tax in Column 4 and the monetary limit up to which the benefit of exemption/reduction can be granted in Column 5. For convenience and understanding, we reproduce the headings of the different columns: Column 1 Column 2 Column 3 Column 4 Column 5 Sl.No. Location of Unit Total period of exemption /reduction in the rate of tax Exemption from or reduction in the rate of tax (denoted as percentage of the rate of tax normally applicable under the U.P. Act to the goods concerned) which, on any transaction of sale, shall not exceed five percent of the sale price Monetary limit upto which the benefit of exemption from or reduction in the rate of tax under the Act together with the benefit of exemption from or reduction in the rate of tax under the Central Sales Tax Act, 1956 is admissible Year In case of units with a fixed capital investment exceeding 50 crores In case of other units 10. This Court in State of Uttar Pradesh & Ors. v. M/s Systematic Conscom Limited, (2014) 13 SCC 627 had examined the contours of the State Development Tax under Section 3-H imposed w.e.f. 01.05.2005 and held that the provision imposes altogether a new tax on certain dealers whose turnover exceeds the prescribed limit. Section 3-H is a charging Section, which also prescribes the taxable event, the person on whom the tax is imposed and is obliged to pay the tax, the rate of tax and the measure or value to which the rate will apply for computing the tax in liability. Accordingly, the State Development Tax differs from the tax imposed under Section 3 (Liability to tax under the Act) of the U.P. Trade Tax Act, 1948. 11. The Commissioner, Trade Tax, Uttar Pradesh vide circular no. 723 dated 03.05.2005 had inter alia specified that the adjustment under sub-section (3) of Section 3-H shall be accepted in the same manner, as the adjustment of normal amount of trade tax in eligibility certificate under Section 4-A. The interpretative consequence of the circular was read by the assessing authorities to mean that the adjustment in State Development Tax was to be made on proportional basis, rather than including it in the monetary limit specified in Column 5 of Annexure-1 and the limit in the eligibility certificate. 12. In our opinion, the High Court was correct in holding that the respondent assessees would be entitled to the benefit of sub-section (3) to Section 3-H by seeking adjustment of the State Development Tax within the monetary limit specified in the eligibility certificate issued under Section 4-A. The monetary limit specified in the certificate issued under Section 4-A would refer to the monetary limits quantified in the eligibility certificate itself as well as the monetary limit set in Column 5 of Annexure-1. Sub-section (3) to Section 3-H does not prescribe that Column 4 in Annexure-1, which relates to exemption from or reduction in the rate of tax (denoted as percentage of the rate of tax normally applicable under the U.P. Act to the goods concerned), would be applicable in determining the monetary limit. Sub-section (3) to Section 3-H does not refer to the rate of tax, which is the subject matter of Column 4 of Annexure-1. 13. The legislature, while enacting sub-section (3) to Section 3-H (w.e.f. 01.05.2005), was conscious and aware of the different contours of the exemption/reduction in terms of Annexure–1 (published in U.P. Gazette dated 31.03.1995). However, while legislating, they had specified that the adjustment would be up to the monetary limits set in the eligibility certificate issued under Section 4-A which will include the last column of Annexure-1 viz., Monetary limit upto which the benefit of exemption from or reduction in the rate of tax under the Act together with the benefit of exemption from or reduction in the rate of tax under the Central Sales Tax Act, 1956 is admissible. Sub-section (3) to Section 3-H does not stipulate that the assessees would be only entitled to an adjustment/reduction to the extent specified in Column 4. This is clear from the corresponding amendment, which was made to Section 4-A (1) by inserting the words notwithstanding anything contained in any other provisions except the provisions of Section 3-H of this Act. [Substituted by U.P. Act No. 9 of 2005, for the words Notwithstanding anything contained in this Act, dated 24.03.2005 (w.e.f. 01.05.2005)] The legislature, therefore, wanted to insulate and protect the assessees from the effect of the notification or exemption under Section 4-A except to the extent stated in sub-section (3) to Section 3-H while imposing State Development Tax. Benefit under sub-section (3) to Section 3-H by adjustment is to be within the monetary limits. No other clause or stipulation under the notification issued vide Section 4-A would apply. Section 3-H(3) prevails over Section 4-A to the extent not saved by sub-section (3) to Section 3-H of the U.P. Trade Tax Act,1948. 14. It is a general rule of interpretation of taxing statutes that there is no room for any intendment and they are to be read in the light of what is clearly expressed and enforced literatim or ad verbum. There are no equitable considerations or implications or assumptions or presumptions as to import provisions to supply any assumed deficiency in taxing statutes (Commissioner of Customs (Import), Mumbai v. Dilip Kumar and Company and others, (2018) 9 SCC 1) .
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### Explanation:
10. This Court in State of Uttar Pradesh & Ors. v. M/s Systematic Conscom Limited, (2014) 13 SCC 627 had examined the contours of the State Development Tax under Section 3-H imposed w.e.f. 01.05.2005 and held that the provision imposes altogether a new tax on certain dealers whose turnover exceeds the prescribed limit. Section 3-H is a charging Section, which also prescribes the taxable event, the person on whom the tax is imposed and is obliged to pay the tax, the rate of tax and the measure or value to which the rate will apply for computing the tax in liability. Accordingly, the State Development Tax differs from the tax imposed under Section 3 (Liability to tax under the Act) of the U.P. Trade Tax Act, 1948.11. The Commissioner, Trade Tax, Uttar Pradesh vide circular no. 723 dated 03.05.2005 had inter alia specified that the adjustment under sub-section (3) of Section 3-H shall be accepted in the same manner, as the adjustment of normal amount of trade tax in eligibility certificate under Section 4-A. The interpretative consequence of the circular was read by the assessing authorities to mean that the adjustment in State Development Tax was to be made on proportional basis, rather than including it in the monetary limit specified in Column 5 of Annexure-1 and the limit in the eligibility certificate.12. In our opinion, the High Court was correct in holding that the respondent assessees would be entitled to the benefit of sub-section (3) to Section 3-H by seeking adjustment of the State Development Tax within the monetary limit specified in the eligibility certificate issued under Section 4-A. The monetary limit specified in the certificate issued under Section 4-A would refer to the monetary limits quantified in the eligibility certificate itself as well as the monetary limit set in Column 5 of Annexure-1. Sub-section (3) to Section 3-H does not prescribe that Column 4 in Annexure-1, which relates to exemption from or reduction in the rate of tax (denoted as percentage of the rate of tax normally applicable under the U.P. Act to the goods concerned), would be applicable in determining the monetary limit. Sub-section (3) to Section 3-H does not refer to the rate of tax, which is the subject matter of Column 4 of Annexure-1.This is clear from the corresponding amendment, which was made to Section 4-A (1) by inserting the words notwithstanding anything contained in any other provisions except the provisions of Section 3-H of this Act. [Substituted by U.P. Act No. 9 of 2005, for the words Notwithstanding anything contained in this Act, dated 24.03.2005 (w.e.f. 01.05.2005)] The legislature, therefore, wanted to insulate and protect the assessees from the effect of the notification or exemption under Section 4-A except to the extent stated in sub-section (3) to Section 3-H while imposing State Development Tax. Benefit under sub-section (3) to Section 3-H by adjustment is to be within the monetary limits. No other clause or stipulation under the notification issued vide Section 4-A would apply. Section 3-H(3) prevails over Section 4-A to the extent not saved by sub-section (3) to Section 3-H of the U.P. Trade Tax Act,1948.14. It is a general rule of interpretation of taxing statutes that there is no room for any intendment and they are to be read in the light of what is clearly expressed and enforced literatim or ad verbum. There are no equitable considerations or implications or assumptions or presumptions as to import provisions to supply any assumed deficiency in taxing statutes (Commissioner of Customs (Import), Mumbai v. Dilip Kumar and Company and others, (2018) 9 SCC 1) .
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MUNICIPAL CORPORATION Vs. BVG INDIA LIMITED | necessarily taken into consideration by the technical expert. In all fairness, respondent no.1 ought to have disclosed these factors in its bid. In view of the same, in our considered opinion, the High Court was not justified in increasing the marks for responsiveness from 5 to 10. 2. Evaluation of financial bid: 45. The method for evaluation of the financial bid as applied by the High Court is also not proper, and is illogical. As mentioned supra, the technical expert, in our considered opinion, has rightly applied the following formula in respect of the bidders so far as financial bids are concerned: FL1 x 20 FL2/FL3/FL4 On the other hand, the High Court has redone the evaluating formula in which multiplication of 20 is not adopted: FL1 FL2/FL3/FL4 Since the multiplication of 20 is not adopted by the High Court (the same rightly adopted by the technical expert in respect of the bidders), the same has led to unreasonableness and a travesty of justice. The formula adopted by the High Court does not stand to reason at all. The NIT has prescribed the method of calculation of marks for the financial bid. The lowest bid, i.e., FL1 will be granted 20 marks. Other parties will thereafter be given scores by the formula (prescribed in Clause 3.1.3 of Article III of the NIT), i.e., FL1/FL2 x 20 = FL2?s financial score. In the matter on hand, FL1 of BVG India Limited was 1454, whereas FL2 was 1710, which was of the successful bidder, i.e., Global Waste Management Cell Pvt. Ltd. Thus, 1454 (FL1) divided by 1710(FL2), multiplied by 20 marks, gives 17 marks to Global Waste Management Cell Pvt. Ltd., so far as the financial bid is concerned. Per contra, the High Court has failed to multiply the ratio of financial bids with marks of 20 and thus has erroneously arrived at the score of 0.85 marks instead of 17 marks.46. The High Court observed in para 25 of the impugned judgment that the technical consultant had wrongly relied upon the certificate dated 16.07.2015 issued by Mira Bhayandar to qualify the successful bidder as the technical expert had prepared the technical evaluation report on 6.6.2015. The observation of the High Court was that, on the date of technical evaluation, the certificate issued by Mira Bhayandar was not in existence. Records reveal that the technical expert had not relied upon the certificate dated 16.07.2015. The said certificate was an additional document submitted for the first time before the High Court along with the reply affidavit as per annexures R4 to R6. Whereas, the document submitted in respect of Mira Bhayandar by the successful bidder was a certificate dated 15.1.2015, which was much prior to the technical evaluation report dated 6.6.2015. The same is clear from Annexure R-21 of the counter affidavit filed on behalf of the successful bidder. Therefore, the observations and the findings of the High Court in respect of the certificate issued by Mira Bhayandar are not correct.47. In the matter on hand, we do not find either the decision-making process or the decision to be arbitrary or irrational.48. The authority concerned is in the best position to find out the best person or the best quotation depending on the work to be entrusted under the contract. If a bidder had faced a number of show-cause notices from various municipal corporations in the matter of non-performance of door to door collection of garbage etc., the Court cannot compel the authority to choose such undeserving person/company to carry out the work. Ultimately, the public interest must be safeguarded. The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously and effectively. The public would also be interested in the quality of work undertaken. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in re-doing the entire work. Lethargy or tardiness in collecting door to door garbage on a day-to-day basis would definitely lead to increase collection of garbage on the roads and public properties, which leads to health hazards and also reduces the cleanliness of the city. Since the public is directly interested and would be affected if the work entrusted is not carried out appropriately, and as the technical expert has found that respondent no.1 would not be a suitable company to be entrusted the work inasmuch as it had faced 73 show-cause notices from different Municipal Corporations, the High Court could not have interfered with the decision taken by the authority. In our considered opinion, the High Court has ignored the element of public interest involved in the matter.49. As aforementioned, unless the Court concludes that the decision making process or the decision taken by the authority bristles with mala fides, arbitrariness, or perversity, or that the authority has intended to favour someone, the Constitutional Court will not interfere with the decision-making process or the decision.50. Thus, the questions to be decided in this appeal are answered as follows: (a) Under the scope of judicial review, the High Court could not ordinarily interfere with the judgment of the expert consultant on the issues of technical qualifications of a bidder when the consultant takes into consideration various factors including the basis of non-performance of the bidder; (b) A bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, cannot rely upon the technical qualifications of any 3 rd Party for its qualification. (c) It is not open to the Court to independently evaluate the technical bids and financial bids of the parties as an appellate authority for coming to its conclusion inasmuch as unless the thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, the Court ordinarily should exercise judicial restraint. | 1[ds]21. Thus, only when a decision making process is so arbitrary or irrational that no responsible authority proceeding reasonably or lawfully could have arrived at such decisions, power of judicial review can be exercised. However, if it is bona fide and in public interest, the Court will not interfere in the exercise of power of judicial review even if there is a procedural lacuna. The principles of equity and natural justice do not operate in the field of commercial transactions. Wherever a decision has been taken appropriately in public interest, the Court ordinarily should exercise judicial restraint. When a decision is taken by the concerned authority upon due consideration of the tender document submitted by all tenderers on their own merits and it is ultimately found that the successful bidder had in fact substantially complied with the purpose and object for which the essential conditions were laid down, the same may not ordinarily be interfered with.The contentions of Shri Banerji cannot be accepted, because the bid should be accepted not only based on the outcome of the financial bid, but also based on the evaluation of the technical bid. Moreover, in the matter on hand, the technical bid will have 80% marks whereas the financial bid will have 20% marks. This clearly shows that the municipal corporation has given due importance to the quality and not the financial aspect, keeping in mind the object for which bids are invited. A Constitution Bench of this Court in Trilochan Mishra Etc v. State of Orissa & Ors (1971) 3 SCC 153 held that the Government most certainly has a right to enter into a contract with a person well known to it, and especially one who has faithfully performed its contracts in the past in preference to an undesirable or unsuitable or untried person.In the matter on hand, admittedly, the successful bidder was more technically qualified and it got more marks. Normally, the contract could be awarded to the lowest bidder if it is in the public interest. Merely because the financial bid of BVG India Ltd. is the lowest, the requirement of compliance with the Rules and conditions cannot beAs rightly contended by respondent no. 3, a statutory authority granting licences should have the latitude to select the best offer on the terms and conditions prescribed. The technical expert in his report categorically statedthe above aspects demand high level of Technicalities and Expertise rather than just depending on lowest financial price quote for a materialclarified earlier, the power of judicial review can be exercised only if there is unreasonableness, irrationality or arbitrariness and in order to avoid bias and mala fides. This Court in Afcons Infrastructure (supra) held the same in the followingIn other words, a mere disagreement with the decision making process or the decision of the administrative authority is no reason for a constitutional Court to interfere. The threshold of mala fides, intention to favour someone or arbitrariness, irrationality or perversity must be met before the constitutional Court interferes with the decision making process or the decision.Evaluating tenders and awarding contracts are essentially commercial transactions/contracts. If the decision relating to award of contract is in public interest, the Courts will not, in exercise of the power of judicial review, interfere even if a procedural aberration or error in awarding the contract is made out. The power of judicial review will not be permitted to be invoked to protect private interest by ignoring public interest. Attempts by unsuccessful bidders with an artificial grievance and to get the purpose defeated by approaching the Court on some technical and procedural lapses, should be handled by Courts with firmness. The exercise of the power of judicial review should be avoided if there is no irrationality or arbitrariness. In the matter on hand, we do not find any illegality, arbitrariness, irrationality or unreasonableness on the part of the expert body while in action. So also, we do not find any bias or mala fides either on the part of the corporation or on the part of the technical expert while taking the decision. Moreover, the decision is taken keeping in mind the public interest and the work experience of the successful bidder.Since Global Waste Management Cell Private Limited, i.e., Appellant in Civil Appeal arising from SLP (C) No. 11967 of 2016 secured the highest score, i.e., 84.36, it emerged as the overall eligible bidder for awarding the project as per the terms of NIT. Global Waste Management Cell Private Limited has experience of 10 years and has demonstrated an ability for good responsiveness to tender. Consequently, it was declared L 1 as per the terms of the NIT. As a decision was qualitatively arrived at by the technical expert respondent no. 2, the High Court need not have gone into the merits of such decision as an appellate authority, especially when there was no bias or mala fide.40. It is necessary to note that in Annexure 1 to the NIT at serial no. 11, the bidder was required to set out details of any other company/firm involved as a consortium member to which respondent no.1 – BVG India Limited replied in the negative, which means no other company/firm was involved as a consortium member with BVG India Limited in the process in question. In other words, BVG India Limited submitted the bid on its own unaccompanied by any of the consortium member. Despite the same, BVG India Limited (respondent no.1) furnished the experience certificate of BVG Kshitij Waste Management Services Private Limited. No information whatsoever was given of the relationship/linkage of BVG Kshitij and respondent no.1 – BVG India Limited. Therefore, reliance placed by the respondent no.1 on the purported experience certificate issued in the name of BVG Kshitij Waste Management Services Pvt. Limited would not come to the help of the respondent no.1 to show its work experience. The Pimpri Chinchwad Municipal Corporation (PCMC) Certificate dated 24.10.2013 is in Marathi and the same discloses that the work order was issued on 2.3.2012. The PCMC Certificate thus neither shows three years? experience of BVG India Limited nor that BVG India Limited was carrying out garbage/waste collection of more than 300 MT per day. Since respondent no.1 has categorically mentioned in its bid under thehat no other company (either joint venture or consortium) is involved with BVG India Limited, respondent no.1 – BVG India Limited could not have relied upon the purported experience certificate issued in the name of BVG Kshitij Waste Management Services Pvt. Ltd. Other certificates submitted by the respondent no.1 also did not satisfy the eligibility requirement.41. Moreover, the certificate dated 21.4.2015 relied upon by the High Court in paragraph 16 of the impugned judgment was not part of the original bid document submitted by BVG India Limited and it was submitted before the High Court for the first time as per annexure P6 of the writ petition. Since such certificate was not part of the original bid document, the High Court was not correct in relying upon such certificate produced by BVG India Limited for the first time before it. The Courts will not permit any of the participants in the tender process to alter or supplement the bid document. In the absence of any document evidencing the experience in the field in question in favour of BVG India Ltd., the appellants are justified in contending that the High Court is not correct in increasing the marks from 5 to 7 under the head of number of years of experience and expertise. So also, the High Court was not correct in increasing the marks from 10 to 15 so far as the quantity of municipal solid waste handled per day through door to door collection is concerned. In para 26 of the impugned order, the High Court has evaluated technical eligibility on its own as if the appellate authority and has increased the marks of respondent no.1 for experience from 5 to 7 and for quantity handled per day from 10 to 15, as mentioned supra. The High Court?s observation in para 18 that the certificate issued by PCMC ought to have been considered because it shows the collection of 335 MT per day of municipal solid waste, appears to be incorrect in the light of our discussion made in theparagraphs. So far as the three documents relied upon by respondent no.1 in respect of CIDCO are concerned, those documents do not state that BVG India Limited was handling 300 MT per day municipal solid waste on door to door basis.42. The High Court was also not justified in increasing the marks for responsiveness from 5 to 10. The High Court relied upon the documents pertaining to BBMP and PCMC and has increased the marks from 5 to 10. In our considered opinion, the High Court could not have increased the marks for responsiveness as BVG India Limited had suppressed the fact that it had received show cause notices from BBMP and other corporations. The format ofon page 26 of the NIT indicates that the fourth column is reservedat the tenderer is or has been involved in. Point 4of the same?In how many of your MSW handling/processing projects, show cause notices have been issued for breach ofIndia Limited, while submittingleft the litigation column blank, despite the fact that admittedly, 73notices were issued to it by the BBMP. The fact that these notices were issued is not disputed by BVG India Limited. It instead claimed that the issuance ofnotices does not form part of the litigation.It was clearly stated in the NIT that the tenderer was required to reveal thenotices against it. Despite the specific column pertaining to the same in the bid document, respondent no.1 had left the said column blank. Once there is a specific clause requiring the mentioning of thenotices for the breach of contract, it was incumbent upon the tenderer to provide accurate information. As respondent no.1 has not done so, and has suppressed vital information, respondent no. 2 has rightly allotted it 5 marks for the same. As mentioned supra, respondent no.1 submitted an experience certificate issued by the PCMC in favour of one M/s BVG Kshitij Waste Management Services Pvt. Ltd. No material is produced before the Court to show that M/s BVG Kshitij Waste Management Services Pvt. Ltd. is the same as BVG India Limited or that it is a consortium member. In light of specific averment in the bid document by respondent no.1 that there is no other consortium member which has participated in the tender process along with BVG India Limited, the experience certificate issued in favour of BVG Kshitij Waste Management Services Pvt. Ltd cannot be relied upon to fulfil the eligibility criteria by the BVG India Limited. Respondent no.1 has submitted its bid as an individual bidder and not as a consortium and hence the certificate of a third party could not be considered for the benefit of meeting the technical qualification of respondent no.1. In addition to the same, the respondent no.1 had suppressed 73 show cause notices issued against it by BBMP and District Panchayat, Dadra and Nagar Haveli, Silvasa in respect of the work relating to solid waste management. Despite suppression by the respondent no.1, the technical expert from its own sources gathered information and found that 73 show cause notices were issued by the BBMP and others against respondent no.1, which reveal that respondent no.1 had not shown due diligence in the work of door to door collection of solid waste. Hence, the conclusion reached by the High Court that it was not open for the technical committee to suo motu take into consideration the73 show cause notices issued against the respondent no.1 while evaluating the technical bid is not correct. The due diligence and experience of the expert consultant ought to have been appreciated by the High Court keeping in mind the object to which bids were invited. 73 show cause notices issued to respondent no.1 establish that respondent no.1 did not have a good track record and therefore such notices were necessarily taken into consideration by the technical expert. In all fairness, respondent no.1 ought to have disclosed these factors in its bid. In viewin our considered opinion, the High Court was not justified in increasing the marks for responsiveness from 5 to 10.The method for evaluation of the financial bid as applied by the High Court is also not proper, and is illogical. As mentioned supra, the technical expert, in our considered opinion, has rightly applied the following formula in respect of the bidders so far as financial bids are concerned: FL1 x 20 FL2/FL3/FL4 On the other hand, the High Court has redone the evaluating formula in which multiplication of 20 is not adopted: FL1 FL2/FL3/FL4 Since the multiplication of 20 is not adopted by the High Court (the same rightly adopted by the technical expert in respect of the bidders), the same has led to unreasonableness and a travesty of justice. The formula adopted by the High Court does not stand to reason at all. The NIT has prescribed the method of calculation of marks for the financial bid. The lowest bid, i.e., FL1 will be granted 20 marks. Other parties will thereafter be given scores by the formula (prescribed in Clause 3.1.3 of Article III of the NIT), i.e., FL1/FL2 x 20 = FL2?s financial score. In the matter on hand, FL1 of BVG India Limited was 1454, whereas FL2 was 1710, which was of the successful bidder, i.e., Global Waste Management Cell Pvt. Ltd. Thus, 1454 (FL1) divided by 1710(FL2), multiplied by 20 marks, gives 17 marks to Global Waste Management Cell Pvt. Ltd., so far as the financial bid is concerned. Per contra, the High Court has failed to multiply the ratio of financial bids with marks of 20 and thus has erroneously arrived at the score of 0.85 marks instead of 17 marks.46. The High Court observed in para 25 of the impugned judgment that the technical consultant had wrongly relied upon the certificate dated 16.07.2015 issued by Mira Bhayandar to qualify the successful bidder as the technical expert had prepared the technical evaluation report on 6.6.2015. The observation of the High Court was that, on the date of technical evaluation, the certificate issued by Mira Bhayandar was not in existence. Records reveal that the technical expert had not relied upon the certificate dated 16.07.2015. The said certificate was an additional document submitted for the first time before the High Court along with the reply affidavit as per annexures R4 to R6. Whereas, the document submitted in respect of Mira Bhayandar by the successful bidder was a certificate dated 15.1.2015, which was much prior to the technical evaluation report dated 6.6.2015. The same is clear from Annexureof the counter affidavit filed on behalf of the successful bidder. Therefore, the observations and the findings of the High Court in respect of the certificate issued by Mira Bhayandar are not correct.47. In the matter on hand, we do not find either theprocess or the decision to be arbitrary or irrational.48. The authority concerned is in the best position to find out the best person or the best quotation depending on the work to be entrusted under the contract. If a bidder had faced a number ofnotices from various municipal corporations in the matter ofof door to door collection of garbage etc., the Court cannot compel the authority to choose such undeserving person/company to carry out the work. Ultimately, the public interest must be safeguarded. The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously and effectively. The public would also be interested in the quality of work undertaken. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times inredoing the entirework. Lethargy or tardiness in collecting door to door garbage on abasis would definitely lead to increase collection of garbage on the roads and public properties, which leads to health hazards and also reduces the cleanliness of the city. Since the public is directly interested and would be affected if the work entrusted is not carried out appropriately, and as the technical expert has found that respondent no.1 would not be a suitable company to be entrusted the work inasmuch as it had faced 73notices from different Municipal Corporations, the High Court could not have interfered with the decision taken by the authority. In our considered opinion, the High Court has ignored the element of public interest involved in the matter.49. As aforementioned, unless the Court concludes that the decision making process or the decision taken by the authority bristles with mala fides, arbitrariness, or perversity, or that the authority has intended to favour someone, the Constitutional Court will not interfere with theprocess or the decision.50. Thus, the questions to be decided in this appeal are answered as follows: (a) Under the scope of judicial review, the High Court could not ordinarily interfere with the judgment of the expert consultant on the issues of technical qualifications of a bidder when the consultant takes into consideration various factors including the basis ofof the bidder;(b) A bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, cannot rely upon the technical qualifications of any 3 rd Party for its qualification. (c) It is not open to the Court to independently evaluate the technical bids and financial bids of the parties as an appellate authority for coming to its conclusion inasmuch as unless the thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, the Court ordinarily should exercise judicial restraint. | 1 | 12,401 | 3,244 | ### 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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necessarily taken into consideration by the technical expert. In all fairness, respondent no.1 ought to have disclosed these factors in its bid. In view of the same, in our considered opinion, the High Court was not justified in increasing the marks for responsiveness from 5 to 10. 2. Evaluation of financial bid: 45. The method for evaluation of the financial bid as applied by the High Court is also not proper, and is illogical. As mentioned supra, the technical expert, in our considered opinion, has rightly applied the following formula in respect of the bidders so far as financial bids are concerned: FL1 x 20 FL2/FL3/FL4 On the other hand, the High Court has redone the evaluating formula in which multiplication of 20 is not adopted: FL1 FL2/FL3/FL4 Since the multiplication of 20 is not adopted by the High Court (the same rightly adopted by the technical expert in respect of the bidders), the same has led to unreasonableness and a travesty of justice. The formula adopted by the High Court does not stand to reason at all. The NIT has prescribed the method of calculation of marks for the financial bid. The lowest bid, i.e., FL1 will be granted 20 marks. Other parties will thereafter be given scores by the formula (prescribed in Clause 3.1.3 of Article III of the NIT), i.e., FL1/FL2 x 20 = FL2?s financial score. In the matter on hand, FL1 of BVG India Limited was 1454, whereas FL2 was 1710, which was of the successful bidder, i.e., Global Waste Management Cell Pvt. Ltd. Thus, 1454 (FL1) divided by 1710(FL2), multiplied by 20 marks, gives 17 marks to Global Waste Management Cell Pvt. Ltd., so far as the financial bid is concerned. Per contra, the High Court has failed to multiply the ratio of financial bids with marks of 20 and thus has erroneously arrived at the score of 0.85 marks instead of 17 marks.46. The High Court observed in para 25 of the impugned judgment that the technical consultant had wrongly relied upon the certificate dated 16.07.2015 issued by Mira Bhayandar to qualify the successful bidder as the technical expert had prepared the technical evaluation report on 6.6.2015. The observation of the High Court was that, on the date of technical evaluation, the certificate issued by Mira Bhayandar was not in existence. Records reveal that the technical expert had not relied upon the certificate dated 16.07.2015. The said certificate was an additional document submitted for the first time before the High Court along with the reply affidavit as per annexures R4 to R6. Whereas, the document submitted in respect of Mira Bhayandar by the successful bidder was a certificate dated 15.1.2015, which was much prior to the technical evaluation report dated 6.6.2015. The same is clear from Annexure R-21 of the counter affidavit filed on behalf of the successful bidder. Therefore, the observations and the findings of the High Court in respect of the certificate issued by Mira Bhayandar are not correct.47. In the matter on hand, we do not find either the decision-making process or the decision to be arbitrary or irrational.48. The authority concerned is in the best position to find out the best person or the best quotation depending on the work to be entrusted under the contract. If a bidder had faced a number of show-cause notices from various municipal corporations in the matter of non-performance of door to door collection of garbage etc., the Court cannot compel the authority to choose such undeserving person/company to carry out the work. Ultimately, the public interest must be safeguarded. The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously and effectively. The public would also be interested in the quality of work undertaken. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times in re-doing the entire work. Lethargy or tardiness in collecting door to door garbage on a day-to-day basis would definitely lead to increase collection of garbage on the roads and public properties, which leads to health hazards and also reduces the cleanliness of the city. Since the public is directly interested and would be affected if the work entrusted is not carried out appropriately, and as the technical expert has found that respondent no.1 would not be a suitable company to be entrusted the work inasmuch as it had faced 73 show-cause notices from different Municipal Corporations, the High Court could not have interfered with the decision taken by the authority. In our considered opinion, the High Court has ignored the element of public interest involved in the matter.49. As aforementioned, unless the Court concludes that the decision making process or the decision taken by the authority bristles with mala fides, arbitrariness, or perversity, or that the authority has intended to favour someone, the Constitutional Court will not interfere with the decision-making process or the decision.50. Thus, the questions to be decided in this appeal are answered as follows: (a) Under the scope of judicial review, the High Court could not ordinarily interfere with the judgment of the expert consultant on the issues of technical qualifications of a bidder when the consultant takes into consideration various factors including the basis of non-performance of the bidder; (b) A bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, cannot rely upon the technical qualifications of any 3 rd Party for its qualification. (c) It is not open to the Court to independently evaluate the technical bids and financial bids of the parties as an appellate authority for coming to its conclusion inasmuch as unless the thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, the Court ordinarily should exercise judicial restraint.
### Response:
1
### Explanation:
object to which bids were invited. 73 show cause notices issued to respondent no.1 establish that respondent no.1 did not have a good track record and therefore such notices were necessarily taken into consideration by the technical expert. In all fairness, respondent no.1 ought to have disclosed these factors in its bid. In viewin our considered opinion, the High Court was not justified in increasing the marks for responsiveness from 5 to 10.The method for evaluation of the financial bid as applied by the High Court is also not proper, and is illogical. As mentioned supra, the technical expert, in our considered opinion, has rightly applied the following formula in respect of the bidders so far as financial bids are concerned: FL1 x 20 FL2/FL3/FL4 On the other hand, the High Court has redone the evaluating formula in which multiplication of 20 is not adopted: FL1 FL2/FL3/FL4 Since the multiplication of 20 is not adopted by the High Court (the same rightly adopted by the technical expert in respect of the bidders), the same has led to unreasonableness and a travesty of justice. The formula adopted by the High Court does not stand to reason at all. The NIT has prescribed the method of calculation of marks for the financial bid. The lowest bid, i.e., FL1 will be granted 20 marks. Other parties will thereafter be given scores by the formula (prescribed in Clause 3.1.3 of Article III of the NIT), i.e., FL1/FL2 x 20 = FL2?s financial score. In the matter on hand, FL1 of BVG India Limited was 1454, whereas FL2 was 1710, which was of the successful bidder, i.e., Global Waste Management Cell Pvt. Ltd. Thus, 1454 (FL1) divided by 1710(FL2), multiplied by 20 marks, gives 17 marks to Global Waste Management Cell Pvt. Ltd., so far as the financial bid is concerned. Per contra, the High Court has failed to multiply the ratio of financial bids with marks of 20 and thus has erroneously arrived at the score of 0.85 marks instead of 17 marks.46. The High Court observed in para 25 of the impugned judgment that the technical consultant had wrongly relied upon the certificate dated 16.07.2015 issued by Mira Bhayandar to qualify the successful bidder as the technical expert had prepared the technical evaluation report on 6.6.2015. The observation of the High Court was that, on the date of technical evaluation, the certificate issued by Mira Bhayandar was not in existence. Records reveal that the technical expert had not relied upon the certificate dated 16.07.2015. The said certificate was an additional document submitted for the first time before the High Court along with the reply affidavit as per annexures R4 to R6. Whereas, the document submitted in respect of Mira Bhayandar by the successful bidder was a certificate dated 15.1.2015, which was much prior to the technical evaluation report dated 6.6.2015. The same is clear from Annexureof the counter affidavit filed on behalf of the successful bidder. Therefore, the observations and the findings of the High Court in respect of the certificate issued by Mira Bhayandar are not correct.47. In the matter on hand, we do not find either theprocess or the decision to be arbitrary or irrational.48. The authority concerned is in the best position to find out the best person or the best quotation depending on the work to be entrusted under the contract. If a bidder had faced a number ofnotices from various municipal corporations in the matter ofof door to door collection of garbage etc., the Court cannot compel the authority to choose such undeserving person/company to carry out the work. Ultimately, the public interest must be safeguarded. The public would be directly interested in the timely fulfilment of the contract so that the services become available to the public expeditiously and effectively. The public would also be interested in the quality of work undertaken. Poor quality of work or goods can lead to tremendous public hardship and substantial financial outlay either in correcting mistakes or in rectifying defects or even at times inredoing the entirework. Lethargy or tardiness in collecting door to door garbage on abasis would definitely lead to increase collection of garbage on the roads and public properties, which leads to health hazards and also reduces the cleanliness of the city. Since the public is directly interested and would be affected if the work entrusted is not carried out appropriately, and as the technical expert has found that respondent no.1 would not be a suitable company to be entrusted the work inasmuch as it had faced 73notices from different Municipal Corporations, the High Court could not have interfered with the decision taken by the authority. In our considered opinion, the High Court has ignored the element of public interest involved in the matter.49. As aforementioned, unless the Court concludes that the decision making process or the decision taken by the authority bristles with mala fides, arbitrariness, or perversity, or that the authority has intended to favour someone, the Constitutional Court will not interfere with theprocess or the decision.50. Thus, the questions to be decided in this appeal are answered as follows: (a) Under the scope of judicial review, the High Court could not ordinarily interfere with the judgment of the expert consultant on the issues of technical qualifications of a bidder when the consultant takes into consideration various factors including the basis ofof the bidder;(b) A bidder who submits a bid expressly declaring that it is submitting the same independently and without any partners, consortium or joint venture, cannot rely upon the technical qualifications of any 3 rd Party for its qualification. (c) It is not open to the Court to independently evaluate the technical bids and financial bids of the parties as an appellate authority for coming to its conclusion inasmuch as unless the thresholds of mala fides, intention to favour someone or bias, arbitrariness, irrationality or perversity are met, where a decision is taken purely on public interest, the Court ordinarily should exercise judicial restraint.
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Deccan Merchants Co-operative Bank Limited Vs. M/s. Dalichand Jugraj Jain & Others | landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply an to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions, and subject to the pro- visions of sub-section (2), no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question...."This section expressly bars the jurisdiction of other Courts to entertain any suit, proceeding or application between a land. lord and tenant relating to the recovery of possession of any premises and confers jurisdiction on the Courts mentioned in Section 28 to entertain the matter pending before the nominee of the Registrar. But it is said that the Registrar is not a Court within the meaning of Section 28 of the Act. This Court held in Thakur Jugal Kishore Sinha v. Sitamurhi Central Co-operative Bank Ltd., 1967-3 SCR 163 =(AIR 1967 SC 1494 ) that the Assistant Registrar, Co-operative Societies, acting under Section 48 of the Bihar and Orissa Co-operative Societies Act, 1935, was functioning as a Court subordinate to the High Court for the purpose of Section 3 of the Contempt of Courts Act, 1952. It was urged before us that the Registrar is also a Court for the purposes of S. 28 of the Rent Act. We need not decide this question because it seems to us that the jurisdiction of the Registrar is ousted on broader considerations.33. Both Section 91 of the Act and Section 28 of the Rent Act start by excluding "anything contained in any other law". As observed by this Court in Shri Ram Narain v. Simla Banking Industrial Co., Ltd., 1956 SCR 603 at p. 615 = (AIR 1956 SC 614 at p. 622),"it is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein."We may mention that the two Acts which this Court had to deal with in that case were the Banking Companies Act, 1949 (X of 1949) and the Displaced Persons (Debts Adjustment) Act, 1951 (LXX of 1951).34. The preamble of the Rent Act states;"Whereas it is expedient to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and evictions."Section 4 of the Rent Act exempts certain premises from its operation but it does not exempt premises belonging to cooperative societies. It is common ground that the Rent Act applies to the premises in question, Section 11 of the Rent Act deals with the fixing of standard rent and Section 12 provides that"a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act",and it lays down procedure for the filing of a suit for the recovery of possession by landlord and for other matters. Section 13 provides that a landlord may recover possession of any premises under certain conditions. Section 28 provides for jurisdiction of the Courts to deal with the suits and proceedings. Section 29 provides for appeals.35. If the matter is heard by the Registrar, none of these provisions would apply. We can hardly imagine that it was the intention of the legislattlre to deprive tenants in buildings owned by co-operative societies of the benefits given by the Rent Act.It seems to us that the Act was passed, in the main, to shorten litigation, lessen its costs and to provide a summary procedure for the determination of the disputes relating to the internal management of the societies. But under the Rent Act a different social objective is intended to be achieved and for achieving that social objective it is necessary that a dispute between the landlord and the tenant should be dealt with by the Courts set up under the Rent Act and in accordance with the special provisions of the Rent Act. This social objective does not impinge on the objective underlying the Act.. It seems to us that the two acts can be harmonised best by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act, should apply. In view of these considerations we are of the opinion that Section 91 of the Act does not affect the provisions of Section 28 of the Rent Act.36. We may now refer to the incidental points raised by the learned Counsel for the appellant.37. In our opinion, the High Court has jurisdiction to go into the disputed questions of fact and to quash an interlocutory order even though some sort of alternative remedy exists under Sec. 154 of the Act. Section 154 of the Act inter alia enables the State Government to call for and examine the record of any inquiry or the proceedings of any other matter of any officer subordinate to them. This remedy can hardly be treated as an altemative remedy for the purposes of deciding the questions raised by the petitioners.38. It is not necessary to deal with the third point raised by the learned Counsel for the Bank, namely, that the Registrar when making an order under Section 91 (2) of the Act, is concerned only with the averments in the plaint. Even if it is so it does not disable the petitioners from raising the point that on the facts as presented by them the provisions of Sec. 91 of the Act did not apply to the dispute. | 0[ds]16. The answer depends on the words used in the Act. Although number of cases have been cited to us on similar expressions contained in various other Acts, both Indian and English, in the first instance, it is advisable to restrict the enquiry to the terms of the enactment itself, because the legislatures have been changing the words and expanding the scope of references to arbitrators or to the Registrars step byIn this case, the society is abank and ordinarily abank cannot be said to be engaged in business when it lets out properties owned byTherefore, it seems to us that the present dispute between a tenant and a member of the bank in a building which has subsaqently been acquired by the Bank cannot be said to be a dispute touching the business of the Bank, and the appeal should fail on this short ground.While we agree that the nature of business which a society does can be ascertained from the objects of the society, it is difficult to subscribe to the proposition that whatever the society does or is necessarily required to do for the purpose of carrying out its objects can be said to be part of its business. We however, agree that the word "touching" is very wide and would include any matter which relates to or concerns the business of a society, but we are doubtful whether the word "affects" should also be used in defining the scope of the word "touching".22. One other limitation on the "dispute" may also be placed and that is that the word "dispute covers only those disputes which are capable of being resolved by the Registrar or his nominee. It seems to us very doubtful that the word "dispute" would include a dispute between a landlord society and a tenant when the landlord society has not been set up for the purpose of constructing or buying and letting out houses. In the presence of various rent Acts which give special privileges to tenants it would be difficult to say that such disputes were intended to be referred to the Registrar.Of course, this result may also follow from the interpretation of the Rent Act and theSocieties Act by applying other principles of construction.The appeal must also fail on the ground that even if it is a dispute touching the business of the society within the meaning of Section 91 (1) of the Act, it is not a dispute between a society and a member or a person claiming through a member.It seems to us that before a person can be said to claim through a member, the claim should arise through a transaction or dealing which the member entered into with the society as a member. If a member entered into a transaction with the society not as a member but as a stranger, then he must be covered, if at all, by the provisions of Section 91(1) (a) or (c). But once it is held that the original transaction was entered into by the member with the society as a member then any person who claims rights or title through that member must come within the provisions of Section 91 (1)reasoning of the Nagpur High Court does not appeal to us. Even if the expression "business of asociety" occurring in the Rule is treated as not restricted to the dealings with the members of the society only but to include business which thesocieties under the law are empowered to transact, this does not mean that whenever a member enters into any transaction whatsoever with the society and a dispute arises out of that transaction then that dispute is a dispute between the society and a member of the society within the meaning of Rule 26. The High Court did not rest its conclusion on the words "or any office" occurring in R. 26, although it referred to the meaning of the word "Officer. Therefore, we need not consider whether the decision can be sustained on that part of the Rule.29. In our opinion, the view expressed by the Madras, Bombay and Kerala High Courts is preferable to the view expressed by the Madhya Pradesh and the Nagpur High Courts.It seems to us that when the original owner executed the lease, he was not acting as a member but as a mortgagor in possession, and therefore, the Banks claim does not fall within Section 91 (1) (b) of theThe scheme of the various Rent Acts and the public policy underlying them are clear; the policy is to give protection to the tenants. Various powers have been conferred on the authorities under the Rent Acts to grant protection to the tenants against ejectment and other reliefs claimed by the landlords.section expressly bars the jurisdiction of other Courts to entertain any suit, proceeding or application between a land. lord and tenant relating to the recovery of possession of any premises and confers jurisdiction on the Courts mentioned in Section 28 to entertain the matter pending before the nominee of the Registrar.was urged before us that the Registrar is also a Court for the purposes of S. 28 of the Rent Act. We need not decide this question because it seems to us that the jurisdiction of the Registrar is ousted on broader considerations.If the matter is heard by the Registrar, none of these provisions would apply. We can hardly imagine that it was the intention of the legislattlre to deprive tenants in buildings owned bysocieties of the benefits given by the Rent Act.It seems to us that the Act was passed, in the main, to shorten litigation, lessen its costs and to provide a summary procedure for the determination of the disputes relating to the internal management of the societies. But under the Rent Act a different social objective is intended to be achieved and for achieving that social objective it is necessary that a dispute between the landlord and the tenant should be dealt with by the Courts set up under the Rent Act and in accordance with the special provisions of the Rent Act. This social objective does not impinge on the objective underlying the Act.. It seems to us that the two acts can be harmonised best by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act, should apply. In view of these considerations we are of the opinion that Section 91 of the Act does not affect the provisions of Section 28 of the Rent Act.In our opinion, the High Court has jurisdiction to go into the disputed questions of fact and to quash an interlocutory order even though some sort of alternative remedy exists under Sec. 154 of the Act. Section 154 of the Act inter alia enables the State Government to call for and examine the record of any inquiry or the proceedings of any other matter of any officer subordinate to them. This remedy can hardly be treated as an altemative remedy for the purposes of deciding the questions raised by the petitioners.38. It is not necessary to deal with the third point raised by the learned Counsel for the Bank, namely, that the Registrar when making an order under Section 91 (2) of the Act, is concerned only with the averments in the plaint. Even if it is so it does not disable the petitioners from raising the point that on the facts as presented by them the provisions of Sec. 91 of the Act did not apply to the dispute. | 0 | 7,138 | 1,361 | ### Instruction:
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landlord and a tenant relating to the recovery of rent or possession of any premises to which any of the provisions of this Part apply an to decide any application made under this Act and to deal with any claim or question arising out of this Act or any of its provisions, and subject to the pro- visions of sub-section (2), no other Court shall have jurisdiction to entertain any such suit, proceeding or application or to deal with such claim or question...."This section expressly bars the jurisdiction of other Courts to entertain any suit, proceeding or application between a land. lord and tenant relating to the recovery of possession of any premises and confers jurisdiction on the Courts mentioned in Section 28 to entertain the matter pending before the nominee of the Registrar. But it is said that the Registrar is not a Court within the meaning of Section 28 of the Act. This Court held in Thakur Jugal Kishore Sinha v. Sitamurhi Central Co-operative Bank Ltd., 1967-3 SCR 163 =(AIR 1967 SC 1494 ) that the Assistant Registrar, Co-operative Societies, acting under Section 48 of the Bihar and Orissa Co-operative Societies Act, 1935, was functioning as a Court subordinate to the High Court for the purpose of Section 3 of the Contempt of Courts Act, 1952. It was urged before us that the Registrar is also a Court for the purposes of S. 28 of the Rent Act. We need not decide this question because it seems to us that the jurisdiction of the Registrar is ousted on broader considerations.33. Both Section 91 of the Act and Section 28 of the Rent Act start by excluding "anything contained in any other law". As observed by this Court in Shri Ram Narain v. Simla Banking Industrial Co., Ltd., 1956 SCR 603 at p. 615 = (AIR 1956 SC 614 at p. 622),"it is, therefore, desirable to determine the overriding effect of one or the other of the relevant provisions in these two acts, in a given case, on much broader considerations of the purpose and policy underlying the two Acts and the clear intendment conveyed by the language of the relevant provisions therein."We may mention that the two Acts which this Court had to deal with in that case were the Banking Companies Act, 1949 (X of 1949) and the Displaced Persons (Debts Adjustment) Act, 1951 (LXX of 1951).34. The preamble of the Rent Act states;"Whereas it is expedient to amend and consolidate the law relating to the control of rents and repairs of certain premises, of rates of hotels and lodging houses and evictions."Section 4 of the Rent Act exempts certain premises from its operation but it does not exempt premises belonging to cooperative societies. It is common ground that the Rent Act applies to the premises in question, Section 11 of the Rent Act deals with the fixing of standard rent and Section 12 provides that"a landlord shall not be entitled to the recovery of possession of any premises so long as the tenant pays, or is ready and willing to pay, the amount of the standard rent and permitted increases, if any, and observes and performs the other conditions of the tenancy, in so far as they are consistent with the provisions of this Act",and it lays down procedure for the filing of a suit for the recovery of possession by landlord and for other matters. Section 13 provides that a landlord may recover possession of any premises under certain conditions. Section 28 provides for jurisdiction of the Courts to deal with the suits and proceedings. Section 29 provides for appeals.35. If the matter is heard by the Registrar, none of these provisions would apply. We can hardly imagine that it was the intention of the legislattlre to deprive tenants in buildings owned by co-operative societies of the benefits given by the Rent Act.It seems to us that the Act was passed, in the main, to shorten litigation, lessen its costs and to provide a summary procedure for the determination of the disputes relating to the internal management of the societies. But under the Rent Act a different social objective is intended to be achieved and for achieving that social objective it is necessary that a dispute between the landlord and the tenant should be dealt with by the Courts set up under the Rent Act and in accordance with the special provisions of the Rent Act. This social objective does not impinge on the objective underlying the Act.. It seems to us that the two acts can be harmonised best by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act, should apply. In view of these considerations we are of the opinion that Section 91 of the Act does not affect the provisions of Section 28 of the Rent Act.36. We may now refer to the incidental points raised by the learned Counsel for the appellant.37. In our opinion, the High Court has jurisdiction to go into the disputed questions of fact and to quash an interlocutory order even though some sort of alternative remedy exists under Sec. 154 of the Act. Section 154 of the Act inter alia enables the State Government to call for and examine the record of any inquiry or the proceedings of any other matter of any officer subordinate to them. This remedy can hardly be treated as an altemative remedy for the purposes of deciding the questions raised by the petitioners.38. It is not necessary to deal with the third point raised by the learned Counsel for the Bank, namely, that the Registrar when making an order under Section 91 (2) of the Act, is concerned only with the averments in the plaint. Even if it is so it does not disable the petitioners from raising the point that on the facts as presented by them the provisions of Sec. 91 of the Act did not apply to the dispute.
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placed and that is that the word "dispute covers only those disputes which are capable of being resolved by the Registrar or his nominee. It seems to us very doubtful that the word "dispute" would include a dispute between a landlord society and a tenant when the landlord society has not been set up for the purpose of constructing or buying and letting out houses. In the presence of various rent Acts which give special privileges to tenants it would be difficult to say that such disputes were intended to be referred to the Registrar.Of course, this result may also follow from the interpretation of the Rent Act and theSocieties Act by applying other principles of construction.The appeal must also fail on the ground that even if it is a dispute touching the business of the society within the meaning of Section 91 (1) of the Act, it is not a dispute between a society and a member or a person claiming through a member.It seems to us that before a person can be said to claim through a member, the claim should arise through a transaction or dealing which the member entered into with the society as a member. If a member entered into a transaction with the society not as a member but as a stranger, then he must be covered, if at all, by the provisions of Section 91(1) (a) or (c). But once it is held that the original transaction was entered into by the member with the society as a member then any person who claims rights or title through that member must come within the provisions of Section 91 (1)reasoning of the Nagpur High Court does not appeal to us. Even if the expression "business of asociety" occurring in the Rule is treated as not restricted to the dealings with the members of the society only but to include business which thesocieties under the law are empowered to transact, this does not mean that whenever a member enters into any transaction whatsoever with the society and a dispute arises out of that transaction then that dispute is a dispute between the society and a member of the society within the meaning of Rule 26. The High Court did not rest its conclusion on the words "or any office" occurring in R. 26, although it referred to the meaning of the word "Officer. Therefore, we need not consider whether the decision can be sustained on that part of the Rule.29. In our opinion, the view expressed by the Madras, Bombay and Kerala High Courts is preferable to the view expressed by the Madhya Pradesh and the Nagpur High Courts.It seems to us that when the original owner executed the lease, he was not acting as a member but as a mortgagor in possession, and therefore, the Banks claim does not fall within Section 91 (1) (b) of theThe scheme of the various Rent Acts and the public policy underlying them are clear; the policy is to give protection to the tenants. Various powers have been conferred on the authorities under the Rent Acts to grant protection to the tenants against ejectment and other reliefs claimed by the landlords.section expressly bars the jurisdiction of other Courts to entertain any suit, proceeding or application between a land. lord and tenant relating to the recovery of possession of any premises and confers jurisdiction on the Courts mentioned in Section 28 to entertain the matter pending before the nominee of the Registrar.was urged before us that the Registrar is also a Court for the purposes of S. 28 of the Rent Act. We need not decide this question because it seems to us that the jurisdiction of the Registrar is ousted on broader considerations.If the matter is heard by the Registrar, none of these provisions would apply. We can hardly imagine that it was the intention of the legislattlre to deprive tenants in buildings owned bysocieties of the benefits given by the Rent Act.It seems to us that the Act was passed, in the main, to shorten litigation, lessen its costs and to provide a summary procedure for the determination of the disputes relating to the internal management of the societies. But under the Rent Act a different social objective is intended to be achieved and for achieving that social objective it is necessary that a dispute between the landlord and the tenant should be dealt with by the Courts set up under the Rent Act and in accordance with the special provisions of the Rent Act. This social objective does not impinge on the objective underlying the Act.. It seems to us that the two acts can be harmonised best by holding that in matters covered by the Rent Act, its provisions, rather than the provisions of the Act, should apply. In view of these considerations we are of the opinion that Section 91 of the Act does not affect the provisions of Section 28 of the Rent Act.In our opinion, the High Court has jurisdiction to go into the disputed questions of fact and to quash an interlocutory order even though some sort of alternative remedy exists under Sec. 154 of the Act. Section 154 of the Act inter alia enables the State Government to call for and examine the record of any inquiry or the proceedings of any other matter of any officer subordinate to them. This remedy can hardly be treated as an altemative remedy for the purposes of deciding the questions raised by the petitioners.38. It is not necessary to deal with the third point raised by the learned Counsel for the Bank, namely, that the Registrar when making an order under Section 91 (2) of the Act, is concerned only with the averments in the plaint. Even if it is so it does not disable the petitioners from raising the point that on the facts as presented by them the provisions of Sec. 91 of the Act did not apply to the dispute.
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Commissioner of Income Tax, Uttar Pradesh Vs. Abdul Hai Azim Ullah | transferee. The transferor is called the lessor, the transferee is called the lessee and the price is called the premium and the money, etc., or other thing to be so rendered is called the rent4. On behalf of the appellant strong reliance has been placed on the observations of the Privy Council in Nidha Sah v. Murlidhar. In that case one Indarjit Lal executed an instrument purporting to be a mortgage with possession in respect of proprietary rights in certain villages for a period of 14 years. It was provided that on the expiration of the term the mortgagor" shall come in possession of the mortgaged villages without settlement of accounts..... that on the expiration of the term..... the mortgagee shall have no power whatever in respect of the said estate..... and after the expiration of the term this mortgage-deed .... shall be returned to the mortgagor without his accounting for (paying) the mortgage money ....... "Their Lordships observed" This instrument, though it is called a mortgage, and though it will be convenient to follow the nomenclature used in the document itself and in the pleadings and judgments in the courts below, is not a mortgage in any proper sense of the word. It is not a security for the payment of any money or for the performance of any engagement. No accounts were to be rendered or required. There was no provision for redemption expressed or implied. It was simply a grant of land for a fixed term free of rent in consideration of a sum made up of past and present advances. "When the term expired the mortgagee refused to give up the possession on the ground that he had not been able to get possession owing to the misrepresentation of the mortgagor and had not received the full benefit purported to be given by the mortgage. In a suit by the mortgagor to recover possession, it was held by the Judicial Committee that the plaintiff was entitled to rely on his proprietary right and, in the absence of any stipulation express or implied in the mortgage-deed depriving him of the right to recover possession, he was entitled to succeed5. On behalf of the respondent reliance has been placed on Ishan Chandra v. Sujan Bibi. In that case, in consideration of a loan received, a party agreed that his property should remain in the hands of the lender for a term of years by which time it was understood the whole amount borrowed would be liquidated, the transaction was held to be Bhogbhundhuk or usufructuary mortgage and not a lease6. In Tukaram Bin Mairal v. Ramchand Malukchand, a Full Bench had to consider a document which was described in the heading as a mortgage deed. There was a provision that the debt was not to bear interest but towards liquidation of it the creditor was to appropriate the income of the land described which was given for enjoyment for a period of 10 years. The deed went on to state that when the creditor had managed the land and appropriated the produce, the debtor would understand that the money due had been paid off and would take a receipt and thereafter the person to whom the document was passed would have no right over the land. No mention had been made of any premium or periodical payment of rent or share of the produce. It was contended that the transaction in that case could not be one of usufructuary mortgage as set forth in section 58(d) of the Act because that provision did not contain mention of any fixed term. The Full Bench observed" That, no doubt, is so, but the law contemplates the property remaining in the possession of the mortgagee, who is authorised to retain it until payment of the mortgage money and to appropriate the rents and profits in lieu of interest or in payment of principal or both, and the nature of the contract is not altered by the fact that the calculation is made beforehand of the period for which the rents and profits will be sufficient to pay off both principal and interest. There is no apparent reason why such a contract as the present should not come within the category of anomalous mortgages as defined in section 98 of the Transfer of Property Act..... "7. The ratio of the Full Bench decision was applied in Mahmad Muse Umarji v. Bagas Amanji Umar, where by a deed it was provided that in consideration of a certain amount advanced to the plaintiff the defendant was to take possession of lands belonging to the plaintiff for 199 years and to apply its profits in liquidation of the debt. The deed was headed " lease in respect of valatdan. " Before the expiration of the period the plaintiff brought a suit for redemption of the mortgage and for possession of the land alleging that the transaction evidenced by the deed was a mortgage. It was held, that reading the deed as a whole and in view of the decision of the Full Bench, the transaction was one of mortgage. The parties clearly intended that the relations between them should be that of mortgagor and mortgagee8. It is unnecessary for us to decide any other point except the narrow question whether the transactions embodied in the deeds referred to were of leases or of mortgages. The Privy Council decision was based on different facts and is clearly distinguishable. There was no question there of the liquidation of debt by the receipt of rents and profits thereof by the mortgagee. The deed was interpreted as containing a simple grant of land for a fixed term free of rent in consideration of a sum made up of past and present advances. The deeds, in the present case, when examined closely, fall more appositely within the type of instruments which came up for consideration in the other three cases on which reliance was placed by counsel for the respondent | 0[ds]8. It is unnecessary for us to decide any other point except the narrow questionthe transactions embodied in the deeds referred to were of leases or of mortgages.The Privy Council decision was based on different facts and is clearly distinguishable. There was no question there of the liquidation of debt by the receipt of rents and profits thereof by the mortgagee. The deed was interpreted as containing a simple grant of land for a fixed term free of rent in consideration of a sum made up of past and present advances. The deeds, in the present case, when examined closely, fall more appositely within the type of instruments which came up for consideration in the other three cases on which reliance was placed by counsel for the respondent | 0 | 2,564 | 139 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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transferee. The transferor is called the lessor, the transferee is called the lessee and the price is called the premium and the money, etc., or other thing to be so rendered is called the rent4. On behalf of the appellant strong reliance has been placed on the observations of the Privy Council in Nidha Sah v. Murlidhar. In that case one Indarjit Lal executed an instrument purporting to be a mortgage with possession in respect of proprietary rights in certain villages for a period of 14 years. It was provided that on the expiration of the term the mortgagor" shall come in possession of the mortgaged villages without settlement of accounts..... that on the expiration of the term..... the mortgagee shall have no power whatever in respect of the said estate..... and after the expiration of the term this mortgage-deed .... shall be returned to the mortgagor without his accounting for (paying) the mortgage money ....... "Their Lordships observed" This instrument, though it is called a mortgage, and though it will be convenient to follow the nomenclature used in the document itself and in the pleadings and judgments in the courts below, is not a mortgage in any proper sense of the word. It is not a security for the payment of any money or for the performance of any engagement. No accounts were to be rendered or required. There was no provision for redemption expressed or implied. It was simply a grant of land for a fixed term free of rent in consideration of a sum made up of past and present advances. "When the term expired the mortgagee refused to give up the possession on the ground that he had not been able to get possession owing to the misrepresentation of the mortgagor and had not received the full benefit purported to be given by the mortgage. In a suit by the mortgagor to recover possession, it was held by the Judicial Committee that the plaintiff was entitled to rely on his proprietary right and, in the absence of any stipulation express or implied in the mortgage-deed depriving him of the right to recover possession, he was entitled to succeed5. On behalf of the respondent reliance has been placed on Ishan Chandra v. Sujan Bibi. In that case, in consideration of a loan received, a party agreed that his property should remain in the hands of the lender for a term of years by which time it was understood the whole amount borrowed would be liquidated, the transaction was held to be Bhogbhundhuk or usufructuary mortgage and not a lease6. In Tukaram Bin Mairal v. Ramchand Malukchand, a Full Bench had to consider a document which was described in the heading as a mortgage deed. There was a provision that the debt was not to bear interest but towards liquidation of it the creditor was to appropriate the income of the land described which was given for enjoyment for a period of 10 years. The deed went on to state that when the creditor had managed the land and appropriated the produce, the debtor would understand that the money due had been paid off and would take a receipt and thereafter the person to whom the document was passed would have no right over the land. No mention had been made of any premium or periodical payment of rent or share of the produce. It was contended that the transaction in that case could not be one of usufructuary mortgage as set forth in section 58(d) of the Act because that provision did not contain mention of any fixed term. The Full Bench observed" That, no doubt, is so, but the law contemplates the property remaining in the possession of the mortgagee, who is authorised to retain it until payment of the mortgage money and to appropriate the rents and profits in lieu of interest or in payment of principal or both, and the nature of the contract is not altered by the fact that the calculation is made beforehand of the period for which the rents and profits will be sufficient to pay off both principal and interest. There is no apparent reason why such a contract as the present should not come within the category of anomalous mortgages as defined in section 98 of the Transfer of Property Act..... "7. The ratio of the Full Bench decision was applied in Mahmad Muse Umarji v. Bagas Amanji Umar, where by a deed it was provided that in consideration of a certain amount advanced to the plaintiff the defendant was to take possession of lands belonging to the plaintiff for 199 years and to apply its profits in liquidation of the debt. The deed was headed " lease in respect of valatdan. " Before the expiration of the period the plaintiff brought a suit for redemption of the mortgage and for possession of the land alleging that the transaction evidenced by the deed was a mortgage. It was held, that reading the deed as a whole and in view of the decision of the Full Bench, the transaction was one of mortgage. The parties clearly intended that the relations between them should be that of mortgagor and mortgagee8. It is unnecessary for us to decide any other point except the narrow question whether the transactions embodied in the deeds referred to were of leases or of mortgages. The Privy Council decision was based on different facts and is clearly distinguishable. There was no question there of the liquidation of debt by the receipt of rents and profits thereof by the mortgagee. The deed was interpreted as containing a simple grant of land for a fixed term free of rent in consideration of a sum made up of past and present advances. The deeds, in the present case, when examined closely, fall more appositely within the type of instruments which came up for consideration in the other three cases on which reliance was placed by counsel for the respondent
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8. It is unnecessary for us to decide any other point except the narrow questionthe transactions embodied in the deeds referred to were of leases or of mortgages.The Privy Council decision was based on different facts and is clearly distinguishable. There was no question there of the liquidation of debt by the receipt of rents and profits thereof by the mortgagee. The deed was interpreted as containing a simple grant of land for a fixed term free of rent in consideration of a sum made up of past and present advances. The deeds, in the present case, when examined closely, fall more appositely within the type of instruments which came up for consideration in the other three cases on which reliance was placed by counsel for the respondent
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Mithilesh Kumar Sinha and Ors Vs. Returning Officer for Presidential Election and Ors | the Act. In Charan Lal Sahu v. Shri Fakruddin Ali Ahmed and Ors. AIR1975SC1288 , the constitutional validity of Sections 5B and 5C of the Act was upheld. In Charan Lal Sahu and Ors. v. Giani Zail Singh and Anr. [1984]2SCR6 , the necessity of precise, specific and unambiguous pleadings in such an election petition was emphasised; the requirements for raising the ground of undue influence under Section 18 of the Act were reiterated; the irrelevance of the plea of suitability of a candidate in the petition was indicated; the absence of any requirement by the candidate of the oath prescribed by Article 84(a) was stated while indicating the requirements in an election petition for raising a triable issue. It was also emphasised that the right arising out of elections including that the right to contest or challenge an election are not common law rights but are creatures of the statutes which create, confer or limit those rights and, therefore, for deciding the question whether an election can be set aside on any alleged ground, the courts have to function within the framework of that law and not travel beyond it. Chandrachud, CJ. speaking for the Constitution Bench in a similar situation also observed as under: It is regrettable that election petitions challenging the election to the high Office of the President of India should be filed in a fashion as cavalier as the one which characterises these two petitions. The petitions have an extempore appearance and not even a second look, leave alone a second thought appears to have been given to the manner of drafting these petitions or to the contentions raised therein. In order to discourage the filing of such petitions, we would have been justified in passing a heavy order of costs against the two petitioners. But that is likely to create a needless misconception that this Court, which has been constituted by the Act as the exclusive forum for deciding election petitions whereby a Presidential or Vice-Presidential election is challenged, is loathe to entertain such petitions. It is of the essence of the functioning of a democracy that election to public offices must be open to the scrutiny of an independent tribunal. A heavy order of costs in these two petitions, howsoever justified on their own facts, should not result in nipping in the bud a well-founded claim on a future occasion. Therefore, we refrain from passing any order of costs and, instead, express our disapproval of the light-hearted and indifferent manner in which these two petitions are drafted and filed. (at p.17) 50. What appears to have dissuaded the Court then in making a heavy order of costs in a similar situation appears to have lost its force since then in view of the even more cavalier fashion in which these petitions continue to be filed a decade later. 51. In Mithilesh Kumar v. Sri R. Venkataraman and Ors. [1988]1SCR525 , it was reiterated that Section 18 of the Act is exhaustive of the grounds on which such an election can be declared void. We have already quoted the observations of Venkataramiah, J. at p. 537 deprecating the cavalier fashion in which the very same petitioner had then also filed the election petition. 52. We have referred to these decisions for the only reason that in both these petitions, a roving challenge to the election has been made by casually mentioning several provisions and even more casually stating that some of them are unconstitutional without indicating any basis for the challenge. It is unnecessary to dilate further. 53. Before parting with the matters we are constrained to observe that it is now time to make suitable provisions to prevent entertaining such frivolous petitions filed in a cavalier fashion requiring the hearing by a Bench of five Judges of this Court. The only purpose served by such frivolous petitions is the giving of some undue publicity to the petitioner which appears to be the sole purpose of filing such a petition. Obviously, use of the Court as a forum for this purpose must not be permitted. The election petitions under the Representation of the People Act challenging elections to the Parliament and State Legislatures are required to be heard by a Single Judge of the High Court. In view of the greater importance of the Presidential and Vice-Presidential elections the forum for trial of such election petitions is the Supreme Court and in accordance with the rules framed by the Court these petitions are heard by a Bench of five Judges. Experience has shown that the solemnity and significance attaching to such petitions has been reduced to a farce by the cavalier fashion in which resort is had to this remedy. The mere fact that the entire gamut of both these petitions is fully covered by several earlier decisions of this Court to some of which these very petitioners were parties shows that the existing provisions are inadequate to prevent such abuse of the process of law. It is now necessary to make suitable amendments in the provisions for screening of such frivolous petitions and provisions is required to be made for trial only of serious petitions raising triable issues by a Bench of five Judges of this Court. We consider it our duty to make these observations to invite attention of all concerned to this felt need requiring suitable action in this direction. 54. On giving our anxious consideration to the reason given by Chandrachud, CJ. in Charan Lal Sahu and Ors., v. Giani Zail Singh and Anr. [1984]2SCR6 for not making an order of costs while dismissing those petitions in a similar situation filed a decade earlier, we think the further decline during the last decade indicates that mere observations of this kind do not have the desired effect. We are constrained to take the view that some stringent measure like mandatory requirement of security deposit of a reasonable amount for costs for entertaining the election petition is needed to provide some check. | 0[ds]21. We may mention that many of the facts stated by us treating them as averments in support of the petition are not contained in the petition. However, for the benefit of the petitioner, we have read even the list of dates filed by him as a part of the petition. We also permitted the petitioner to file certain documents during the course of his arguments on which he relied and have taken them into account. The petitioner finally submitted that Section 17 of the Act requires a full trial of the election petition irrespective of the deficiency in the pleadings and the Court has no power to dismiss the election petition at this stage without going through the entire trial.22. Having given our anxious consideration to the matter, we are left in no doubt that this election petition must be dismissed at the threshold since any further pendency of the same would be a sheer waste of time of this Court, needless public expense and prolongation of abuse of the process of this Court.23. As earlier indicated, the election petition being deficient in material particulars without going into the effect of the deficiency for the purpose of deciding the question of maintainability of the petition, we permitted the petitioner to file several documents at the stage of hearing which include copies of the nomination papers of the candidates and record of the scrutiny proceedings made by the Returning Officer. The nomination paper of petitioner Mithilesh Kumar Sinha bears serial number 60 which was delivered to the Returning Officer at 12.50 p.m. on 24.6.1992 by Mithilesh Kumar himself. The decision of the Returning Officer recorded on petitioners nomination paper on scrutiny made on 25.6.1992 is as under:This nomination paper of Shri Mithilesh Kumar at Sr. No. 60 has ten proposers out of which one proposer at Sr. No. 6 namely, Shri Jawahar Prasad Singh has not appended his signature. It, therefore, falls short of required number of proposers. Besides, Shri Surendra Sharma who is a proposer of Shri Mithilesh Kumar has already subscribed to the nomination paper at Sr. No. 45 of Shri Ram Jethmalani as seconder. His signature is, therefore, inoperative on the present nomination paper. Similarly, Shri Prem Nath Jaiswal, Shri Saryug Mandal, Shri Raj Kumar Mahasetha, Shri Binod Kumar Roy and Shri Madhu Singh who are seconders of Shri Mithilesh Kumar has already subscribed to the nomination paper at Sr. No. 45 of Shri Ram Jethmalani as seconders and as such their signatures also become inoperative on the nomination paper of Shri Mithilesh Kumar. I, therefore, reject the nomination paper Under Section 5E(3)(c) of the said Act.24. The reasons for rejection of petitioners nomination paper given by the Returning Officer show that there was deficiency in the required number of proposers as one of the named proposers Jawahar Prasad Singh had not appended his signature. In addition, Surendra Sharma, a proposer of Mithilesh Kumar had, already subscribed to the nomination paper of Ram Jethmalani as seconder which had been filed earlier and, therefore, his signature was inoperative in accordance with Section 5B(5). Similarly, Prem Nath Jaiswal, Saryug Mandal, Raj Kumar Mahasetha, Binod Kumar Roy and Madhu Singh who were seconders of Mithilesh Kumar Sinha had already subscribed to the nomination paper of Ram Jethmalani as seconders which has been filed earlier and as such their signatures also became inoperative on the nomination paper of Mithilesh Kumar. The reason for rejection of petitioners nomination paper, therefore, was that the same did not comply with the mandatory requirements of Section 5B(1)(a) which made it obligatory for the Returning Officer to reject the nomination paper of Mithilesh Kumar at the time of scrutiny Under Section 5E(3)(c).25. It is to get over this difficulty that the petitioner Mithilesh Kumar Sinha contends that the word delivered in Section 5B(5) should be construed as subscribed.There is no scope for any ambiguity in the meaning of the word deliver in this context in Sub-section (1). Sub-section (2) prescribes the requirement of a certified copy of the entry relating to the candidate in the electoral roll to accompany each nomination paper. Sub-section (3) then says that the Returning Officer shall not accept any nomination paper which is not presented to him within the hours specified in Sub-section (1). Sub-section (4) requires rejection of any nomination paper not received before the specified hour on the last date appointed for the purpose or to which the certified copy referred to in Sub-section (2) is not attached. Then comes Sub-section (5) with which we are concerned in the present case. It is in this context that Sub-section (5) forbids an elector to subscribe, whether as proposer or as seconder, more than one nomination paper at he same election and also prescribes the consequence of its noncompliance by providing that in the case of non-compliance of this mandate in the first part of Sub-section (5), his signature shall be inoperative on any paper other than the one first delivered. It is the meaning of the word deliver in this context in Sub-section (5) which is to be construed.27. As indicated the difference in the meaning of the words deliver and subscribe is clearly brought out in Sub-section (1) and the same words used in Sub-section (5) in the same context must have the same meaning. The plain meaning of Sub-section (5) is that no elector can subscribe, whether as proposer or as seconder, more than one nomination paper at the same election; and if he does so or, in other words, if any elector subscribes more than one nomination paper at the same election, whether as proposer or seconder, then his signature shall be inoperative on any nomination paper other than the one which has been first delivered to the Returning Officer as required by Sub-section (1). This means that an elector can subscribe as proposer or seconder only one nomination paper at the same election and where he subscribes more than one nomination paper at the same election then except for the nomination paper which is first delivered to the Returning Officer, his signature on any nomination paper delivered subsequently to the Returning Officer shall be inoperative or inefffective. It is clear that the elector having the right to sponsor only one candidate and, therefore, to subscribe as proposer or seconder only one nomination paper, that right is exhausted the moment a nomination paper subscribed by him has been delivered to the Returning Officer and the question of his signature on any nomination paper delivered subsequently to the Returning Officer being operative does not arise. No inquiry into that question is contemplated by the Returning Officer where more than one nomination paper subscribed by the same elector is delivered to the Returning Officer, since the statute provides that the right of an elector to propose or second a candidate being exercisable only once, it is exhausted the moment the first nomination paper subscribed by him is delivered to the Returning Officer. There is thus no scope for construing the word deliver as subscribe in Sub-section (5) as suggested by the petitioner since the two words have different connotation and are also used for different purposes not only in Sub-section (5) but also in Sub-section (1) of Section 5B in the same context. The meaning of these words in the two sub-sections of Section 5B must be the same. The construction made by the petitioner of Sub-section (5) of Section 5B must, therefore, be rejected.28. In view of the clear statement made by the petitioner at the hearing, which is also borne out from the documents filed by him, the nomination paper of Shri Ram Jethmalani subscribed by some common electors was first delivered to the Returning Officer as required by Section 5B(1)(a) and, therefore, the signatures of the common electors on the subsequently delivered nomination paper of petitioner were inoperative by virtue of Section 5B(5). The obvious result, therefore, is that the subsequently delivered nomination paper of the petitioner, Mithilesh Kumar Sinha, was not subscribed by at least ten electors as proposers and at least ten electors as seconders as required by Section 5B(1)(a) which made it incumbent on the Returning Officer to reject the petitioners nomination paper on the ground contained in Section 5E(3)(c). This is the reason given by the Returning Officer for rejecting the petitioners nomination paper as required by Section 5E(7). This conclusion is inevitable even assuming, as claimed by the petitioner that his nomination paper was subscribed by ten electors as proposers and ten electors as seconders, including the inoperative common signatures, and ignoring the fact appearing from the nomination paper that there was numerical deficiency of one signature since Jawahar Prasad Singh named as a proposer had not appended his signature on the nomination paper.29. The requirement of Section 14A that an election petition calling in question a Presidential election has to be presented by any candidate at such election or by twenty or more electors joined together as petitioners is for the obvious reason that the requirement for a valid nomination at a Presidential election according to Section 5B(1)(a) is the nomination of a candidate by at least ten electors as proposers and an equal number as seconders i.e. in all by at least twenty electors. A person entitled to claim himself as a duly nominated candidate at the election must have at least twenty electors subscribing his valid nomination paper as proposers and seconders. The law could never have intended that a person without satisfying the requirement of Section 5B(1)(a) can claim to have been duly nominated as a candidate at an election even if he did not have twenty electors behind him as proposers and seconders to validly sponsor him as a candidate. If an election petition according to Section 14A cannot be presented by less than twenty electors joined together as petitioners, it cannot obviously be presented by the alternative mode of a candidate as the petitioner who was not validly nominated by at least twenty electors. This requirement of Section 14A(1) is a clear indication that a person cannot claim to have been duly nominated as a candidate at the Presidential election unless he had satisfied the mandatory requirements of Section 5B(1)(a) and Section 5C.31. It is also settled by the decisions of this Court that in order to have the requisite locus standi as a candidate within the meaning of Section 13(a) for being entitled to present such an election petition in accordance with Section 14A of the Act the petitioner must be duly nominated as a candidate in accordance with Section 5B(1)(a) and Section 5C. Unless it is so the petitioner cannot even claim to have been duly nominated as a candidate at the election as required by Section 13(a). The above conclusion in respect to the nomination paper of the petitioner, Mithilesh Kumar Sinha, from the facts set out by him in the petition, stated by him at the hearing and evident from the documents filed by him makes it clear that the petitioner, Mithilesh Kumar Sinha, has no locus standi to challenge the election of the returned candidate, Dr. Shanker Dayal Sharma as he is not competent to present the election petition in accordance with Section 14A of the Act read with Order XXXIX Rule 7 of Supreme Court Rules. Even otherwise the ground under Section 18(1)(c) of the Act of wrongful rejection of his nomination paper urged in the election petition does not give rise to a triable issue on the above facts and the irresistible conclusion therefrom. The material facts to make out a prima facie case of existence of that ground are lacking in the pleadings and squarely negatived by petitioners own statement.36. The earlier decisions of this Court have clearly negatived the petitioners further contention that the Court is bound to continue this trial even though no triable issue arises and he does not have the requisite locus standi merely because of Section 17 of the Act. The cited cases including one filed by the very same petitioner show rejection of similarly defective petitions at the threshold. The trial commences with the presentation of the election petition and an order of dismissal of the petition made at this stage on the ground that it is not maintainable being barred by any law or not disclosing any cause of action is a dismissal at the conclusion of the trial since no further step in the trial of such a petition is contemplated. This is how the word trial in Section 17 of the Act must be understood, if Section 17 is to govern the dismissal of all petitions including dismissal at the threshold. This view also harmonises Order XXIII Rule 6 of the Supreme Court Rules which applies by virtue of Order XXXIX Rule 34 as repeatedly held by this Court.37. The Election Petition No. 1 of 1992is, therefore, liable to be dismissed as not maintainable, for the reasons given. The other vague and general grounds urged by this petitioner are considered later along with similar points taken by the petitioner inElection Petition No. 2 of 1992Election Petition No. 2 of 1992There is no such averment made in the election petition nor was any such assertion made even at the hearing by the petitioner. There is thus no foundation for this further declaration sought by the petitioner in the relief claimed by him at serial number 9 in the prayer clause. The election petition is, therefore, to be confined essentially to the ground contained in Section 18(1)(c) of wrongful acceptance of the nomination papers of the other three candidates.39. No doubt in the election petition several other things have been said but they do not amount to averment of material facts to constitute or raise any other ground contained in Section 18 of the Act. A passing reference to what may be termed as undue influence does appear in the petition but the averments do not satisfy the requirement of pleadings even according to the ordinary standard much less the more stringent requirements of Sub-section (2) of Section 18 of the Act. At the hearing also the petitioner addressed us mainly on the ground of wrongful acceptance of nomination papers of the other three candidates relying particularly on the objections raised by him before the Returning Officer as mentioned earlier. We would, therefore, now consider maintainability of the petition on the ground contained in Section 18(1)(c) of the Act. A reference to some other grounds mentioned vaguely and generally is made later.40. The petitioners case appearing from his pleadings as well as arguments is that the nomination papers of the other three candidates were wrongly accepted even though they contained incomplete description of the candidates, their proposers and seconders. This contention is based on the contents of the nomination papers. A perusal of the nomination papers of all the candidates with reference to Form 2 read with Rule 4 of the Presidential and Vice-Presidential Elections Rules, 1974 shows that there is no defect, deficiency or ambiguity in the nomination papers of any of the four candidates including this petitioner whose nomination papers were accepted by the Returning Officer. This petitioners nomination paper is similar in contents. The petitioners grievance was confined mainly to columns 2 and 4 of Form 2. Column 2 requires the full name of the proposers/seconders and column 4 requires mention of the State/Union Territory in/from which they were elected. A bare perusal of the nomination papers of the four candidates which had been accepted by the Returning Officer shows that these requirements were duly complied with and there was no ambiguity in respect of the name or any other prescribed particular of the prospers and seconders in these nomination papers. The petitioner contended that the description of the candidates, the proposers and seconders requires some more particulars to be given. However, no further particular mentioned by the petitioner is the requirement of the rules or the prescribed form of the nomination paper. Thus no defect in any of these nomination papers to make out even a prima facie ground under Section 18(1)(c) of wrongful acceptance of any of these nomination papers is either pleaded or shown to raise a triable issue on this point. We may here also refer to Sub-section (5) of Section 5E which provides that the Returning Officer shall not reject any nomination paper on the ground of any defect which is not of a substantial character. No defect of any kind much less a defect of substantial character in any nomination paper which was accepted has been pleaded or shown by the petitioner to require any further examination of this question or framing an issue for the purpose. The election petition does not, therefore, disclose any cause of action for trial of the ground contained in Section 18(1)(c) of the Act.41. The only other ground to which a casual reference appears to have been made in the petition and was referred in passing at the hearing is that contained in Section 18(1)(a) which has to be read along with Section 18(2). The casual reference is to the ground of undue influence. It would be appropriate at this stage to refer to the contents of paras 2, 5 and 6 of the petition on which reliance was placed by the petitioner and which are treated by him as material averments for raising the grounds under Section 18 of the Act. We have already considered the ground relating to Section 18(1)(e) to which para 2 of the petition relates. Para 6(a) contains several sub-paras. Sub-para (1) says that the nomination papers were presented by one single proposer and not by ten proposers and further that the proposers and seconders included the Prime Minister, Central Ministers, Chief Ministers and Members of Parliament. No attempt was made by the petitioner to show that this constitutes a ground under Section 18(1) of the Act or that it amounts to the violation or non-compliance of any law. Moreover, Section 5B providing for presentation of nomination paper and requirements of a valid nomination does not prescribe any such requirement. Sub-para (2) says that the other three candidates are above 65 years of age. This too is irrelevant and no attempt was made to rely on it. Sub-paras (3) and (4) are similarly irrelevant and the petitioner made no attempt at the hearing to rely on them as a ground under Section 18 of the Act. There is no requirement of law to file the complete electoral roll except a certified copy of the entry relating to the candidate in the electoral roll according to Section 5B(2) of the Act. Sub-para (5) is misconceived in view of the Explanation to Article 58 of the Constitution. Sub-para (6) is the only remaining sub-para wherein an attempt to plead the ground contained in Section 18(1)(a) is made. There is no additional requirement of oath by the candidates as settled by the earlier decisions of this Court and, therefore, this part of sub-para (6) needs no further consideration. The remaining para contains the averment that the Returning Officer, Shri Sudershan Agrawal was given an extension of one year by the returned candidate Dr. Shanker Dayal Sharma as Vice-President of India which is illegal and amounts to undue influence. The averment in sub-para (6) relating to the constituently validity of some provisions is concluded by earlier decisions of this Court apart from being beyond the scope of the election petition. There is no averment as to how the extension of one year given to Shri Sudershan Agrawal is illegal and no particulars of the bald assertion of undue influence have even been mentioned.42. A bare perusal of Section 171-C I.P.C. shows that the ingredients of undue influence at elections are many and they have to be read into the meaning of the offence of undue influence in Section 18(1)(a) of the Act. Before a ground under Section 18(1)(a) of the Act can be said to be pleaded raising a triable issue in the election petition it must be shown that material facts to constitute the ingredients of the offence of undue influence have at least been pleaded in the election petition. The petitioner has not made any attempt to pay even lip-service to these requirements and has chosen to merely repeat the words undue influence in the election in the petition without any attempt to plead material facts raising that ground. Obviously for this reason the petitioner did not even attempt, at the hearing, to advert to this ground with any degree of seriousness.43. It is, therefore, obvious that even though the petitioner, Kaka Joginder Singh inElection Petition No. 2 of 1992has the locus standi to present the petition as required by Section 14A of the Act read with Order XXXIX Rule 7 of Supreme Court Rules, yet material facts and the grounds on which the relief of declaration of the election of the returned candidate void is sought have not been pleaded to disclose any cause of action or raise any triable issue. The net result, therefore, is the same as inElection Petition No. 1 of 1992and this petition also is liable to be dismissed sustaining the preliminary objection. It must be held that the election petition does not disclose any cause of action and is, therefore, liable to be dismissed by virtue of the Rules 2 and 5 of Order XXXIX and Rule 6 of Order XXIII read with Rule 34 of Order XXXIX of the Supreme Court Rules and the mandatory provisions of the Presidential and Vice-Presidential Elections Act, 1952.44. What we have already said is sufficient to dispose of both the election petitions taking into consideration all that can qualify in the two petitions as relevant or requiring consideration. The exercise of filtering out the relevant from the irrelevant in the both these petitions has been tedious. InElection Petition No. 1 of 1992this task has been more difficult on account of the recalcitrance and ambience of petitioner Mithilesh Kumar Sinha who persisted in continuing his arguments by submitting some more written submissions even after the case was closed for judgment on conclusion of the hearing. There was nothing of substance or use therein, in addition to what he had said earlier. The language used by Mithilesh Kumar Sinha at some places in his written submissions is also intemperate. It is doubtful that he did so unwittingly and the impression we get is that all his actions have been deliberate. We strongly deprecate this attitude and conduct of petitioner Mithilesh Kumar Sinha who has clearly misused the indulgence granted by the Court to him as a petitioner-in-person. Ordinarily we would have rephrased from saying so in the judgment, but we do so since we find that such an indication by us to him during the hearing has not had the desired effect.46. It is obvious that the above observations of Venkataramiah, J. have not had the desired effect on petitioner Mithilesh Kumar Sinha. One of the tenuous submissions of Mithilesh Kumar Sinha before us was that no sitting Judge of the Supreme Court is competent to hear his petition since they are all likely to be influenced by the President of India and, therefore, his petition should be heard by a Bench comprising of all the sitting Judges as well as all the retired Judges of the Supreme Court. This would indicate the extent to which this Courts time has been wasted by such frivolous pleas. Suitable steps to prevent such attempts in future must be taken in larger public interest.47. We may make a passing reference to some of the earlier decisions of this Court in which some similar points mentioned casually and vaguely by these petitioners without laying any foundation have been rejected. Both these petitioners are far too deficient by even the most liberal standard of pleadings when the standard in election petitions is more strict.48. A Bench of seven Judges in Charan Lal Sahu v. Neelam Sanjeeva Reddy [1978]3SCR1 , apart from dealing with the locus standi to file election petition under the Presidential and Vice-Presidential Elections Act, 1952, also considered and negatived the challenge to constitutional validity of certain provisions while stating the scope of Articles 58 and 71 of the Constitution of India.49. In Shri Baburao Patel and Ors. v. Dr. Zakir Husain and Ors. [1968]2SCR133 , it was held that a candidate standing for election to the office of the President was not required to take any oath for becoming eligible for election as President; and the nature of pleadings required for constituting the ground of undue influence under Section 18 of the Act based on canvassing by the Prime Minister and Ministers was also indicated. In Shiv Kirpal Singh v. Shri V.V. Giri [1971]2SCR197 , apart from indicating once again the requirements for constituting the ground of undue influence under Section 18 of the Act, it was also held that so challenge to the election can be made on grounds other than those mentioned in Section 18 of the Act. In Charan Lal Sahu v. Shri Fakruddin Ali Ahmed and Ors. AIR1975SC1288 , the constitutional validity of Sections 5B and 5C of the Act was upheld. In Charan Lal Sahu and Ors. v. Giani Zail Singh and Anr. [1984]2SCR6 , the necessity of precise, specific and unambiguous pleadings in such an election petition was emphasised; the requirements for raising the ground of undue influence under Section 18 of the Act were reiterated; the irrelevance of the plea of suitability of a candidate in the petition was indicated; the absence of any requirement by the candidate of the oath prescribed by Article 84(a) was stated while indicating the requirements in an election petition for raising a triable issue. It was also emphasised that the right arising out of elections including that the right to contest or challenge an election are not common law rights but are creatures of the statutes which create, confer or limit those rights and, therefore, for deciding the question whether an election can be set aside on any alleged ground, the courts have to function within the framework of that law and not travel beyond it. Chandrachud, CJ. speaking for the Constitution Bench in a similar situation also observed as under:It is regrettable that election petitions challenging the election to the high Office of the President of India should be filed in a fashion as cavalier as the one which characterises these two petitions. The petitions have an extempore appearance and not even a second look, leave alone a second thought appears to have been given to the manner of drafting these petitions or to the contentions raised therein. In order to discourage the filing of such petitions, we would have been justified in passing a heavy order of costs against the two petitioners. But that is likely to create a needless misconception that this Court, which has been constituted by the Act as the exclusive forum for deciding election petitions whereby a Presidential or Vice-Presidential election is challenged, is loathe to entertain such petitions. It is of the essence of the functioning of a democracy that election to public offices must be open to the scrutiny of an independent tribunal. A heavy order of costs in these two petitions, howsoever justified on their own facts, should not result in nipping in the bud a well-founded claim on a future occasion. Therefore, we refrain from passing any order of costs and, instead, express our disapproval of the light-hearted and indifferent manner in which these two petitions are drafted and filed.50. What appears to have dissuaded the Court then in making a heavy order of costs in a similar situation appears to have lost its force since then in view of the even more cavalier fashion in which these petitions continue to be filed a decade later.52. We have referred to these decisions for the only reason that in both these petitions, a roving challenge to the election has been made by casually mentioning several provisions and even more casually stating that some of them are unconstitutional without indicating any basis for the challenge. It is unnecessary to dilate further.53. Before parting with the matters we are constrained to observe that it is now time to make suitable provisions to prevent entertaining such frivolous petitions filed in a cavalier fashion requiring the hearing by a Bench of five Judges of this Court. The only purpose served by such frivolous petitions is the giving of some undue publicity to the petitioner which appears to be the sole purpose of filing such a petition. Obviously, use of the Court as a forum for this purpose must not be permitted. The election petitions under the Representation of the People Act challenging elections to the Parliament and State Legislatures are required to be heard by a Single Judge of the High Court. In view of the greater importance of the Presidential and Vice-Presidential elections the forum for trial of such election petitions is the Supreme Court and in accordance with the rules framed by the Court these petitions are heard by a Bench of five Judges. Experience has shown that the solemnity and significance attaching to such petitions has been reduced to a farce by the cavalier fashion in which resort is had to this remedy. The mere fact that the entire gamut of both these petitions is fully covered by several earlier decisions of this Court to some of which these very petitioners were parties shows that the existing provisions are inadequate to prevent such abuse of the process of law. It is now necessary to make suitable amendments in the provisions for screening of such frivolous petitions and provisions is required to be made for trial only of serious petitions raising triable issues by a Bench of five Judges of this Court. We consider it our duty to make these observations to invite attention of all concerned to this felt need requiring suitable action in this direction.54. On giving our anxious consideration to the reason given by Chandrachud, CJ. in Charan Lal Sahu and Ors., v. Giani Zail Singh and Anr. [1984]2SCR6 for not making an order of costs while dismissing those petitions in a similar situation filed a decade earlier, we think the further decline during the last decade indicates that mere observations of this kind do not have the desired effect. We are constrained to take the view that some stringent measure like mandatory requirement of security deposit of a reasonable amount for costs for entertaining the election petition is needed to provide some check. | 0 | 15,624 | 5,635 | ### Instruction:
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the Act. In Charan Lal Sahu v. Shri Fakruddin Ali Ahmed and Ors. AIR1975SC1288 , the constitutional validity of Sections 5B and 5C of the Act was upheld. In Charan Lal Sahu and Ors. v. Giani Zail Singh and Anr. [1984]2SCR6 , the necessity of precise, specific and unambiguous pleadings in such an election petition was emphasised; the requirements for raising the ground of undue influence under Section 18 of the Act were reiterated; the irrelevance of the plea of suitability of a candidate in the petition was indicated; the absence of any requirement by the candidate of the oath prescribed by Article 84(a) was stated while indicating the requirements in an election petition for raising a triable issue. It was also emphasised that the right arising out of elections including that the right to contest or challenge an election are not common law rights but are creatures of the statutes which create, confer or limit those rights and, therefore, for deciding the question whether an election can be set aside on any alleged ground, the courts have to function within the framework of that law and not travel beyond it. Chandrachud, CJ. speaking for the Constitution Bench in a similar situation also observed as under: It is regrettable that election petitions challenging the election to the high Office of the President of India should be filed in a fashion as cavalier as the one which characterises these two petitions. The petitions have an extempore appearance and not even a second look, leave alone a second thought appears to have been given to the manner of drafting these petitions or to the contentions raised therein. In order to discourage the filing of such petitions, we would have been justified in passing a heavy order of costs against the two petitioners. But that is likely to create a needless misconception that this Court, which has been constituted by the Act as the exclusive forum for deciding election petitions whereby a Presidential or Vice-Presidential election is challenged, is loathe to entertain such petitions. It is of the essence of the functioning of a democracy that election to public offices must be open to the scrutiny of an independent tribunal. A heavy order of costs in these two petitions, howsoever justified on their own facts, should not result in nipping in the bud a well-founded claim on a future occasion. Therefore, we refrain from passing any order of costs and, instead, express our disapproval of the light-hearted and indifferent manner in which these two petitions are drafted and filed. (at p.17) 50. What appears to have dissuaded the Court then in making a heavy order of costs in a similar situation appears to have lost its force since then in view of the even more cavalier fashion in which these petitions continue to be filed a decade later. 51. In Mithilesh Kumar v. Sri R. Venkataraman and Ors. [1988]1SCR525 , it was reiterated that Section 18 of the Act is exhaustive of the grounds on which such an election can be declared void. We have already quoted the observations of Venkataramiah, J. at p. 537 deprecating the cavalier fashion in which the very same petitioner had then also filed the election petition. 52. We have referred to these decisions for the only reason that in both these petitions, a roving challenge to the election has been made by casually mentioning several provisions and even more casually stating that some of them are unconstitutional without indicating any basis for the challenge. It is unnecessary to dilate further. 53. Before parting with the matters we are constrained to observe that it is now time to make suitable provisions to prevent entertaining such frivolous petitions filed in a cavalier fashion requiring the hearing by a Bench of five Judges of this Court. The only purpose served by such frivolous petitions is the giving of some undue publicity to the petitioner which appears to be the sole purpose of filing such a petition. Obviously, use of the Court as a forum for this purpose must not be permitted. The election petitions under the Representation of the People Act challenging elections to the Parliament and State Legislatures are required to be heard by a Single Judge of the High Court. In view of the greater importance of the Presidential and Vice-Presidential elections the forum for trial of such election petitions is the Supreme Court and in accordance with the rules framed by the Court these petitions are heard by a Bench of five Judges. Experience has shown that the solemnity and significance attaching to such petitions has been reduced to a farce by the cavalier fashion in which resort is had to this remedy. The mere fact that the entire gamut of both these petitions is fully covered by several earlier decisions of this Court to some of which these very petitioners were parties shows that the existing provisions are inadequate to prevent such abuse of the process of law. It is now necessary to make suitable amendments in the provisions for screening of such frivolous petitions and provisions is required to be made for trial only of serious petitions raising triable issues by a Bench of five Judges of this Court. We consider it our duty to make these observations to invite attention of all concerned to this felt need requiring suitable action in this direction. 54. On giving our anxious consideration to the reason given by Chandrachud, CJ. in Charan Lal Sahu and Ors., v. Giani Zail Singh and Anr. [1984]2SCR6 for not making an order of costs while dismissing those petitions in a similar situation filed a decade earlier, we think the further decline during the last decade indicates that mere observations of this kind do not have the desired effect. We are constrained to take the view that some stringent measure like mandatory requirement of security deposit of a reasonable amount for costs for entertaining the election petition is needed to provide some check.
### Response:
0
### Explanation:
under Section 18 of the Act based on canvassing by the Prime Minister and Ministers was also indicated. In Shiv Kirpal Singh v. Shri V.V. Giri [1971]2SCR197 , apart from indicating once again the requirements for constituting the ground of undue influence under Section 18 of the Act, it was also held that so challenge to the election can be made on grounds other than those mentioned in Section 18 of the Act. In Charan Lal Sahu v. Shri Fakruddin Ali Ahmed and Ors. AIR1975SC1288 , the constitutional validity of Sections 5B and 5C of the Act was upheld. In Charan Lal Sahu and Ors. v. Giani Zail Singh and Anr. [1984]2SCR6 , the necessity of precise, specific and unambiguous pleadings in such an election petition was emphasised; the requirements for raising the ground of undue influence under Section 18 of the Act were reiterated; the irrelevance of the plea of suitability of a candidate in the petition was indicated; the absence of any requirement by the candidate of the oath prescribed by Article 84(a) was stated while indicating the requirements in an election petition for raising a triable issue. It was also emphasised that the right arising out of elections including that the right to contest or challenge an election are not common law rights but are creatures of the statutes which create, confer or limit those rights and, therefore, for deciding the question whether an election can be set aside on any alleged ground, the courts have to function within the framework of that law and not travel beyond it. Chandrachud, CJ. speaking for the Constitution Bench in a similar situation also observed as under:It is regrettable that election petitions challenging the election to the high Office of the President of India should be filed in a fashion as cavalier as the one which characterises these two petitions. The petitions have an extempore appearance and not even a second look, leave alone a second thought appears to have been given to the manner of drafting these petitions or to the contentions raised therein. In order to discourage the filing of such petitions, we would have been justified in passing a heavy order of costs against the two petitioners. But that is likely to create a needless misconception that this Court, which has been constituted by the Act as the exclusive forum for deciding election petitions whereby a Presidential or Vice-Presidential election is challenged, is loathe to entertain such petitions. It is of the essence of the functioning of a democracy that election to public offices must be open to the scrutiny of an independent tribunal. A heavy order of costs in these two petitions, howsoever justified on their own facts, should not result in nipping in the bud a well-founded claim on a future occasion. Therefore, we refrain from passing any order of costs and, instead, express our disapproval of the light-hearted and indifferent manner in which these two petitions are drafted and filed.50. What appears to have dissuaded the Court then in making a heavy order of costs in a similar situation appears to have lost its force since then in view of the even more cavalier fashion in which these petitions continue to be filed a decade later.52. We have referred to these decisions for the only reason that in both these petitions, a roving challenge to the election has been made by casually mentioning several provisions and even more casually stating that some of them are unconstitutional without indicating any basis for the challenge. It is unnecessary to dilate further.53. Before parting with the matters we are constrained to observe that it is now time to make suitable provisions to prevent entertaining such frivolous petitions filed in a cavalier fashion requiring the hearing by a Bench of five Judges of this Court. The only purpose served by such frivolous petitions is the giving of some undue publicity to the petitioner which appears to be the sole purpose of filing such a petition. Obviously, use of the Court as a forum for this purpose must not be permitted. The election petitions under the Representation of the People Act challenging elections to the Parliament and State Legislatures are required to be heard by a Single Judge of the High Court. In view of the greater importance of the Presidential and Vice-Presidential elections the forum for trial of such election petitions is the Supreme Court and in accordance with the rules framed by the Court these petitions are heard by a Bench of five Judges. Experience has shown that the solemnity and significance attaching to such petitions has been reduced to a farce by the cavalier fashion in which resort is had to this remedy. The mere fact that the entire gamut of both these petitions is fully covered by several earlier decisions of this Court to some of which these very petitioners were parties shows that the existing provisions are inadequate to prevent such abuse of the process of law. It is now necessary to make suitable amendments in the provisions for screening of such frivolous petitions and provisions is required to be made for trial only of serious petitions raising triable issues by a Bench of five Judges of this Court. We consider it our duty to make these observations to invite attention of all concerned to this felt need requiring suitable action in this direction.54. On giving our anxious consideration to the reason given by Chandrachud, CJ. in Charan Lal Sahu and Ors., v. Giani Zail Singh and Anr. [1984]2SCR6 for not making an order of costs while dismissing those petitions in a similar situation filed a decade earlier, we think the further decline during the last decade indicates that mere observations of this kind do not have the desired effect. We are constrained to take the view that some stringent measure like mandatory requirement of security deposit of a reasonable amount for costs for entertaining the election petition is needed to provide some check.
|
Hanuman Mining Corporation Limited Vs. Commissioner of Sales Tax, Madhya Pradesh, Indore | is effected by a transfer of documents of title to the goods during their movement from one State to another."The interpretation of section 3(a) of the Central Sales Tax Act was the subject-matter of consideration by this court in Tata Iron & Steel Co. Ltd. v. S. R. Sarkar ([1960] 11 S.T.C. 655), and Shah, J., speaking for the majority of the Bench, observed as follows :"In our view, therefore, within clause (b) of section 3 are included sales in which property in the goods passes during the movement of the goods from one State to another by transfer of documents of title thereto; clause (a) of section 3 covers sales, other than those included in clause (b), in which the movement of goods from one State to another is the result of a covenant or incident of the contract of sale, and property in the goods passes in either State."This observation of Shah, J., was cited with approval by this court in Cement Marketing Co. v. State of Mysore ([1963] 14 S.T.C. 175) and again in State Trading Corporation v. State of Mysore ([1963] 14 S.T.C. 188). In the latter case Sarkar, J., observed thus :"The question then is, did the sales occasion the movement of cement from another State into Mysore within the meaning of the definition ? In Tata Iron & Steel Co. Ltd. v. S. R. Sarkar ([1960] 11 S.T.C. 655), it was held that a sale occasions the movement of goods from one State to another within section 3(a) of the Central Sales Tax Act, when the movement is the result of a covenant or incident of the contract of sale. That the cement concerned in the disputed sales was actually moved from another State into Mysore is not denied. The respondents only contend that the movement was not the result of a covenant in or an incident of the contract of sale."In that case the court held that the movement of goods was a result of the covenant of the contract of sale or an incident of such contract and so the sale must be treated as inter-State sale as defined in section 3(a) of the Central Sales Tax Act, 1956. The court did not go into the question as to whether the property had passed before the movement of the goods or not and this was because according to the decision in Tata Iron & Steel Co. Ltd. v. S. R. Sarkar ([1960] 11 S.T.C. 655), it did not matter whether the property passed in one State or another. The same principle was reiterated by this court in K. G. Khosla & Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes, Madras Division ([1966] 17 S.T.C. 473).5. In the present case the entire turnover of the appellant consisted of sale of manganese ore to eight firms outside the State, some of Bombay and some of Nagpur. There was a written contract of sale between the appellant and each of these firms, on more or less identical terms, the only material difference being that under two of the contracts the rate was fixed f.o.r. Bombay and under the rest f.o.r. Katanjhari, which is in the State of Madhya Pradesh. There is no disputed that the ore was loaded by the appellant into wagons at Katanjhari indented by the buying firm. There is also no dispute that the wagons went out of the State of Nagpur and Bombay respectively, the buyer acting as consignor and consignee. The only question to be examined is whether the movement of goods from the State of Madhya Pradesh into the State of Maharashtra was occasioned by the terms of the respective contracts. There was an important stipulation in each of the contracts that the first weight at Gondia weigh-bridge shall be the weight for the purpose of the contract. This stipulation in the contract necessitated the movement of the wagons from the State of Madhya Pradesh to the Gondia weigh-bridge for the fulfilment of the terms of the contract as to the payment of the price. Gondia weigh-bridge is outside the State of Madhya Pradesh. On a scrutiny of the terms of the contract, it is clear that the first weighment at the Gondia weigh-bridge was the basis of the fixation of price of the manganese ore and therefore the parties necessarily contemplated the movement of the goods to the Gondia weigh-bridge and the weighment of the goods at Gondia in performance of the terms of the contract. In our opinion, the movement of goods across the frontier was a direct and necessary consequence of the important covenant with regard to the fixation of price. It follows that the sales under the eight contracts were inter-State sales within the language of section 3(a) of the Central Sales Tax Act and were not liable to be taxed under the Madhya Pradesh General Sales Tax Act. In our opinion, the present case falls within the ratio of the decision of this court in Commissioner of Sales Tax, M.P. v. Allwyn Cooper (Civil Appeal No. 1208 of 1966 decided on 21-8-1968, since reported at [1970] 25 S.T.C. 26), in which the relevant clauses of the contract of sale were almost identical with the terms of the contract of sale in the present case. The High Court has followed its previous decision in Commissioner of Sales Tax, Madhya Pradesh v. Nathani Brothers ([1968] 21 S.T.C. 465). But for the reasons already given we consider that the decision in Commissioner of Sales Tax, Madhya Pradesh v. Nathani Brothers ([1968] 21 S.T.C. 465) was not correct.For these reasons we hold that in the facts and circumstances of this case the sales of manganese ore by the appellant were in the course of inter-State trade and therefore exempted from tax under the C.P. and Berar Sales Tax Act, 1947, and the question of law referred to the High Court must be answered in favour of the appellant and against the Commissioner of Sales Tax, Madhya Pradesh. | 1[ds]In the present case the entire turnover of the appellant consisted of sale of manganese ore to eight firms outside the State, some of Bombay and some of Nagpur. There was a written contract of sale between the appellant and each of these firms, on more or less identical terms, the only material difference being that under two of the contracts the rate was fixed f.o.r. Bombay and under the rest f.o.r. Katanjhari, which is in the State of Madhya Pradesh. There is no disputed that the ore was loaded by the appellant into wagons at Katanjhari indented by the buying firm. There is also no dispute that the wagons went out of the State of Nagpur and Bombay respectively, the buyer acting as consignor andwas an important stipulation in each of the contracts that the first weight at Gondia weigh-bridge shall be the weight for the purpose of the contract. This stipulation in the contract necessitated the movement of the wagons from the State of Madhya Pradesh to the Gondia weigh-bridge for the fulfilment of the terms of the contract as to the payment of the price. Gondia weigh-bridge is outside the State of Madhya Pradesh. On a scrutiny of the terms of the contract, it is clear that the first weighment at the Gondia weigh-bridge was the basis of the fixation of price of the manganese ore and therefore the parties necessarily contemplated the movement of the goods to the Gondia weigh-bridge and the weighment of the goods at Gondia in performance of the terms of the contract. In our opinion, the movement of goods across the frontier was a direct and necessary consequence of the important covenant with regard to the fixation of price. It follows that the sales under the eight contracts were inter-State sales within the language of section 3(a) of the Central Sales Tax Act and were not liable to be taxed under the Madhya Pradesh General Sales Tax Act. In our opinion, the present case falls within the ratio of the decision of this court in Commissioner of Sales Tax, M.P. v. Allwyn Cooper (Civil Appeal No. 1208 of 1966 decided on 21-8-1968, since reported at [1970] 25 S.T.C. 26), in which the relevant clauses of the contract of sale were almost identical with the terms of the contract of sale in the present case. The High Court has followed its previous decision in Commissioner of Sales Tax, Madhya Pradesh v. Nathani Brothers ([1968] 21 S.T.C. 465). But for the reasons already given we consider that the decision in Commissioner of Sales Tax, Madhya Pradesh v. Nathani Brothers ([1968] 21 S.T.C. 465) was not correct.For these reasons we hold that in the facts and circumstances of this case the sales of manganese ore by the appellant were in the course of inter-State trade and therefore exempted from tax under the C.P. and Berar Sales Tax Act, 1947, and the question of law referred to the High Court must be answered in favour of the appellant and against the Commissioner of Sales Tax, Madhya Pradesh. | 1 | 1,956 | 566 | ### Instruction:
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is effected by a transfer of documents of title to the goods during their movement from one State to another."The interpretation of section 3(a) of the Central Sales Tax Act was the subject-matter of consideration by this court in Tata Iron & Steel Co. Ltd. v. S. R. Sarkar ([1960] 11 S.T.C. 655), and Shah, J., speaking for the majority of the Bench, observed as follows :"In our view, therefore, within clause (b) of section 3 are included sales in which property in the goods passes during the movement of the goods from one State to another by transfer of documents of title thereto; clause (a) of section 3 covers sales, other than those included in clause (b), in which the movement of goods from one State to another is the result of a covenant or incident of the contract of sale, and property in the goods passes in either State."This observation of Shah, J., was cited with approval by this court in Cement Marketing Co. v. State of Mysore ([1963] 14 S.T.C. 175) and again in State Trading Corporation v. State of Mysore ([1963] 14 S.T.C. 188). In the latter case Sarkar, J., observed thus :"The question then is, did the sales occasion the movement of cement from another State into Mysore within the meaning of the definition ? In Tata Iron & Steel Co. Ltd. v. S. R. Sarkar ([1960] 11 S.T.C. 655), it was held that a sale occasions the movement of goods from one State to another within section 3(a) of the Central Sales Tax Act, when the movement is the result of a covenant or incident of the contract of sale. That the cement concerned in the disputed sales was actually moved from another State into Mysore is not denied. The respondents only contend that the movement was not the result of a covenant in or an incident of the contract of sale."In that case the court held that the movement of goods was a result of the covenant of the contract of sale or an incident of such contract and so the sale must be treated as inter-State sale as defined in section 3(a) of the Central Sales Tax Act, 1956. The court did not go into the question as to whether the property had passed before the movement of the goods or not and this was because according to the decision in Tata Iron & Steel Co. Ltd. v. S. R. Sarkar ([1960] 11 S.T.C. 655), it did not matter whether the property passed in one State or another. The same principle was reiterated by this court in K. G. Khosla & Co. (P.) Ltd. v. Deputy Commissioner of Commercial Taxes, Madras Division ([1966] 17 S.T.C. 473).5. In the present case the entire turnover of the appellant consisted of sale of manganese ore to eight firms outside the State, some of Bombay and some of Nagpur. There was a written contract of sale between the appellant and each of these firms, on more or less identical terms, the only material difference being that under two of the contracts the rate was fixed f.o.r. Bombay and under the rest f.o.r. Katanjhari, which is in the State of Madhya Pradesh. There is no disputed that the ore was loaded by the appellant into wagons at Katanjhari indented by the buying firm. There is also no dispute that the wagons went out of the State of Nagpur and Bombay respectively, the buyer acting as consignor and consignee. The only question to be examined is whether the movement of goods from the State of Madhya Pradesh into the State of Maharashtra was occasioned by the terms of the respective contracts. There was an important stipulation in each of the contracts that the first weight at Gondia weigh-bridge shall be the weight for the purpose of the contract. This stipulation in the contract necessitated the movement of the wagons from the State of Madhya Pradesh to the Gondia weigh-bridge for the fulfilment of the terms of the contract as to the payment of the price. Gondia weigh-bridge is outside the State of Madhya Pradesh. On a scrutiny of the terms of the contract, it is clear that the first weighment at the Gondia weigh-bridge was the basis of the fixation of price of the manganese ore and therefore the parties necessarily contemplated the movement of the goods to the Gondia weigh-bridge and the weighment of the goods at Gondia in performance of the terms of the contract. In our opinion, the movement of goods across the frontier was a direct and necessary consequence of the important covenant with regard to the fixation of price. It follows that the sales under the eight contracts were inter-State sales within the language of section 3(a) of the Central Sales Tax Act and were not liable to be taxed under the Madhya Pradesh General Sales Tax Act. In our opinion, the present case falls within the ratio of the decision of this court in Commissioner of Sales Tax, M.P. v. Allwyn Cooper (Civil Appeal No. 1208 of 1966 decided on 21-8-1968, since reported at [1970] 25 S.T.C. 26), in which the relevant clauses of the contract of sale were almost identical with the terms of the contract of sale in the present case. The High Court has followed its previous decision in Commissioner of Sales Tax, Madhya Pradesh v. Nathani Brothers ([1968] 21 S.T.C. 465). But for the reasons already given we consider that the decision in Commissioner of Sales Tax, Madhya Pradesh v. Nathani Brothers ([1968] 21 S.T.C. 465) was not correct.For these reasons we hold that in the facts and circumstances of this case the sales of manganese ore by the appellant were in the course of inter-State trade and therefore exempted from tax under the C.P. and Berar Sales Tax Act, 1947, and the question of law referred to the High Court must be answered in favour of the appellant and against the Commissioner of Sales Tax, Madhya Pradesh.
### Response:
1
### Explanation:
In the present case the entire turnover of the appellant consisted of sale of manganese ore to eight firms outside the State, some of Bombay and some of Nagpur. There was a written contract of sale between the appellant and each of these firms, on more or less identical terms, the only material difference being that under two of the contracts the rate was fixed f.o.r. Bombay and under the rest f.o.r. Katanjhari, which is in the State of Madhya Pradesh. There is no disputed that the ore was loaded by the appellant into wagons at Katanjhari indented by the buying firm. There is also no dispute that the wagons went out of the State of Nagpur and Bombay respectively, the buyer acting as consignor andwas an important stipulation in each of the contracts that the first weight at Gondia weigh-bridge shall be the weight for the purpose of the contract. This stipulation in the contract necessitated the movement of the wagons from the State of Madhya Pradesh to the Gondia weigh-bridge for the fulfilment of the terms of the contract as to the payment of the price. Gondia weigh-bridge is outside the State of Madhya Pradesh. On a scrutiny of the terms of the contract, it is clear that the first weighment at the Gondia weigh-bridge was the basis of the fixation of price of the manganese ore and therefore the parties necessarily contemplated the movement of the goods to the Gondia weigh-bridge and the weighment of the goods at Gondia in performance of the terms of the contract. In our opinion, the movement of goods across the frontier was a direct and necessary consequence of the important covenant with regard to the fixation of price. It follows that the sales under the eight contracts were inter-State sales within the language of section 3(a) of the Central Sales Tax Act and were not liable to be taxed under the Madhya Pradesh General Sales Tax Act. In our opinion, the present case falls within the ratio of the decision of this court in Commissioner of Sales Tax, M.P. v. Allwyn Cooper (Civil Appeal No. 1208 of 1966 decided on 21-8-1968, since reported at [1970] 25 S.T.C. 26), in which the relevant clauses of the contract of sale were almost identical with the terms of the contract of sale in the present case. The High Court has followed its previous decision in Commissioner of Sales Tax, Madhya Pradesh v. Nathani Brothers ([1968] 21 S.T.C. 465). But for the reasons already given we consider that the decision in Commissioner of Sales Tax, Madhya Pradesh v. Nathani Brothers ([1968] 21 S.T.C. 465) was not correct.For these reasons we hold that in the facts and circumstances of this case the sales of manganese ore by the appellant were in the course of inter-State trade and therefore exempted from tax under the C.P. and Berar Sales Tax Act, 1947, and the question of law referred to the High Court must be answered in favour of the appellant and against the Commissioner of Sales Tax, Madhya Pradesh.
|
MADAN MOHAN SINGH Vs. VED PRAKASH ARYA | court by which trial court held that defendant was tenant of the premises. The trial court framed the Issue No.4, whether the defendant is a tenant ? The trial court while answering Issue No.4 recorded the following finding: Therefore, the defendant has to be held to be a tenant in respect of the booth in question notwithstanding the fact that the defendant failed to prove any documents pertaining to the tenancy. Therefore, this issue is also decided in favour of the defendant and against the plaintiff. 17. The categorical finding recorded by the trial court is that the defendant failed to prove any documents pertaining to the tenancy. The tenancy is a relationship which is created between two parties. The agreement of tenancy can be both by writing or oral. Even if there is oral agreement of tenancy, the Court has to look into the circumstances and intention of the parties and other material to conclude as to whether there was any tenancy or not. The present is not a case where defendant claimed any rent agreement. The defendant has come up with a case that he is paying rent at the rate of Rs.450/- per month. Defendant in his written statement has stated that plaintiff has never issued any rent receipt. Thus, present is not a case where there was any rent receipt filed by the defendant in support of his claim of tenancy. The defendant himself appeared as DW-2. In cross-examination following statement was made by DW-2: No rent note was written in December, 1976 regarding booth in question. I have no receipt in my possession with regard to payment of rent. I maintain books of account in the regular course of business with regard to the business being carried out in the shop. I cannot produce the account books with regard to the business being done in the shop. I have not maintain any account with regard to payment of rent to the plaintiff. I have sent the rent by money order to the plaintiff, but the plaintiff never received any money order and I cannot produce any receipt of the money order vide which the plaintiff would have accepted the rent with regard to the premises. 18. This court had laid down in C.M. Beena and another vs. P.N. Ramachandra Rao, 2004 (3) SCC 595, that conduct of the parties before and after the creation of relationship is relevant for finding out their intention. 19. When there is no evidence of taking premises on rent and it is admitted by DW-2 that he had not maintained any record of accounts of payment of rent, there is no base for holding that relationship of landlord and tenant is proved. The trial court itself has held that defendant had failed to prove any documents pertaining to tenancy. The First Appellate Court, thus, has rightly come to the conclusion that findings of the trial court that the defendant is a tenant is based on the surmises and conjectures. 20. One more fact to be noticed is that the defendant claimed his tenancy with effect from 18.12.1976. On 18.12.1976, admittedly partnership deed was signed both by the plaintiff and defendant which was before the Court. The defendant had not denied the execution of partnership deed but he wanted to wish-away the partnership deed saying that it was a sham document to save the hirer from rigours of clause 12 of the Allotment Order. When the parties signed a document and entered into a partnership deed, they cannot wish away the consequences which flow from the signing of deed. The plaintiff having categorically denied the tenanacy and there being no evidence with regard to the tenancy, we do not find any error in the judgment of the First Appellate Court that defendant was not a tenant of the premises. We do not find any error in the judgment of the First Appellate Court holding that defendant was not a tenant of the premises. 21. When Clause 12 of the Allotment Letter as noted above prohibits the hirer from subletting the premises or any part thereof, it is the decision of the Chief Administrator which shall be binding on the parties. The relevant portion of Clause 12 in this regard is You will not sublet the premises or any part thereof. If there is any dispute as to whether the premises have been sublet or not the decision of the Chief Administrator, Chandigarh, on the point shall be binding on the parties. As noted above, Chief Administrator in its order dated 04.03.1986 which was passed in the appeal filed by the defendant himself, has concluded that the Ved Prakash-defendant (respondent herein) was a servant of the hirer. The said decision by clause 12 is final between the parties and it is not open for the defendant to plead contrary to the above. Both the trial court and the High Court have erred in not taking in consideration Clause 12 and finding of the Chief Administrator in its order dated 04.03.1986. The finding of the Chief Administrator dated 04.03.1986 which was passed after the order of the Estate Officer cannot be wished away by the defendant nor can be ignored while deciding the question as to whether the premises were sublet to the defendant or not. 22. We may also notice that the High Court while deciding the Regular Second Appeal filed by the defendant has also decided Regular Second Appeal filed by the appellant-plaintiff which arose from the Suit No.77 of 1986 filed by the plaintiff seeking relief for permanent and mandatory injunction, restraining the defendant from using the Booth No.186 for cycle repairs. The Regular Scond Appeal No.2610 of 2002 filed by the plaintiff-appellant has also been dismissed. In view of our decision that Suit No.77 of 1986 filed by the appellant deserved to be decreed and had rightly been decreed by the First Appellate Court, the judgment of the High Court in RSA No.2610 of 2002 is of no avail. | 1[ds]10. There is no dispute between the parties that Booth No.186 was allotted to the plaintiff-appellant by order dated 20.06.1972. The condition Nos.12, 13 and 19 which are relevant for the present case are as follows:12. You will have no right to transfer your rights under this lease directly or indirectly. You will not sublet the premises or any part thereof. If there is any dispute as to whether the premises have been sublet or not the decision of the Chief Administrator, Chandigarh, on the point shall be binding on the parties, no fragmentation of the building be permissible.13. The building shall be used only for the purpose it is leased out cattle poultry feed and for no other purpose.19. The undersigned shall have full rights, power and authority at all times to do through his officers or servants all acts and things which may be necessary or expedient for the purpose of enforcing compliance with all or any of the terms conditions and reservations herein contained and to recover from you the cost of doing any such act or thing.11. It is also admitted that a partnership deed dated 18.12.1976 was executed both by the plaintiff and the defendant under which deed it was decided and agreed mutually to carry out the business of cycle repairing etc. in Booth No.186. It is relevant to notice that the execution of partnership deed was not disputed by the defendant, Ved Prakash but his case was that he took premises on rent at the rate of Rs.450/- per month on 18.12.1976. The partnership document was termed as sham document by the defendant.12. As noted above, the premises was resumed by the Estate Officer by order dated 09.09.1980 which was issued on 15.04.1982 on the ground that premises is not being used for the purpose for which it was granted but it was being used for cycle repairing. Against the order dated 09.09.1980 the respondent himself filed an Appeal No.21 of 1984 where the plaintiff-appellant had also appeared and claimed that the defendant is only a servant of the plaintiff. The Chief Administrator allowed the appeal holding that misuse having stopped the allotment be restored to hirer, Madan Mohan Singh. The Chief Administrator also after considering the arguments of the parties came to the conclusion that Ved Prakash was a servant of the hirer.14. We have noticed Clause 19 of the Allotment Order in which, it is the Estate Officer, Chandigarh Administration who has full rights, power and authority for the purpose of enforcing compliance with all or any of the terms, conditions of allotment dated 20.06.1972. It is further relevant to note that Booth was resumed by the Estate Officer by order dated 09.09.1980 (issued on 15.04.1982) on the ground of uses of the premises not for cattle poultry feed but cycle/autorickshaws repairing. The Chief Administrator in his judgment dated 13.03.1986, which order was passed in appeal filed by the defendant against the resumption order, has observed after hearing the argument of hirer that the respondent is only a servant of the hirer. The above observation and finding of the Chief Administrator cannot be wished-away by the defendant as irrelevant. The High Court while referring to the order of the Chief Administrator has only observed that the Appellate Court has misread that defendant had taken a stand that he was merely a servant, which is against the record. When the Administrator has noted the case of the parties and came to the conclusion that defendant was a servant of the hirer, those findings cannot be said to be against the record. The specific findings of the Chief Administrator are The consideration of argument put forward by Sh. Kaushal and that of the evidence adduced before me by him lead me to conclude that the appellant being a servant of the hirer has no cause of action to agitate the impugned order. Further the Chief Administrator has held that there is no justification to deprive the hirer of the Booth. In view of the order of Chief Administrator dated 13.03.1986, the appellant-plaintiff was clearly entitled to the possession and user of the Booth but when the possession was not handed over by the defendant to the appellant, he had to file the suit for mandatory injunction.17. The categorical finding recorded by the trial court is that the defendant failed to prove any documents pertaining to the tenancy. The tenancy is a relationship which is created between two parties. The agreement of tenancy can be both by writing or oral. Even if there is oral agreement of tenancy, the Court has to look into the circumstances and intention of the parties and other material to conclude as to whether there was any tenancy or not. The present is not a case where defendant claimed any rent agreement. The defendant has come up with a case that he is paying rent at the rate of Rs.450/- per month. Defendant in his written statement has stated that plaintiff has never issued any rent receipt. Thus, present is not a case where there was any rent receipt filed by the defendant in support of his claim of tenancy. The defendant himself appeared as DW-2. In cross-examination following statement was made by DW-2:No rent note was written in December, 1976 regarding booth in question. I have no receipt in my possession with regard to payment of rent. I maintain books of account in the regular course of business with regard to the business being carried out in the shop. I cannot produce the account books with regard to the business being done in the shop. I have not maintain any account with regard to payment of rent to the plaintiff. I have sent the rent by money order to the plaintiff, but the plaintiff never received any money order and I cannot produce any receipt of the money order vide which the plaintiff would have accepted the rent with regard to the premises.18. This court had laid down in C.M. Beena and another vs. P.N. Ramachandra Rao, 2004 (3) SCC 595, that conduct of the parties before and after the creation of relationship is relevant for finding out their intention.19. When there is no evidence of taking premises on rent and it is admitted by DW-2 that he had not maintained any record of accounts of payment of rent, there is no base for holding that relationship of landlord and tenant is proved. The trial court itself has held that defendant had failed to prove any documents pertaining to tenancy. The First Appellate Court, thus, has rightly come to the conclusion that findings of the trial court that the defendant is a tenant is based on the surmises and conjectures.20. One more fact to be noticed is that the defendant claimed his tenancy with effect from 18.12.1976. On 18.12.1976, admittedly partnership deed was signed both by the plaintiff and defendant which was before the Court. The defendant had not denied the execution of partnership deed but he wanted to wish-away the partnership deed saying that it was a sham document to save the hirer from rigours of clause 12 of the Allotment Order. When the parties signed a document and entered into a partnership deed, they cannot wish away the consequences which flow from the signing of deed. The plaintiff having categorically denied the tenanacy and there being no evidence with regard to the tenancy, we do not find any error in the judgment of the First Appellate Court that defendant was not a tenant of the premises. We do not find any error in the judgment of the First Appellate Court holding that defendant was not a tenant of the premises.21. When Clause 12 of the Allotment Letter as noted above prohibits the hirer from subletting the premises or any part thereof, it is the decision of the Chief Administrator which shall be binding on the parties. The relevant portion of Clause 12 in this regard is You will not sublet the premises or any part thereof. If there is any dispute as to whether the premises have been sublet or not the decision of the Chief Administrator, Chandigarh, on the point shall be binding on the parties. As noted above, Chief Administrator in its order dated 04.03.1986 which was passed in the appeal filed by the defendant himself, has concluded that the Ved Prakash-defendant (respondent herein) was a servant of the hirer. The said decision by clause 12 is final between the parties and it is not open for the defendant to plead contrary to the above. Both the trial court and the High Court have erred in not taking in consideration Clause 12 and finding of the Chief Administrator in its order dated 04.03.1986. The finding of the Chief Administrator dated 04.03.1986 which was passed after the order of the Estate Officer cannot be wished away by the defendant nor can be ignored while deciding the question as to whether the premises were sublet to the defendant or not.22. We may also notice that the High Court while deciding the Regular Second Appeal filed by the defendant has also decided Regular Second Appeal filed by the appellant-plaintiff which arose from the Suit No.77 of 1986 filed by the plaintiff seeking relief for permanent and mandatory injunction, restraining the defendant from using the Booth No.186 for cycle repairs. The Regular Scond Appeal No.2610 of 2002 filed by the plaintiff-appellant has also been dismissed. In view of our decision that Suit No.77 of 1986 filed by the appellant deserved to be decreed and had rightly been decreed by the First Appellate Court, the judgment of the High Court in RSA No.2610 of 2002 is of no avail. | 1 | 4,086 | 1,738 | ### Instruction:
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court by which trial court held that defendant was tenant of the premises. The trial court framed the Issue No.4, whether the defendant is a tenant ? The trial court while answering Issue No.4 recorded the following finding: Therefore, the defendant has to be held to be a tenant in respect of the booth in question notwithstanding the fact that the defendant failed to prove any documents pertaining to the tenancy. Therefore, this issue is also decided in favour of the defendant and against the plaintiff. 17. The categorical finding recorded by the trial court is that the defendant failed to prove any documents pertaining to the tenancy. The tenancy is a relationship which is created between two parties. The agreement of tenancy can be both by writing or oral. Even if there is oral agreement of tenancy, the Court has to look into the circumstances and intention of the parties and other material to conclude as to whether there was any tenancy or not. The present is not a case where defendant claimed any rent agreement. The defendant has come up with a case that he is paying rent at the rate of Rs.450/- per month. Defendant in his written statement has stated that plaintiff has never issued any rent receipt. Thus, present is not a case where there was any rent receipt filed by the defendant in support of his claim of tenancy. The defendant himself appeared as DW-2. In cross-examination following statement was made by DW-2: No rent note was written in December, 1976 regarding booth in question. I have no receipt in my possession with regard to payment of rent. I maintain books of account in the regular course of business with regard to the business being carried out in the shop. I cannot produce the account books with regard to the business being done in the shop. I have not maintain any account with regard to payment of rent to the plaintiff. I have sent the rent by money order to the plaintiff, but the plaintiff never received any money order and I cannot produce any receipt of the money order vide which the plaintiff would have accepted the rent with regard to the premises. 18. This court had laid down in C.M. Beena and another vs. P.N. Ramachandra Rao, 2004 (3) SCC 595, that conduct of the parties before and after the creation of relationship is relevant for finding out their intention. 19. When there is no evidence of taking premises on rent and it is admitted by DW-2 that he had not maintained any record of accounts of payment of rent, there is no base for holding that relationship of landlord and tenant is proved. The trial court itself has held that defendant had failed to prove any documents pertaining to tenancy. The First Appellate Court, thus, has rightly come to the conclusion that findings of the trial court that the defendant is a tenant is based on the surmises and conjectures. 20. One more fact to be noticed is that the defendant claimed his tenancy with effect from 18.12.1976. On 18.12.1976, admittedly partnership deed was signed both by the plaintiff and defendant which was before the Court. The defendant had not denied the execution of partnership deed but he wanted to wish-away the partnership deed saying that it was a sham document to save the hirer from rigours of clause 12 of the Allotment Order. When the parties signed a document and entered into a partnership deed, they cannot wish away the consequences which flow from the signing of deed. The plaintiff having categorically denied the tenanacy and there being no evidence with regard to the tenancy, we do not find any error in the judgment of the First Appellate Court that defendant was not a tenant of the premises. We do not find any error in the judgment of the First Appellate Court holding that defendant was not a tenant of the premises. 21. When Clause 12 of the Allotment Letter as noted above prohibits the hirer from subletting the premises or any part thereof, it is the decision of the Chief Administrator which shall be binding on the parties. The relevant portion of Clause 12 in this regard is You will not sublet the premises or any part thereof. If there is any dispute as to whether the premises have been sublet or not the decision of the Chief Administrator, Chandigarh, on the point shall be binding on the parties. As noted above, Chief Administrator in its order dated 04.03.1986 which was passed in the appeal filed by the defendant himself, has concluded that the Ved Prakash-defendant (respondent herein) was a servant of the hirer. The said decision by clause 12 is final between the parties and it is not open for the defendant to plead contrary to the above. Both the trial court and the High Court have erred in not taking in consideration Clause 12 and finding of the Chief Administrator in its order dated 04.03.1986. The finding of the Chief Administrator dated 04.03.1986 which was passed after the order of the Estate Officer cannot be wished away by the defendant nor can be ignored while deciding the question as to whether the premises were sublet to the defendant or not. 22. We may also notice that the High Court while deciding the Regular Second Appeal filed by the defendant has also decided Regular Second Appeal filed by the appellant-plaintiff which arose from the Suit No.77 of 1986 filed by the plaintiff seeking relief for permanent and mandatory injunction, restraining the defendant from using the Booth No.186 for cycle repairs. The Regular Scond Appeal No.2610 of 2002 filed by the plaintiff-appellant has also been dismissed. In view of our decision that Suit No.77 of 1986 filed by the appellant deserved to be decreed and had rightly been decreed by the First Appellate Court, the judgment of the High Court in RSA No.2610 of 2002 is of no avail.
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adduced before me by him lead me to conclude that the appellant being a servant of the hirer has no cause of action to agitate the impugned order. Further the Chief Administrator has held that there is no justification to deprive the hirer of the Booth. In view of the order of Chief Administrator dated 13.03.1986, the appellant-plaintiff was clearly entitled to the possession and user of the Booth but when the possession was not handed over by the defendant to the appellant, he had to file the suit for mandatory injunction.17. The categorical finding recorded by the trial court is that the defendant failed to prove any documents pertaining to the tenancy. The tenancy is a relationship which is created between two parties. The agreement of tenancy can be both by writing or oral. Even if there is oral agreement of tenancy, the Court has to look into the circumstances and intention of the parties and other material to conclude as to whether there was any tenancy or not. The present is not a case where defendant claimed any rent agreement. The defendant has come up with a case that he is paying rent at the rate of Rs.450/- per month. Defendant in his written statement has stated that plaintiff has never issued any rent receipt. Thus, present is not a case where there was any rent receipt filed by the defendant in support of his claim of tenancy. The defendant himself appeared as DW-2. In cross-examination following statement was made by DW-2:No rent note was written in December, 1976 regarding booth in question. I have no receipt in my possession with regard to payment of rent. I maintain books of account in the regular course of business with regard to the business being carried out in the shop. I cannot produce the account books with regard to the business being done in the shop. I have not maintain any account with regard to payment of rent to the plaintiff. I have sent the rent by money order to the plaintiff, but the plaintiff never received any money order and I cannot produce any receipt of the money order vide which the plaintiff would have accepted the rent with regard to the premises.18. This court had laid down in C.M. Beena and another vs. P.N. Ramachandra Rao, 2004 (3) SCC 595, that conduct of the parties before and after the creation of relationship is relevant for finding out their intention.19. When there is no evidence of taking premises on rent and it is admitted by DW-2 that he had not maintained any record of accounts of payment of rent, there is no base for holding that relationship of landlord and tenant is proved. The trial court itself has held that defendant had failed to prove any documents pertaining to tenancy. The First Appellate Court, thus, has rightly come to the conclusion that findings of the trial court that the defendant is a tenant is based on the surmises and conjectures.20. One more fact to be noticed is that the defendant claimed his tenancy with effect from 18.12.1976. On 18.12.1976, admittedly partnership deed was signed both by the plaintiff and defendant which was before the Court. The defendant had not denied the execution of partnership deed but he wanted to wish-away the partnership deed saying that it was a sham document to save the hirer from rigours of clause 12 of the Allotment Order. When the parties signed a document and entered into a partnership deed, they cannot wish away the consequences which flow from the signing of deed. The plaintiff having categorically denied the tenanacy and there being no evidence with regard to the tenancy, we do not find any error in the judgment of the First Appellate Court that defendant was not a tenant of the premises. We do not find any error in the judgment of the First Appellate Court holding that defendant was not a tenant of the premises.21. When Clause 12 of the Allotment Letter as noted above prohibits the hirer from subletting the premises or any part thereof, it is the decision of the Chief Administrator which shall be binding on the parties. The relevant portion of Clause 12 in this regard is You will not sublet the premises or any part thereof. If there is any dispute as to whether the premises have been sublet or not the decision of the Chief Administrator, Chandigarh, on the point shall be binding on the parties. As noted above, Chief Administrator in its order dated 04.03.1986 which was passed in the appeal filed by the defendant himself, has concluded that the Ved Prakash-defendant (respondent herein) was a servant of the hirer. The said decision by clause 12 is final between the parties and it is not open for the defendant to plead contrary to the above. Both the trial court and the High Court have erred in not taking in consideration Clause 12 and finding of the Chief Administrator in its order dated 04.03.1986. The finding of the Chief Administrator dated 04.03.1986 which was passed after the order of the Estate Officer cannot be wished away by the defendant nor can be ignored while deciding the question as to whether the premises were sublet to the defendant or not.22. We may also notice that the High Court while deciding the Regular Second Appeal filed by the defendant has also decided Regular Second Appeal filed by the appellant-plaintiff which arose from the Suit No.77 of 1986 filed by the plaintiff seeking relief for permanent and mandatory injunction, restraining the defendant from using the Booth No.186 for cycle repairs. The Regular Scond Appeal No.2610 of 2002 filed by the plaintiff-appellant has also been dismissed. In view of our decision that Suit No.77 of 1986 filed by the appellant deserved to be decreed and had rightly been decreed by the First Appellate Court, the judgment of the High Court in RSA No.2610 of 2002 is of no avail.
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Kunwar Shri Vir Rajendra Singh Vs. Union Of India & Ors | private property.10. The next question for consideration is whether the President has power to recognise a Ruler. Counsel on behalf of the petitioner contended that clause (22) of Article 366 of the Constitution was a mere definition and did not confer any right on the President to recognise a Ruler. This contention is not correct. In the first place, if it be said that clause (22) of Article 366 does not empower the President to recognise a Ruler clause (22) will be robbed of its real content and the definition will be bereft of the core for which the definition is enacted. Secondly, clause (22) of Article 366 of the Constitution is the only Article in the Constitution which speaks of recognition of Rulership. To suggest that clause (22) does not contain any power will mean that the clause is empty and is devoid of the very purpose for which the definition is enacted. Thirdly, the most significant words in clause (22) of Article 366 are "for the time being is recognised by the President", not only in relation to a Ruler but also in relation to a successor of such Ruler. The words "is recognised by the President" indicate beyond any doubt that the power of the President to recognise a Ruler is embedded and inherent in the clause itself.Again, the words "for the time being" indicate that the President has power not only to recognise but also to withdraw recognition whenever occasion arises.11. It was said by counsel for the petitioner that Article XIV of the Covenant which the late Ruler entered into with the United State of Rajasthan guaranteed succession and, therefore, the petitioner had a fundamental right to claim succession according to personal law. With the coming into effect of the Constitution the States ceased to exist as separate entities. The Covenants also ceased to be effective after the enactment of the Constitution in so far as the Covenants were inconsistent with the Constitution. The meaning of Article XIV of the Covenant is that the claim to succession on the basis of custom and law is preserved. Article XIV of the Covenant by itself is not evidence of any custom or law. If the petitioner relied on Article XIV, the petitioner has to establish such right based on custom or law before the appropriate authority. Whatever rights the petitioner asserted in regard to succession were the subject matter of enquiry by the Committee which was constituted by the President to enquire into the rival claims to recognition of Rulership. The petitioner appeared before the Committee and preferred claims. The Committee was constituted to examine the contentions of rival claimants. The Committee gave its report as to who was best entitled to recognition by the President. It was entirely a matter within the province of the President to recognise a Ruler. The power to recognise a Ruler which is conferred on the President by the Constitution cannot be challenged on the ground that the power is unguided. The President exercised the power by appointing a Committee to examine the rival claims.12. The recognition of Rulership is one of personal status. It cannot be said that claim to recognition of Rulership is either purely a matter of inheritance or a matter of descent by devolution. Nor can claim to recognition of Rulership be based only on covenants and treaties.That is why Article 363 of the Constitution constitutes a bar to interference by Courts in a dispute arising out of treaties and agreements. No claim to recognition of Rulership by virtue of a Covenant is justiciable in a Court of law. The Constitution, therefore, provided for the act of recognition of the Rulership by the President as a political power.13. It has to be recognised that the right to private properties of the Ruler is not embraced within clause (22) of Article 366 of the Constitution which speaks of recognition of a Ruler by the President.14. Counsel on behalf of the petitioner contended that the recognition of a Ruler itself instantaneously invested the Ruler with property and that Rulership and property were blended together. An illustration of combination of office and property in the case of Mathadhipati was cited as an analogy. The property is an appendage to the office in the case of Maths. The example of the office of a trustee furnishes the answer where office and properties are vested in the trustee. It cannot be said that recognition of Rulership is bound up with recognition of private properties of the Ruler because the former is within the political power of the President and the latter is governed by the personal law of succession. Recognition of Rulership by the President is not recognising any right to private properties of the Ruler because recognition of Rulership is an exercise of the political power of the President. The distinction between recognition of Rulership and succession to private properties of the Ruler has to be kept in the forefront. The rights to private properties of Rulers are not the matters of recognition of Rulership. The recognition of Rulership is not an indicia of property but it entitles the Ruler to the enjoyment of the Privy Purse contemplated in Article 291 and the personal rights, privileges and dignities of the Ruler of an Indian State mentioned in Article 362 of the Constitution. Therefore, recognition of Rulership is not a deprivation of right to property. If the petitioner has any claim to any private property said to belong to the last Ruler, the petitioner has not established any such claim in any court of law. It was said on behalf of the petitioner that the Ruler after recognition by the President came to possess private properties said to belong to the last Ruler. If the petitioner has any competing rights with the Ruler in relation to such private properties such a claim is neither a fundamental right nor is it comprised in the act of recognition of a Ruler by the President. | 0[ds]It is manifest that the right to private properties of the last Ruler depends upon the personal law of succession to the said private properties.The recognition of the Ruler is a right to succeed to the gaddi of the Ruler. This recognition of Rulership by the President is an exercise of political power vested in the President and is thus an instance of purely executive jurisdiction of the President. The act of recognition of Rulership is not, as far as the President is concerned, associated with any act of recognition of right to private properties.In order to establish that there has been an infringement of rights to property or proprietary rights, the petitioner has to establish that the petitioner owns or has a right to property which has been infringed by the impugned act. In the present case, the petitioner cannot be heard to say that the petitioner possesses any private property which has been invalid. The petitioners contention fails for two reasons. First, the recognition of Rulership by the President does not, as far as the President is concerned, touch any of the private properties claimed. Secondly, the petitioner does not possess any private property which has been affected by the act of recognition of Rulership.It must be stated here that as far the right to privy purse of a Ruler is concerned, Article 291 of the Constitution enacts that payment of any sum which has been guaranteed to any Ruler of a State as a privy purse shall be charged on and paid out of the consolidated fund of India. The privy purse is not an item of private property to which the Ruler succeeds. Counsel for the petitioner also realised the effect of Article 291 and did not press the contention of privy purse being a privatecontention is not correct. In the first place, if it be said that clause (22) of Article 366 does not empower the President to recognise a Ruler clause (22) will be robbed of its real content and the definition will be bereft of the core for which the definition is enacted. Secondly, clause (22) of Article 366 of the Constitution is the only Article in the Constitution which speaks of recognition of Rulership. To suggest that clause (22) does not contain any power will mean that the clause is empty and is devoid of the very purpose for which the definition is enacted. Thirdly, the most significant words in clause (22) of Article 366 are "for the time being is recognised by the President", not only in relation to a Ruler but also in relation to a successor of such Ruler. The words "is recognised by the President" indicate beyond any doubt that the power of the President to recognise a Ruler is embedded and inherent in the clause itself.Again, the words "for the time being" indicate that the President has power not only to recognise but also to withdraw recognition whenever occasioncontention is not correct. In the first place, if it be said that clause (22) of Article 366 does not empower the President to recognise a Ruler clause (22) will be robbed of its real content and the definition will be bereft of the core for which the definition is enacted. Secondly, clause (22) of Article 366 of the Constitution is the only Article in the Constitution which speaks of recognition of Rulership. To suggest that clause (22) does not contain any power will mean that the clause is empty and is devoid of the very purpose for which the definition is enacted. Thirdly, the most significant words in clause (22) of Article 366 are "for the time being is recognised by the President", not only in relation to a Ruler but also in relation to a successor of such Ruler. The words "is recognised by the President" indicate beyond any doubt that the power of the President to recognise a Ruler is embedded and inherent in the clause itself.Again, the words "for the time being" indicate that the President has power not only to recognise but also to withdraw recognition whenever occasionthe coming into effect of the Constitution the States ceased to exist as separate entities. The Covenants also ceased to be effective after the enactment of the Constitution in so far as the Covenants were inconsistent with the Constitution. The meaning of Article XIV of the Covenant is that the claim to succession on the basis of custom and law is preserved. Article XIV of the Covenant by itself is not evidence of any custom or law. If the petitioner relied on Article XIV, the petitioner has to establish such right based on custom or law before the appropriate authority. Whatever rights the petitioner asserted in regard to succession were the subject matter of enquiry by the Committee which was constituted by the President to enquire into the rival claims to recognition of Rulership. The petitioner appeared before the Committee and preferred claims. The Committee was constituted to examine the contentions of rival claimants. The Committee gave its report as to who was best entitled to recognition by the President. It was entirely a matter within the province of the President to recognise a Ruler. The power to recognise a Ruler which is conferred on the President by the Constitution cannot be challenged on the ground that the power is unguided. The President exercised the power by appointing a Committee to examine the rival claims.12. The recognition of Rulership is one of personal status. It cannot be said that claim to recognition of Rulership is either purely a matter of inheritance or a matter of descent by devolution. Nor can claim to recognition of Rulership be based only on covenants and treaties.That is why Article 363 of the Constitution constitutes a bar to interference by Courts in a dispute arising out of treaties and agreements. No claim to recognition of Rulership by virtue of a Covenant is justiciable in a Court of law. The Constitution, therefore, provided for the act of recognition of the Rulership by the President as a political power.13. It has to be recognised that the right to private properties of the Ruler is not embraced within clause (22) of Article 366 of the Constitution which speaks of recognition of a Ruler by theproperty is an appendage to the office in the case of Maths. The example of the office of a trustee furnishes the answer where office and properties are vested in the trustee. It cannot be said that recognition of Rulership is bound up with recognition of private properties of the Ruler because the former is within the political power of the President and the latter is governed by the personal law of succession. Recognition of Rulership by the President is not recognising any right to private properties of the Ruler because recognition of Rulership is an exercise of the political power of the President. The distinction between recognition of Rulership and succession to private properties of the Ruler has to be kept in the forefront. The rights to private properties of Rulers are not the matters of recognition of Rulership. The recognition of Rulership is not an indicia of property but it entitles the Ruler to the enjoyment of the Privy Purse contemplated in Article 291 and the personal rights, privileges and dignities of the Ruler of an Indian State mentioned in Article 362 of the Constitution. Therefore, recognition of Rulership is not a deprivation of right to property. If the petitioner has any claim to any private property said to belong to the last Ruler, the petitioner has not established any such claim in any court of law. It was said on behalf of the petitioner that the Ruler after recognition by the President came to possess private properties said to belong to the last Ruler. If the petitioner has any competing rights with the Ruler in relation to such private properties such a claim is neither a fundamental right nor is it comprised in the act of recognition of a Ruler by the President. | 0 | 2,797 | 1,458 | ### Instruction:
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private property.10. The next question for consideration is whether the President has power to recognise a Ruler. Counsel on behalf of the petitioner contended that clause (22) of Article 366 of the Constitution was a mere definition and did not confer any right on the President to recognise a Ruler. This contention is not correct. In the first place, if it be said that clause (22) of Article 366 does not empower the President to recognise a Ruler clause (22) will be robbed of its real content and the definition will be bereft of the core for which the definition is enacted. Secondly, clause (22) of Article 366 of the Constitution is the only Article in the Constitution which speaks of recognition of Rulership. To suggest that clause (22) does not contain any power will mean that the clause is empty and is devoid of the very purpose for which the definition is enacted. Thirdly, the most significant words in clause (22) of Article 366 are "for the time being is recognised by the President", not only in relation to a Ruler but also in relation to a successor of such Ruler. The words "is recognised by the President" indicate beyond any doubt that the power of the President to recognise a Ruler is embedded and inherent in the clause itself.Again, the words "for the time being" indicate that the President has power not only to recognise but also to withdraw recognition whenever occasion arises.11. It was said by counsel for the petitioner that Article XIV of the Covenant which the late Ruler entered into with the United State of Rajasthan guaranteed succession and, therefore, the petitioner had a fundamental right to claim succession according to personal law. With the coming into effect of the Constitution the States ceased to exist as separate entities. The Covenants also ceased to be effective after the enactment of the Constitution in so far as the Covenants were inconsistent with the Constitution. The meaning of Article XIV of the Covenant is that the claim to succession on the basis of custom and law is preserved. Article XIV of the Covenant by itself is not evidence of any custom or law. If the petitioner relied on Article XIV, the petitioner has to establish such right based on custom or law before the appropriate authority. Whatever rights the petitioner asserted in regard to succession were the subject matter of enquiry by the Committee which was constituted by the President to enquire into the rival claims to recognition of Rulership. The petitioner appeared before the Committee and preferred claims. The Committee was constituted to examine the contentions of rival claimants. The Committee gave its report as to who was best entitled to recognition by the President. It was entirely a matter within the province of the President to recognise a Ruler. The power to recognise a Ruler which is conferred on the President by the Constitution cannot be challenged on the ground that the power is unguided. The President exercised the power by appointing a Committee to examine the rival claims.12. The recognition of Rulership is one of personal status. It cannot be said that claim to recognition of Rulership is either purely a matter of inheritance or a matter of descent by devolution. Nor can claim to recognition of Rulership be based only on covenants and treaties.That is why Article 363 of the Constitution constitutes a bar to interference by Courts in a dispute arising out of treaties and agreements. No claim to recognition of Rulership by virtue of a Covenant is justiciable in a Court of law. The Constitution, therefore, provided for the act of recognition of the Rulership by the President as a political power.13. It has to be recognised that the right to private properties of the Ruler is not embraced within clause (22) of Article 366 of the Constitution which speaks of recognition of a Ruler by the President.14. Counsel on behalf of the petitioner contended that the recognition of a Ruler itself instantaneously invested the Ruler with property and that Rulership and property were blended together. An illustration of combination of office and property in the case of Mathadhipati was cited as an analogy. The property is an appendage to the office in the case of Maths. The example of the office of a trustee furnishes the answer where office and properties are vested in the trustee. It cannot be said that recognition of Rulership is bound up with recognition of private properties of the Ruler because the former is within the political power of the President and the latter is governed by the personal law of succession. Recognition of Rulership by the President is not recognising any right to private properties of the Ruler because recognition of Rulership is an exercise of the political power of the President. The distinction between recognition of Rulership and succession to private properties of the Ruler has to be kept in the forefront. The rights to private properties of Rulers are not the matters of recognition of Rulership. The recognition of Rulership is not an indicia of property but it entitles the Ruler to the enjoyment of the Privy Purse contemplated in Article 291 and the personal rights, privileges and dignities of the Ruler of an Indian State mentioned in Article 362 of the Constitution. Therefore, recognition of Rulership is not a deprivation of right to property. If the petitioner has any claim to any private property said to belong to the last Ruler, the petitioner has not established any such claim in any court of law. It was said on behalf of the petitioner that the Ruler after recognition by the President came to possess private properties said to belong to the last Ruler. If the petitioner has any competing rights with the Ruler in relation to such private properties such a claim is neither a fundamental right nor is it comprised in the act of recognition of a Ruler by the President.
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which the definition is enacted. Secondly, clause (22) of Article 366 of the Constitution is the only Article in the Constitution which speaks of recognition of Rulership. To suggest that clause (22) does not contain any power will mean that the clause is empty and is devoid of the very purpose for which the definition is enacted. Thirdly, the most significant words in clause (22) of Article 366 are "for the time being is recognised by the President", not only in relation to a Ruler but also in relation to a successor of such Ruler. The words "is recognised by the President" indicate beyond any doubt that the power of the President to recognise a Ruler is embedded and inherent in the clause itself.Again, the words "for the time being" indicate that the President has power not only to recognise but also to withdraw recognition whenever occasioncontention is not correct. In the first place, if it be said that clause (22) of Article 366 does not empower the President to recognise a Ruler clause (22) will be robbed of its real content and the definition will be bereft of the core for which the definition is enacted. Secondly, clause (22) of Article 366 of the Constitution is the only Article in the Constitution which speaks of recognition of Rulership. To suggest that clause (22) does not contain any power will mean that the clause is empty and is devoid of the very purpose for which the definition is enacted. Thirdly, the most significant words in clause (22) of Article 366 are "for the time being is recognised by the President", not only in relation to a Ruler but also in relation to a successor of such Ruler. The words "is recognised by the President" indicate beyond any doubt that the power of the President to recognise a Ruler is embedded and inherent in the clause itself.Again, the words "for the time being" indicate that the President has power not only to recognise but also to withdraw recognition whenever occasionthe coming into effect of the Constitution the States ceased to exist as separate entities. The Covenants also ceased to be effective after the enactment of the Constitution in so far as the Covenants were inconsistent with the Constitution. The meaning of Article XIV of the Covenant is that the claim to succession on the basis of custom and law is preserved. Article XIV of the Covenant by itself is not evidence of any custom or law. If the petitioner relied on Article XIV, the petitioner has to establish such right based on custom or law before the appropriate authority. Whatever rights the petitioner asserted in regard to succession were the subject matter of enquiry by the Committee which was constituted by the President to enquire into the rival claims to recognition of Rulership. The petitioner appeared before the Committee and preferred claims. The Committee was constituted to examine the contentions of rival claimants. The Committee gave its report as to who was best entitled to recognition by the President. It was entirely a matter within the province of the President to recognise a Ruler. The power to recognise a Ruler which is conferred on the President by the Constitution cannot be challenged on the ground that the power is unguided. The President exercised the power by appointing a Committee to examine the rival claims.12. The recognition of Rulership is one of personal status. It cannot be said that claim to recognition of Rulership is either purely a matter of inheritance or a matter of descent by devolution. Nor can claim to recognition of Rulership be based only on covenants and treaties.That is why Article 363 of the Constitution constitutes a bar to interference by Courts in a dispute arising out of treaties and agreements. No claim to recognition of Rulership by virtue of a Covenant is justiciable in a Court of law. The Constitution, therefore, provided for the act of recognition of the Rulership by the President as a political power.13. It has to be recognised that the right to private properties of the Ruler is not embraced within clause (22) of Article 366 of the Constitution which speaks of recognition of a Ruler by theproperty is an appendage to the office in the case of Maths. The example of the office of a trustee furnishes the answer where office and properties are vested in the trustee. It cannot be said that recognition of Rulership is bound up with recognition of private properties of the Ruler because the former is within the political power of the President and the latter is governed by the personal law of succession. Recognition of Rulership by the President is not recognising any right to private properties of the Ruler because recognition of Rulership is an exercise of the political power of the President. The distinction between recognition of Rulership and succession to private properties of the Ruler has to be kept in the forefront. The rights to private properties of Rulers are not the matters of recognition of Rulership. The recognition of Rulership is not an indicia of property but it entitles the Ruler to the enjoyment of the Privy Purse contemplated in Article 291 and the personal rights, privileges and dignities of the Ruler of an Indian State mentioned in Article 362 of the Constitution. Therefore, recognition of Rulership is not a deprivation of right to property. If the petitioner has any claim to any private property said to belong to the last Ruler, the petitioner has not established any such claim in any court of law. It was said on behalf of the petitioner that the Ruler after recognition by the President came to possess private properties said to belong to the last Ruler. If the petitioner has any competing rights with the Ruler in relation to such private properties such a claim is neither a fundamental right nor is it comprised in the act of recognition of a Ruler by the President.
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M/s. Madan Mohan Damma Mal Ltd. & Another Vs. State of West Bengal & Another | is no direct evidence to the effect that such delivery was taken prior to Dr. Baguis taking sample of the mustard oil. But the circumstances, in our opinion, conclusively establish that appellant No. 2 had taken delivery of the wagon prior to Dr. Baguis visit and taking samples of oil from the wagon. Appellant No. 2 is not expected to and could not have got the wagon opened for the purpose of taking samples of oil, if he had not taken delivery of the wagon from the railway authorities. The railway authorities themselves would have seen to it that nobody tampers with the contents of the wagon in its charge. Appellant No. 2 must have therefore paid the freight for the wagon prior to Dr. Baguis visit and thus obtained delivery of the wagon. It was, thereafter, that he got control over the wagon and was in a position to take out oil from it or to permit anyone else to take out oil. We therefore hold that the appellants were in possession of the oil in the tank wagon when Dr. Bagui took samples of the oil from it.10. The main contention, however, for the appellants is that the presumption that the mustard oil was stored for sale by the appellants, under sub-sec. (4) of S. 462 of the Act, is rebuttable and has been fully rebutted in view of certain arrangements between the U. P. Oil Millers Association and the Deputy Commissioner of Police, Enforcement Branch, and the letter of the appellants to the Secretary of the Association (Exhibit R) on January 3, 1955.We have considered the various documents which have been referred to in support of the arrangement between the Association and the Deputy Commissioner, Enforcement Branch, but do not find therein anything which would restrain legally the appellants from selling the oil even if it is found to be adulterated. The proceedings of the meeting of the U. P. Oil Millers Association held on June 9, 1954, and attended by the Deputy Commissioner and Assistant Commissioner of the Enforcement Branch show that no such agreement has been arrived at. Even the suggestion of the Deputy Commissioner that all the members of the Association should write to their respective mills that all the quantity of oil which would be imported should at first be passed and then made delivery of, was not fully accepted, the members simply stating that they always and invariably imported pure mustard oil. It was, however, decided that the samples of oil be taken from the next morning, i. e., June 10, 1954. We however find that in November 1954, the U. P. Oil Millers Association wrote to appellant No. 1 that according to the decision of the Deputy Commissioner of Police, Enforcement Branch, every application to draw sample and test it should be accompanied by a certificate signed by the Chemist or the Manager or the Proprietor of the Mills to the effect that the mustard oil in the tank wagon was pure mustard oil free from Argemoni, linseed or any other adulteration, and that in February, 1955, and April 1955, the Deputy Commissioner of Police, Enforcement Branch, had to remind the U.P. Oil Millers Association that it should advise all its members that whenever they indent any mustard oil from outside Bengal, they would see that the railway receipts be accompanied by a clear certificate of examination from the Chemist of the factory who examined the same. Such directions from the Deputy Commissioner of Police, Enforcement Branch, do not appear to have had nay great effect, as the consignment of oil received by the appellants was without any such certificate. Mahendra Kumar Gupta, D. W. 1, Chemist of the appellants mill, deposed however that he had taken the sample of the oil sent in that wagon and found it to be genuine mustard oil, free from any adulteration. Any such certificate about the purity of the mustard oil sent is not proved to have accompanied the railway receipt and to have been shown or made over to Dr. Bagui, or to the Police Officers who had accompanied him at the time. Letter Exhibit R was sent on behalf of appellant No. 1 to the Secretary of the U. P. Oil Millers Association at 10 a.m., on January 3, 1955. The letter said :"Please arrange for sample and test through the proper authorities concerned, so that we may take the delivery of oil only if it is found pure on analysis."Any such statement can hardly be sufficient to rebut the presumption that the oil which was consigned by appellant No. 1 to itself at Calcutta was not stored for sale. The letter itself does not say that the oil will not be sold. It simply says that they may take the delivery of the oil only if it is found pure on analysis. What would be done to the oil if it is found to be impure, is not stated. The Association was not in any arrangement with the Corporation which had the sole authority to take action with respect to the adulterated mustard oil. The Enforcement Branch of the Police had nothing to do with it. In the circumstances all the so-called arrangement with the Enforcement Branch of the Police and the consequent letters, similar to letter Exhibit R, seem to be a subtle device to make things difficult for the proper authorities responsible to see that mustard oil fit for sale be pure. It is obvious in this case itself, how this sort of arrangement has provided an occasion for the coming into existence of the alleged fourth sample of mustard oil from the appellants tank wagon and the non-committal report about its purity. We are therefore of opinion that this letter Exhibit R, or the arrangement which led to such communication does not establish that the mustard oil in the wagon which will be otherwise presumed to be stored for sale by the appellants, was not stored for sale. | 1[ds]7. The Courts below found on the evidence that the mustard oil in the appellants tank wagon was adulterated with groundnut oil, that the appellants were in possession of that oil and had stored that oil for sale, in view of the presumption arising under sub-sec. (4) of S. 462 of the Act, and which had not been rebutted on behalf of the appellants. Learned counsel for the appellants has questioned the correctness of these findings.8. We have considered the evidence in connection with the analysis of the samples of mustard oil by the Chemists. Ashit Ranjan Sen, P. W. 2, Public Analyst, who examined the first sample sent by Dr. Bagui on January 3-4, 1955, found it adulterated on the basis of the data that the B. R. Index at 400 C was 60.4 and the Belliers test for groundnut oil was positive inasmuch as it gave turbidity at 280 C. Court Witness no. 1, Dulal Chand Dey, who actually analysed the sample sent by the Court, also found it adulterated, on the basis of his obtaining the saponification value to be 175.5, iodine value to be 106.8 and the appearance of turbidity at 270 C. He also found indication of the presence of a small amount of linseed oil. The correctness of his opinion on these data is admitted by Sri Mitra, D. W. 7. In these circumstances, the finding of the Courts below that the mustard oil in the appellants tank wagon was adulterated is correct. It is not established that the sample of mustard oil sent to Sri Mitra by the Deputy Commissioner of the Enforcement Branch contained mustard oil from this tank wagon. The opinion of Sri Mitra about the nature of that sample therefore does not go against the opinion of Sri Sen and Sri Dey that the mustard oil analysed by them was adulterated with groundnutthe evidence on the record we are of opinion that they were in possession of the mustard oil. The consignment of oil was from the manufacturing firm, appellant no. 1, to itself at Calcutta. Its manager, appellant No. 2, took delivery of the wagon from the railway authorities on January 3, 1955. There is no direct evidence to the effect that such delivery was taken prior to Dr. Baguis taking sample of the mustard oil. But the circumstances, in our opinion, conclusively establish that appellant No. 2 had taken delivery of the wagon prior to Dr. Baguis visit and taking samples of oil from the wagon. Appellant No. 2 is not expected to and could not have got the wagon opened for the purpose of taking samples of oil, if he had not taken delivery of the wagon from the railway authorities. The railway authorities themselves would have seen to it that nobody tampers with the contents of the wagon in its charge. Appellant No. 2 must have therefore paid the freight for the wagon prior to Dr. Baguis visit and thus obtained delivery of the wagon. It was, thereafter, that he got control over the wagon and was in a position to take out oil from it or to permit anyone else to take out oil. We therefore hold that the appellants were in possession of the oil in the tank wagon when Dr. Bagui took samples of the oil fromhave considered the various documents which have been referred to in support of the arrangement between the Association and the Deputy Commissioner, Enforcement Branch, but do not find therein anything which would restrain legally the appellants from selling the oil even if it is found to be adulterated. The proceedings of the meeting of the U. P. Oil Millers Association held on June 9, 1954, and attended by the Deputy Commissioner and Assistant Commissioner of the Enforcement Branch show that no such agreement has been arrived at. Even the suggestion of the Deputy Commissioner that all the members of the Association should write to their respective mills that all the quantity of oil which would be imported should at first be passed and then made delivery of, was not fully accepted, the members simply stating that they always and invariably imported pure mustard oil. It was, however, decided that the samples of oil be taken from the next morning, i. e., June 10, 1954. We however find that in November 1954, the U. P. Oil Millers Association wrote to appellant No. 1 that according to the decision of the Deputy Commissioner of Police, Enforcement Branch, every application to draw sample and test it should be accompanied by a certificate signed by the Chemist or the Manager or the Proprietor of the Mills to the effect that the mustard oil in the tank wagon was pure mustard oil free from Argemoni, linseed or any other adulteration, and that in February, 1955, and April 1955, the Deputy Commissioner of Police, Enforcement Branch, had to remind the U.P. Oil Millers Association that it should advise all its members that whenever they indent any mustard oil from outside Bengal, they would see that the railway receipts be accompanied by a clear certificate of examination from the Chemist of the factory who examined the same. Such directions from the Deputy Commissioner of Police, Enforcement Branch, do not appear to have had nay great effect, as the consignment of oil received by the appellants was without any such certificate. Mahendra Kumar Gupta, D. W. 1, Chemist of the appellants mill, deposed however that he had taken the sample of the oil sent in that wagon and found it to be genuine mustard oil, free from any adulteration. Any such certificate about the purity of the mustard oil sent is not proved to have accompanied the railway receipt and to have been shown or made over to Dr. Bagui, or to the Police Officers who had accompanied him at the time. Letter Exhibit R was sent on behalf of appellant No. 1 to the Secretary of the U. P. Oil Millers Association at 10 a.m., on January 3,is obvious in this case itself, how this sort of arrangement has provided an occasion for the coming into existence of the alleged fourth sample of mustard oil from the appellants tank wagon and the non-committal report about its purity. We are therefore of opinion that this letter Exhibit R, or the arrangement which led to such communication does not establish that the mustard oil in the wagon which will be otherwise presumed to be stored for sale by the appellants, was not stored for sale. | 1 | 2,671 | 1,193 | ### Instruction:
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is no direct evidence to the effect that such delivery was taken prior to Dr. Baguis taking sample of the mustard oil. But the circumstances, in our opinion, conclusively establish that appellant No. 2 had taken delivery of the wagon prior to Dr. Baguis visit and taking samples of oil from the wagon. Appellant No. 2 is not expected to and could not have got the wagon opened for the purpose of taking samples of oil, if he had not taken delivery of the wagon from the railway authorities. The railway authorities themselves would have seen to it that nobody tampers with the contents of the wagon in its charge. Appellant No. 2 must have therefore paid the freight for the wagon prior to Dr. Baguis visit and thus obtained delivery of the wagon. It was, thereafter, that he got control over the wagon and was in a position to take out oil from it or to permit anyone else to take out oil. We therefore hold that the appellants were in possession of the oil in the tank wagon when Dr. Bagui took samples of the oil from it.10. The main contention, however, for the appellants is that the presumption that the mustard oil was stored for sale by the appellants, under sub-sec. (4) of S. 462 of the Act, is rebuttable and has been fully rebutted in view of certain arrangements between the U. P. Oil Millers Association and the Deputy Commissioner of Police, Enforcement Branch, and the letter of the appellants to the Secretary of the Association (Exhibit R) on January 3, 1955.We have considered the various documents which have been referred to in support of the arrangement between the Association and the Deputy Commissioner, Enforcement Branch, but do not find therein anything which would restrain legally the appellants from selling the oil even if it is found to be adulterated. The proceedings of the meeting of the U. P. Oil Millers Association held on June 9, 1954, and attended by the Deputy Commissioner and Assistant Commissioner of the Enforcement Branch show that no such agreement has been arrived at. Even the suggestion of the Deputy Commissioner that all the members of the Association should write to their respective mills that all the quantity of oil which would be imported should at first be passed and then made delivery of, was not fully accepted, the members simply stating that they always and invariably imported pure mustard oil. It was, however, decided that the samples of oil be taken from the next morning, i. e., June 10, 1954. We however find that in November 1954, the U. P. Oil Millers Association wrote to appellant No. 1 that according to the decision of the Deputy Commissioner of Police, Enforcement Branch, every application to draw sample and test it should be accompanied by a certificate signed by the Chemist or the Manager or the Proprietor of the Mills to the effect that the mustard oil in the tank wagon was pure mustard oil free from Argemoni, linseed or any other adulteration, and that in February, 1955, and April 1955, the Deputy Commissioner of Police, Enforcement Branch, had to remind the U.P. Oil Millers Association that it should advise all its members that whenever they indent any mustard oil from outside Bengal, they would see that the railway receipts be accompanied by a clear certificate of examination from the Chemist of the factory who examined the same. Such directions from the Deputy Commissioner of Police, Enforcement Branch, do not appear to have had nay great effect, as the consignment of oil received by the appellants was without any such certificate. Mahendra Kumar Gupta, D. W. 1, Chemist of the appellants mill, deposed however that he had taken the sample of the oil sent in that wagon and found it to be genuine mustard oil, free from any adulteration. Any such certificate about the purity of the mustard oil sent is not proved to have accompanied the railway receipt and to have been shown or made over to Dr. Bagui, or to the Police Officers who had accompanied him at the time. Letter Exhibit R was sent on behalf of appellant No. 1 to the Secretary of the U. P. Oil Millers Association at 10 a.m., on January 3, 1955. The letter said :"Please arrange for sample and test through the proper authorities concerned, so that we may take the delivery of oil only if it is found pure on analysis."Any such statement can hardly be sufficient to rebut the presumption that the oil which was consigned by appellant No. 1 to itself at Calcutta was not stored for sale. The letter itself does not say that the oil will not be sold. It simply says that they may take the delivery of the oil only if it is found pure on analysis. What would be done to the oil if it is found to be impure, is not stated. The Association was not in any arrangement with the Corporation which had the sole authority to take action with respect to the adulterated mustard oil. The Enforcement Branch of the Police had nothing to do with it. In the circumstances all the so-called arrangement with the Enforcement Branch of the Police and the consequent letters, similar to letter Exhibit R, seem to be a subtle device to make things difficult for the proper authorities responsible to see that mustard oil fit for sale be pure. It is obvious in this case itself, how this sort of arrangement has provided an occasion for the coming into existence of the alleged fourth sample of mustard oil from the appellants tank wagon and the non-committal report about its purity. We are therefore of opinion that this letter Exhibit R, or the arrangement which led to such communication does not establish that the mustard oil in the wagon which will be otherwise presumed to be stored for sale by the appellants, was not stored for sale.
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of mustard oil by the Chemists. Ashit Ranjan Sen, P. W. 2, Public Analyst, who examined the first sample sent by Dr. Bagui on January 3-4, 1955, found it adulterated on the basis of the data that the B. R. Index at 400 C was 60.4 and the Belliers test for groundnut oil was positive inasmuch as it gave turbidity at 280 C. Court Witness no. 1, Dulal Chand Dey, who actually analysed the sample sent by the Court, also found it adulterated, on the basis of his obtaining the saponification value to be 175.5, iodine value to be 106.8 and the appearance of turbidity at 270 C. He also found indication of the presence of a small amount of linseed oil. The correctness of his opinion on these data is admitted by Sri Mitra, D. W. 7. In these circumstances, the finding of the Courts below that the mustard oil in the appellants tank wagon was adulterated is correct. It is not established that the sample of mustard oil sent to Sri Mitra by the Deputy Commissioner of the Enforcement Branch contained mustard oil from this tank wagon. The opinion of Sri Mitra about the nature of that sample therefore does not go against the opinion of Sri Sen and Sri Dey that the mustard oil analysed by them was adulterated with groundnutthe evidence on the record we are of opinion that they were in possession of the mustard oil. The consignment of oil was from the manufacturing firm, appellant no. 1, to itself at Calcutta. Its manager, appellant No. 2, took delivery of the wagon from the railway authorities on January 3, 1955. There is no direct evidence to the effect that such delivery was taken prior to Dr. Baguis taking sample of the mustard oil. But the circumstances, in our opinion, conclusively establish that appellant No. 2 had taken delivery of the wagon prior to Dr. Baguis visit and taking samples of oil from the wagon. Appellant No. 2 is not expected to and could not have got the wagon opened for the purpose of taking samples of oil, if he had not taken delivery of the wagon from the railway authorities. The railway authorities themselves would have seen to it that nobody tampers with the contents of the wagon in its charge. Appellant No. 2 must have therefore paid the freight for the wagon prior to Dr. Baguis visit and thus obtained delivery of the wagon. It was, thereafter, that he got control over the wagon and was in a position to take out oil from it or to permit anyone else to take out oil. We therefore hold that the appellants were in possession of the oil in the tank wagon when Dr. Bagui took samples of the oil fromhave considered the various documents which have been referred to in support of the arrangement between the Association and the Deputy Commissioner, Enforcement Branch, but do not find therein anything which would restrain legally the appellants from selling the oil even if it is found to be adulterated. The proceedings of the meeting of the U. P. Oil Millers Association held on June 9, 1954, and attended by the Deputy Commissioner and Assistant Commissioner of the Enforcement Branch show that no such agreement has been arrived at. Even the suggestion of the Deputy Commissioner that all the members of the Association should write to their respective mills that all the quantity of oil which would be imported should at first be passed and then made delivery of, was not fully accepted, the members simply stating that they always and invariably imported pure mustard oil. It was, however, decided that the samples of oil be taken from the next morning, i. e., June 10, 1954. We however find that in November 1954, the U. P. Oil Millers Association wrote to appellant No. 1 that according to the decision of the Deputy Commissioner of Police, Enforcement Branch, every application to draw sample and test it should be accompanied by a certificate signed by the Chemist or the Manager or the Proprietor of the Mills to the effect that the mustard oil in the tank wagon was pure mustard oil free from Argemoni, linseed or any other adulteration, and that in February, 1955, and April 1955, the Deputy Commissioner of Police, Enforcement Branch, had to remind the U.P. Oil Millers Association that it should advise all its members that whenever they indent any mustard oil from outside Bengal, they would see that the railway receipts be accompanied by a clear certificate of examination from the Chemist of the factory who examined the same. Such directions from the Deputy Commissioner of Police, Enforcement Branch, do not appear to have had nay great effect, as the consignment of oil received by the appellants was without any such certificate. Mahendra Kumar Gupta, D. W. 1, Chemist of the appellants mill, deposed however that he had taken the sample of the oil sent in that wagon and found it to be genuine mustard oil, free from any adulteration. Any such certificate about the purity of the mustard oil sent is not proved to have accompanied the railway receipt and to have been shown or made over to Dr. Bagui, or to the Police Officers who had accompanied him at the time. Letter Exhibit R was sent on behalf of appellant No. 1 to the Secretary of the U. P. Oil Millers Association at 10 a.m., on January 3,is obvious in this case itself, how this sort of arrangement has provided an occasion for the coming into existence of the alleged fourth sample of mustard oil from the appellants tank wagon and the non-committal report about its purity. We are therefore of opinion that this letter Exhibit R, or the arrangement which led to such communication does not establish that the mustard oil in the wagon which will be otherwise presumed to be stored for sale by the appellants, was not stored for sale.
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Baldota Brothers Vs. Libra Mining Works | been made out for the exercise of this Courts jurisdiction under Art. 136 of the Constitution. There is no question of one division bench sitting in judgment over another; the same Court hears the same matters at different stages, one for the limited purpose of granting special leave, when only the test of prima facie arguable point is applied, and the other for the final disposal when the question raised is considered in the presence of both the parties and when, it is in possession of all the relevant material. We therefore, hold that unless this Court is satisfied that the appeal raises a question that justifies the exercise of its discretionary jurisdiction under Art. 136 of the Constitution, the appeal is liable to be dismissed without further investigation into the merits of the case.4. The learned Solicitor-General then contends that the appeal raises the question of the appellants right to hold the other party to the bargain, and on the basis of that right to obtain an order of injunction with their suit in the Kakinada Court, and restraining the respondents from proceeding by that means to have his suit tried in Bombay, and that question is of sufficient importance to attract the jurisdiction of this Court under Art. 136 of the Constitution. There is an underlying fallacy in this argument. This appeal is not against the final decree in the suit, but only against the interlocutory order in an application for injunction pending the disposal of the suit. The Bombay High Court did not decide, either expressly or by necessary implication, that the Kakinada Court had jurisdiction to decide the suit. That plea was taken in the Kakinada suit and a specific issue was raised thereon, and the said issue falls to be decided on oral and documentary evidence. If the Kakinda Court holds that it has no jurisdiction, that suit will be dismissed. If, on the other hand, it comes to the conclusions that it has jurisdiction and decides the case on merits, it will have done so only on its finding that the suit contract is that entered into between the parties on October 17, 1956, and that the said contract does not contain a clause conferring sole jurisdiction on the Bombay Courts.The decision of the Kakinda Court, or the final decision made by the highest appellate Court against that decree, would not preclude the Bombay Court from proceeding with its suit, though the finding both on the question of jurisdiction and on the merits of the subject-matter which are common to the two suits might operate as res judicata. We cannot, therefore, appreciate the argument that the Bombay Court, by refusing to issue an injunction, has decided on the rights of parties, though, if the contention of the appellants is ultimately upheld by the Kakinada Court, they may be put to some inconvenience. The only point, therefore, that arises in this appeal is a simple one namely, whether the Bombay High Court has rightly exercised its discretion in refusing to issue an injunction against the respondents from proceeding with their Kakinda suit.5. Mody, J. assumed that he had jurisdiction to issue an order of injunction in suitable cases. Whether the power of the Bombay High Court to issue an injunction dehors the provisions of Rr. 1 and 2 O. XXXIX of the Code of Civil Procedure rests on S. 151 of the Code as held by the Bombay High Court in Ram Bahadur Thakur and Co. v. Devidayal (Sales) Ltd., ILR (1954) Bom 334 : (AIR 1954 Bom 176 ), or in exercise of power under its general equity jurisdiction independent of the Code of Civil Procedure as held by the High Courts of Calcutta and Madras in Rash Behary Dev v. Bhowani Churn Bhose, ILR 34 Cal 97 , Mungle Chand v. Gopal Ram, ILR 34 Cal 101 , Govindarajulu Nayudu v. Imperial Bank of India, Vellore, 35 Mad LW 168 : (AIR 1932 Mad 180 ) and Karuppayya v. Ponnusami, ILR 56 Mad 563 : (AIR 1933 Mad 500 (2)), it is not, and cannot be, disputed that the power is a discretionary one vested in a Court to be exercised for the ends of justice, having regard to the circumstances of each case. In the present case, though the learned Judge has not given any reason for his order, the affidavits filed by the parties disclose that a substantial question of fact falls to be decided for sustaining the plea of exclusive jurisdiction of the Bombay High Court, and that the application was filed at a belated stage after the Kakinada suit was ripe for hearing. The appellants may have a good case on merits, on which we do not, and cannot, express any opinion, for the question falls to be decided on evidence, and it may be also that they have good reason to account for the long delay in filing their application. But the learned Judge must have taken into consideration all the relevant circumstances, and, in exercise of his discretion, refused to give an injunction. It is not possible to say that under such circumstances, the question raised in one that attracts the discretionary jurisdiction of this Court. We understand from our brother, Sarkar, J., who was one of the members of the bench which granted leave, that special leave was granted in this case as the order of Mody J., assumed the correctness of the proposition that a chartered High Court can issue an injunction restraining the disposal of a suit filed earlier in another Court in or outside its territorial jurisdiction, notwithstanding the fact that the subsequent suit attracts the provisions of S. 10 of the Code of Civil Procedure and the said point is of sufficient importance. That point does not arise now, as we have held that even on the assumption that the Bombay High Court has jurisdiction to issue an injunction, the order made in exercise of its jurisdiction is purely a discretionary one. | 0[ds]There is therefore no distinction in the scope of the exercise of the power under Art 136 of the Constitution at the stage of application for special leave and at the stage when the appeal is finally disposedtherefore, hold that unless this Court is satisfied that the appeal raises a question that justifies the exercise of its discretionary jurisdiction under Art. 136 of the Constitution, the appeal is liable to be dismissed without further investigation into the merits of theis an underlying fallacy in this argument. This appeal is not against the final decree in the suit, but only against the interlocutory order in an application for injunction pending the disposal of the suit. The Bombay High Court did not decide, either expressly or by necessary implication, that the Kakinada Court had jurisdiction to decide the suit. That plea was taken in the Kakinada suit and a specific issue was raised thereon, and the said issue falls to be decided on oral and documentary evidence. If the Kakinda Court holds that it has no jurisdiction, that suit will be dismissed. If, on the other hand, it comes to the conclusions that it has jurisdiction and decides the case on merits, it will have done so only on its finding that the suit contract is that entered into between the parties on October 17, 1956, and that the said contract does not contain a clause conferring sole jurisdiction on the Bombaycannot, therefore, appreciate the argument that the Bombay Court, by refusing to issue an injunction, has decided on the rights of parties, though, if the contention of the appellants is ultimately upheld by the Kakinada Court, they may be put to somethe present case, though the learned Judge has not given any reason for his order, the affidavits filed by the parties disclose that a substantial question of fact falls to be decided for sustaining the plea of exclusive jurisdiction of the Bombay High Court, and that the application was filed at a belated stage after the Kakinada suit was ripe for hearing. The appellants may have a good case on merits, on which we do not, and cannot, express any opinion, for the question falls to be decided on evidence, and it may be also that they have good reason to account for the long delay in filing their application. But the learned Judge must have taken into consideration all the relevant circumstances, and, in exercise of his discretion, refused to give an injunction. It is not possible to say that under such circumstances, the question raised in one that attracts the discretionary jurisdiction of this Court. We understand from our brother, Sarkar, J., who was one of the members of the bench which granted leave, that special leave was granted in this case as the order of Mody J., assumed the correctness of the proposition that a chartered High Court can issue an injunction restraining the disposal of a suit filed earlier in another Court in or outside its territorial jurisdiction, notwithstanding the fact that the subsequent suit attracts the provisions of S. 10 of the Code of Civil Procedure and the said point is of sufficient importance. That point does not arise now, as we have held that even on the assumption that the Bombay High Court has jurisdiction to issue an injunction, the order made in exercise of its jurisdiction is purely a discretionary one. | 0 | 3,053 | 624 | ### 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:
been made out for the exercise of this Courts jurisdiction under Art. 136 of the Constitution. There is no question of one division bench sitting in judgment over another; the same Court hears the same matters at different stages, one for the limited purpose of granting special leave, when only the test of prima facie arguable point is applied, and the other for the final disposal when the question raised is considered in the presence of both the parties and when, it is in possession of all the relevant material. We therefore, hold that unless this Court is satisfied that the appeal raises a question that justifies the exercise of its discretionary jurisdiction under Art. 136 of the Constitution, the appeal is liable to be dismissed without further investigation into the merits of the case.4. The learned Solicitor-General then contends that the appeal raises the question of the appellants right to hold the other party to the bargain, and on the basis of that right to obtain an order of injunction with their suit in the Kakinada Court, and restraining the respondents from proceeding by that means to have his suit tried in Bombay, and that question is of sufficient importance to attract the jurisdiction of this Court under Art. 136 of the Constitution. There is an underlying fallacy in this argument. This appeal is not against the final decree in the suit, but only against the interlocutory order in an application for injunction pending the disposal of the suit. The Bombay High Court did not decide, either expressly or by necessary implication, that the Kakinada Court had jurisdiction to decide the suit. That plea was taken in the Kakinada suit and a specific issue was raised thereon, and the said issue falls to be decided on oral and documentary evidence. If the Kakinda Court holds that it has no jurisdiction, that suit will be dismissed. If, on the other hand, it comes to the conclusions that it has jurisdiction and decides the case on merits, it will have done so only on its finding that the suit contract is that entered into between the parties on October 17, 1956, and that the said contract does not contain a clause conferring sole jurisdiction on the Bombay Courts.The decision of the Kakinda Court, or the final decision made by the highest appellate Court against that decree, would not preclude the Bombay Court from proceeding with its suit, though the finding both on the question of jurisdiction and on the merits of the subject-matter which are common to the two suits might operate as res judicata. We cannot, therefore, appreciate the argument that the Bombay Court, by refusing to issue an injunction, has decided on the rights of parties, though, if the contention of the appellants is ultimately upheld by the Kakinada Court, they may be put to some inconvenience. The only point, therefore, that arises in this appeal is a simple one namely, whether the Bombay High Court has rightly exercised its discretion in refusing to issue an injunction against the respondents from proceeding with their Kakinda suit.5. Mody, J. assumed that he had jurisdiction to issue an order of injunction in suitable cases. Whether the power of the Bombay High Court to issue an injunction dehors the provisions of Rr. 1 and 2 O. XXXIX of the Code of Civil Procedure rests on S. 151 of the Code as held by the Bombay High Court in Ram Bahadur Thakur and Co. v. Devidayal (Sales) Ltd., ILR (1954) Bom 334 : (AIR 1954 Bom 176 ), or in exercise of power under its general equity jurisdiction independent of the Code of Civil Procedure as held by the High Courts of Calcutta and Madras in Rash Behary Dev v. Bhowani Churn Bhose, ILR 34 Cal 97 , Mungle Chand v. Gopal Ram, ILR 34 Cal 101 , Govindarajulu Nayudu v. Imperial Bank of India, Vellore, 35 Mad LW 168 : (AIR 1932 Mad 180 ) and Karuppayya v. Ponnusami, ILR 56 Mad 563 : (AIR 1933 Mad 500 (2)), it is not, and cannot be, disputed that the power is a discretionary one vested in a Court to be exercised for the ends of justice, having regard to the circumstances of each case. In the present case, though the learned Judge has not given any reason for his order, the affidavits filed by the parties disclose that a substantial question of fact falls to be decided for sustaining the plea of exclusive jurisdiction of the Bombay High Court, and that the application was filed at a belated stage after the Kakinada suit was ripe for hearing. The appellants may have a good case on merits, on which we do not, and cannot, express any opinion, for the question falls to be decided on evidence, and it may be also that they have good reason to account for the long delay in filing their application. But the learned Judge must have taken into consideration all the relevant circumstances, and, in exercise of his discretion, refused to give an injunction. It is not possible to say that under such circumstances, the question raised in one that attracts the discretionary jurisdiction of this Court. We understand from our brother, Sarkar, J., who was one of the members of the bench which granted leave, that special leave was granted in this case as the order of Mody J., assumed the correctness of the proposition that a chartered High Court can issue an injunction restraining the disposal of a suit filed earlier in another Court in or outside its territorial jurisdiction, notwithstanding the fact that the subsequent suit attracts the provisions of S. 10 of the Code of Civil Procedure and the said point is of sufficient importance. That point does not arise now, as we have held that even on the assumption that the Bombay High Court has jurisdiction to issue an injunction, the order made in exercise of its jurisdiction is purely a discretionary one.
### Response:
0
### Explanation:
There is therefore no distinction in the scope of the exercise of the power under Art 136 of the Constitution at the stage of application for special leave and at the stage when the appeal is finally disposedtherefore, hold that unless this Court is satisfied that the appeal raises a question that justifies the exercise of its discretionary jurisdiction under Art. 136 of the Constitution, the appeal is liable to be dismissed without further investigation into the merits of theis an underlying fallacy in this argument. This appeal is not against the final decree in the suit, but only against the interlocutory order in an application for injunction pending the disposal of the suit. The Bombay High Court did not decide, either expressly or by necessary implication, that the Kakinada Court had jurisdiction to decide the suit. That plea was taken in the Kakinada suit and a specific issue was raised thereon, and the said issue falls to be decided on oral and documentary evidence. If the Kakinda Court holds that it has no jurisdiction, that suit will be dismissed. If, on the other hand, it comes to the conclusions that it has jurisdiction and decides the case on merits, it will have done so only on its finding that the suit contract is that entered into between the parties on October 17, 1956, and that the said contract does not contain a clause conferring sole jurisdiction on the Bombaycannot, therefore, appreciate the argument that the Bombay Court, by refusing to issue an injunction, has decided on the rights of parties, though, if the contention of the appellants is ultimately upheld by the Kakinada Court, they may be put to somethe present case, though the learned Judge has not given any reason for his order, the affidavits filed by the parties disclose that a substantial question of fact falls to be decided for sustaining the plea of exclusive jurisdiction of the Bombay High Court, and that the application was filed at a belated stage after the Kakinada suit was ripe for hearing. The appellants may have a good case on merits, on which we do not, and cannot, express any opinion, for the question falls to be decided on evidence, and it may be also that they have good reason to account for the long delay in filing their application. But the learned Judge must have taken into consideration all the relevant circumstances, and, in exercise of his discretion, refused to give an injunction. It is not possible to say that under such circumstances, the question raised in one that attracts the discretionary jurisdiction of this Court. We understand from our brother, Sarkar, J., who was one of the members of the bench which granted leave, that special leave was granted in this case as the order of Mody J., assumed the correctness of the proposition that a chartered High Court can issue an injunction restraining the disposal of a suit filed earlier in another Court in or outside its territorial jurisdiction, notwithstanding the fact that the subsequent suit attracts the provisions of S. 10 of the Code of Civil Procedure and the said point is of sufficient importance. That point does not arise now, as we have held that even on the assumption that the Bombay High Court has jurisdiction to issue an injunction, the order made in exercise of its jurisdiction is purely a discretionary one.
|
DIPALI BISWAS & ORS Vs. NIRMALENDU MUKHERJEE & ORS | had been given to the judgment-debtor by means of an order under Rule 54. 28. Rule 54 of Order XXI prescribes the method of attachment of immovable property. Sub rule (1A) of Rule 54, also inserted by Act 104 of 1976, mandates that the prohibitory order under sub rule(1) shall require the judgment-debtor to attend court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. This is why the first proviso to sub rule (2) of Rule 66 gives a discretion to the court to dispense with a second notice under Order XXI, Rule 66(2). 29. Keeping in mind the above statutory prescriptions, if we come to the facts of the case, it is seen that the appellants have filed as additional document in Annexure A-3, the copy of the extract of relevant orders passed in Money Execution Case No.2 of 1975 by the District Munsif Court, Bongaon. This document reveals that on 10.01.1975, the executing court ordered the issue of notice of attachment under Order XXI, Rule 54 of the Code. It was only thereafter that the court directed on 16.07.1975, the issue of sale proclamation under Order XXI, Rule 66. 30. Thereafter, the judgment-debtor filed a petition under Section 47 of the Code on 02.09.1975 (this was the first petition under Section 47, while the appeal on hand arises out of the second petition under Section 47). 31. The executing court, at the instance of the judgment-debtor also granted stay of further proceedings on 26.09.1975. But it is not clear from Annexure A-3 of the additional documents filed by the appellants, as to when the said petition under Section 47 was disposed of. However it is clear from the order passed on 22.04.1978 that the decree holder was directed to take further steps. 32. Even after directing the publication of the sale proclamation in the newspaper, the executing court was more than fair to the judgment-debtor, as could be seen from the order passed on 16.03.1979. On the said date the executing court found that in the newspaper publication, the case number was wrongly mentioned. Therefore, the court directed the issue of fresh sale proclamation and fresh publication. It is only thereafter that the judgment-debtor moved a petition on 30.05.1979 for postponement of the auction. It was rejected and the court proceeded with the auction. The decree holder himself participated in the auction after getting permission from the court. However, it is only the third parties who succeeded in getting the sale confirmed. 33. The above sequence of events would show that the judgment- debtor had sufficient opportunity to object to the inclusion of the entire property when an order was passed under Order XXI, Rule 54. Subsequently he had an opportunity to object to the inclusion of the whole of the property, by taking advantage of the amended clause (a) of sub rule (2) of Rule 66 of Order XXI, which speaks about a part of the property that would be sufficient to satisfy the decree. But the judgment-debtor despite filing a petition under Section 47 on 02.09.1975, did not point out how the property being a vacant land of an extent of 17 decimals could have been divided. It must be pointed out at the cost of repetition that the notice of attachment under Order XXI, Rule 54 was ordered on 10.01.1975 and the sale proclamation under Order XXI, Rule 66 was directed to be issued on 16.07.1975. It is only thereafter that the first petition under Section 47 was filed on 02.09.1975. Therefore, the appellants cannot compare themselves to the judgment-debtors in T.P. Subba Reddi or Ambati Narasayya (supra). 34. As we have pointed out elsewhere, the objection relating to Order XXI, Rule 64 has been raised by the appellants for the first time in the 5th round of litigation in execution. In the 1st round, the appellants exhausted the gun-powder available under Order XXI, Rule 90, by taking recourse to a compromise with the auction purchasers, after alleging material irregularity in the conduct of the auction. The 1st round which commenced in 1979 came to an end in 1992 with the dismissal of SLP(C) No.18092 of 1991. In the order of the High Court dated 20.12.1990 that was under challenge in the said SLP, the High Court made it clear that none of the parties shall have any claim whatsoever as against the auction purchaser in respect of the purchased property (we have extracted this in Para 10 above). 35. The 2nd round was kick-started with a suit in Suit No.249 of 1992 for a declaration that the auction sale was void. This is despite the express bar of a separate suit, under Section 47(1) of the Code. But the 2nd round got aborted with the dismissal of the suit due to abatement. 36. The 3rd round started with objections to the issue of sale certificate and it came to an end in the year 2001. The 4th round commenced when the auction purchasers moved the executing court for delivery of possession. Delivery was ordered by the executing court on 15.03.2002. This round came to a close with the dismissal of a SLP in the year 2005 and a review petition in the year 2006, arising out of the dismissal of a revision petition challenging the order of the executing court for delivery of possession. It is only thereafter that the 5th round of litigation was started by the appellants by filing a petition under Section 47 and raising the bogey of jurisdictional error on account of non-compliance with the mandate of Order XXI, Rule 64. In other words, the appellants have now exhausted almost all provisions available to a judgment-debtor to stall execution and the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to execution. Conclusion | 1[ds]19. The only mantra, by the recitation of which, the appellants hope to succeed in this half-a-century old litigation, is Order XXI, Rule 64 of the Code. This provision enables an executing court to order that any property attached by it and liable to sale or such portion thereof as may seem necessary to satisfy the decree, shall be sold and that the proceeds of such sale or a sufficient portion thereof shall be paid to the party entitled under the decree to receive the same.In Takkaseela Pedda Subba Reddi vs. Pujari Padmavathamma & Ors (1977) 3 SCC 337, this Court held that the, executing court derives jurisdiction to sell properties attached, only to the point at which the decree is fully satisfied, and that the words, necessary to satisfy the decree, clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. This Court went further to hold that the issue flowing out of Order XXI, Rule 64 goes to the very root of the jurisdiction of the executing court and that therefore the fact that an objection in this regard was not raised before the executing court is not sufficient to put him out of court.21. But the aforesaid decision arose out of a case where the decretal amount for which the properties were to be sold was mentioned in the warrant of sale and sale proclamation as Rs.16,715/-. The lands in two villages namely Devanoor and Gudipadu were brought to sale. The sale of lands in one village alone fetched Rs.16,880/-. Yet the executing court proceeded to sell the lands in Gudipadu also. It is in that context that this Court held as aforesaid.22. The decision in Ambati Narasayya vs M. Subha Rao & Anr (1989) Supp. 2 SCC 693, while following T.P. Subba Reddi (supra), went a step further and held that if the property is large and the decree to be satisfied is small, the court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the decree debt and that it is immaterial whether the property is one or several.23. But the decision in Ambati Narasayya (supra) also arose out of a particular context. The land that was sold in Ambati Narasayya (supra) was of the extent of 10 acres and it was sold for Rs.17,000/- for the satisfaction of a claim of Rs.2400/-. The land of the extent of 10 acres is certainly large enough and is capable of division. But in the case on hand, the extent of land is only 17 decimals, working out to (7450 Sq.ft.).29. Keeping in mind the above statutory prescriptions, if we come to the facts of the case, it is seen that the appellants have filed as additional document in Annexure A-3, the copy of the extract of relevant orders passed in Money Execution Case No.2 of 1975 by the District Munsif Court, Bongaon. This document reveals that on 10.01.1975, the executing court ordered the issue of notice of attachment under Order XXI, Rule 54 of the Code. It was only thereafter that the court directed on 16.07.1975, the issue of sale proclamation under Order XXI, Rule 66.33. The above sequence of events would show that the judgment- debtor had sufficient opportunity to object to the inclusion of the entire property when an order was passed under Order XXI, Rule 54. Subsequently he had an opportunity to object to the inclusion of the whole of the property, by taking advantage of the amended clause (a) of sub rule (2) of Rule 66 of Order XXI, which speaks about a part of the property that would be sufficient to satisfy the decree. But the judgment-debtor despite filing a petition under Section 47 on 02.09.1975, did not point out how the property being a vacant land of an extent of 17 decimals could have been divided. It must be pointed out at the cost of repetition that the notice of attachment under Order XXI, Rule 54 was ordered on 10.01.1975 and the sale proclamation under Order XXI, Rule 66 was directed to be issued on 16.07.1975. It is only thereafter that the first petition under Section 47 was filed on 02.09.1975. Therefore, the appellants cannot compare themselves to the judgment-debtors in T.P. Subba Reddi or Ambati Narasayya (supra).34. As we have pointed out elsewhere, the objection relating to Order XXI, Rule 64 has been raised by the appellants for the first time in the 5th round of litigation in execution. In the 1st round, the appellants exhausted the gun-powder available under Order XXI, Rule 90, by taking recourse to a compromise with the auction purchasers, after alleging material irregularity in the conduct of the auction. The 1st round which commenced in 1979 came to an end in 1992 with the dismissal of SLP(C) No.18092 of 1991. In the order of the High Court dated 20.12.1990 that was under challenge in the said SLP, the High Court made it clear that none of the parties shall have any claim whatsoever as against the auction purchaser in respect of the purchased property (we have extracted this in Para 10 above).35. The 2nd round was kick-started with a suit in Suit No.249 of 1992 for a declaration that the auction sale was void. This is despite the express bar of a separate suit, under Section 47(1) of the Code. But the 2nd round got aborted with the dismissal of the suit due to abatement.36. The 3rd round started with objections to the issue of sale certificate and it came to an end in the year 2001. The 4th round commenced when the auction purchasers moved the executing court for delivery of possession. Delivery was ordered by the executing court on 15.03.2002. This round came to a close with the dismissal of a SLP in the year 2005 and a review petition in the year 2006, arising out of the dismissal of a revision petition challenging the order of the executing court for delivery of possession. It is only thereafter that the 5th round of litigation was started by the appellants by filing a petition under Section 47 and raising the bogey of jurisdictional error on account of non-compliance with the mandate of Order XXI, Rule 64. In other words, the appellants have now exhausted almost all provisions available to a judgment-debtor to stall execution and the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to execution. | 1 | 4,345 | 1,219 | ### 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:
had been given to the judgment-debtor by means of an order under Rule 54. 28. Rule 54 of Order XXI prescribes the method of attachment of immovable property. Sub rule (1A) of Rule 54, also inserted by Act 104 of 1976, mandates that the prohibitory order under sub rule(1) shall require the judgment-debtor to attend court on a specified date to take notice of the date to be fixed for settling the terms of the proclamation of sale. This is why the first proviso to sub rule (2) of Rule 66 gives a discretion to the court to dispense with a second notice under Order XXI, Rule 66(2). 29. Keeping in mind the above statutory prescriptions, if we come to the facts of the case, it is seen that the appellants have filed as additional document in Annexure A-3, the copy of the extract of relevant orders passed in Money Execution Case No.2 of 1975 by the District Munsif Court, Bongaon. This document reveals that on 10.01.1975, the executing court ordered the issue of notice of attachment under Order XXI, Rule 54 of the Code. It was only thereafter that the court directed on 16.07.1975, the issue of sale proclamation under Order XXI, Rule 66. 30. Thereafter, the judgment-debtor filed a petition under Section 47 of the Code on 02.09.1975 (this was the first petition under Section 47, while the appeal on hand arises out of the second petition under Section 47). 31. The executing court, at the instance of the judgment-debtor also granted stay of further proceedings on 26.09.1975. But it is not clear from Annexure A-3 of the additional documents filed by the appellants, as to when the said petition under Section 47 was disposed of. However it is clear from the order passed on 22.04.1978 that the decree holder was directed to take further steps. 32. Even after directing the publication of the sale proclamation in the newspaper, the executing court was more than fair to the judgment-debtor, as could be seen from the order passed on 16.03.1979. On the said date the executing court found that in the newspaper publication, the case number was wrongly mentioned. Therefore, the court directed the issue of fresh sale proclamation and fresh publication. It is only thereafter that the judgment-debtor moved a petition on 30.05.1979 for postponement of the auction. It was rejected and the court proceeded with the auction. The decree holder himself participated in the auction after getting permission from the court. However, it is only the third parties who succeeded in getting the sale confirmed. 33. The above sequence of events would show that the judgment- debtor had sufficient opportunity to object to the inclusion of the entire property when an order was passed under Order XXI, Rule 54. Subsequently he had an opportunity to object to the inclusion of the whole of the property, by taking advantage of the amended clause (a) of sub rule (2) of Rule 66 of Order XXI, which speaks about a part of the property that would be sufficient to satisfy the decree. But the judgment-debtor despite filing a petition under Section 47 on 02.09.1975, did not point out how the property being a vacant land of an extent of 17 decimals could have been divided. It must be pointed out at the cost of repetition that the notice of attachment under Order XXI, Rule 54 was ordered on 10.01.1975 and the sale proclamation under Order XXI, Rule 66 was directed to be issued on 16.07.1975. It is only thereafter that the first petition under Section 47 was filed on 02.09.1975. Therefore, the appellants cannot compare themselves to the judgment-debtors in T.P. Subba Reddi or Ambati Narasayya (supra). 34. As we have pointed out elsewhere, the objection relating to Order XXI, Rule 64 has been raised by the appellants for the first time in the 5th round of litigation in execution. In the 1st round, the appellants exhausted the gun-powder available under Order XXI, Rule 90, by taking recourse to a compromise with the auction purchasers, after alleging material irregularity in the conduct of the auction. The 1st round which commenced in 1979 came to an end in 1992 with the dismissal of SLP(C) No.18092 of 1991. In the order of the High Court dated 20.12.1990 that was under challenge in the said SLP, the High Court made it clear that none of the parties shall have any claim whatsoever as against the auction purchaser in respect of the purchased property (we have extracted this in Para 10 above). 35. The 2nd round was kick-started with a suit in Suit No.249 of 1992 for a declaration that the auction sale was void. This is despite the express bar of a separate suit, under Section 47(1) of the Code. But the 2nd round got aborted with the dismissal of the suit due to abatement. 36. The 3rd round started with objections to the issue of sale certificate and it came to an end in the year 2001. The 4th round commenced when the auction purchasers moved the executing court for delivery of possession. Delivery was ordered by the executing court on 15.03.2002. This round came to a close with the dismissal of a SLP in the year 2005 and a review petition in the year 2006, arising out of the dismissal of a revision petition challenging the order of the executing court for delivery of possession. It is only thereafter that the 5th round of litigation was started by the appellants by filing a petition under Section 47 and raising the bogey of jurisdictional error on account of non-compliance with the mandate of Order XXI, Rule 64. In other words, the appellants have now exhausted almost all provisions available to a judgment-debtor to stall execution and the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to execution. Conclusion
### Response:
1
### Explanation:
the, executing court derives jurisdiction to sell properties attached, only to the point at which the decree is fully satisfied, and that the words, necessary to satisfy the decree, clearly indicate that no sale can be allowed beyond the decretal amount mentioned in the sale proclamation. This Court went further to hold that the issue flowing out of Order XXI, Rule 64 goes to the very root of the jurisdiction of the executing court and that therefore the fact that an objection in this regard was not raised before the executing court is not sufficient to put him out of court.21. But the aforesaid decision arose out of a case where the decretal amount for which the properties were to be sold was mentioned in the warrant of sale and sale proclamation as Rs.16,715/-. The lands in two villages namely Devanoor and Gudipadu were brought to sale. The sale of lands in one village alone fetched Rs.16,880/-. Yet the executing court proceeded to sell the lands in Gudipadu also. It is in that context that this Court held as aforesaid.22. The decision in Ambati Narasayya vs M. Subha Rao & Anr (1989) Supp. 2 SCC 693, while following T.P. Subba Reddi (supra), went a step further and held that if the property is large and the decree to be satisfied is small, the court must bring only such portion of the property, the proceeds of which would be sufficient to satisfy the decree debt and that it is immaterial whether the property is one or several.23. But the decision in Ambati Narasayya (supra) also arose out of a particular context. The land that was sold in Ambati Narasayya (supra) was of the extent of 10 acres and it was sold for Rs.17,000/- for the satisfaction of a claim of Rs.2400/-. The land of the extent of 10 acres is certainly large enough and is capable of division. But in the case on hand, the extent of land is only 17 decimals, working out to (7450 Sq.ft.).29. Keeping in mind the above statutory prescriptions, if we come to the facts of the case, it is seen that the appellants have filed as additional document in Annexure A-3, the copy of the extract of relevant orders passed in Money Execution Case No.2 of 1975 by the District Munsif Court, Bongaon. This document reveals that on 10.01.1975, the executing court ordered the issue of notice of attachment under Order XXI, Rule 54 of the Code. It was only thereafter that the court directed on 16.07.1975, the issue of sale proclamation under Order XXI, Rule 66.33. The above sequence of events would show that the judgment- debtor had sufficient opportunity to object to the inclusion of the entire property when an order was passed under Order XXI, Rule 54. Subsequently he had an opportunity to object to the inclusion of the whole of the property, by taking advantage of the amended clause (a) of sub rule (2) of Rule 66 of Order XXI, which speaks about a part of the property that would be sufficient to satisfy the decree. But the judgment-debtor despite filing a petition under Section 47 on 02.09.1975, did not point out how the property being a vacant land of an extent of 17 decimals could have been divided. It must be pointed out at the cost of repetition that the notice of attachment under Order XXI, Rule 54 was ordered on 10.01.1975 and the sale proclamation under Order XXI, Rule 66 was directed to be issued on 16.07.1975. It is only thereafter that the first petition under Section 47 was filed on 02.09.1975. Therefore, the appellants cannot compare themselves to the judgment-debtors in T.P. Subba Reddi or Ambati Narasayya (supra).34. As we have pointed out elsewhere, the objection relating to Order XXI, Rule 64 has been raised by the appellants for the first time in the 5th round of litigation in execution. In the 1st round, the appellants exhausted the gun-powder available under Order XXI, Rule 90, by taking recourse to a compromise with the auction purchasers, after alleging material irregularity in the conduct of the auction. The 1st round which commenced in 1979 came to an end in 1992 with the dismissal of SLP(C) No.18092 of 1991. In the order of the High Court dated 20.12.1990 that was under challenge in the said SLP, the High Court made it clear that none of the parties shall have any claim whatsoever as against the auction purchaser in respect of the purchased property (we have extracted this in Para 10 above).35. The 2nd round was kick-started with a suit in Suit No.249 of 1992 for a declaration that the auction sale was void. This is despite the express bar of a separate suit, under Section 47(1) of the Code. But the 2nd round got aborted with the dismissal of the suit due to abatement.36. The 3rd round started with objections to the issue of sale certificate and it came to an end in the year 2001. The 4th round commenced when the auction purchasers moved the executing court for delivery of possession. Delivery was ordered by the executing court on 15.03.2002. This round came to a close with the dismissal of a SLP in the year 2005 and a review petition in the year 2006, arising out of the dismissal of a revision petition challenging the order of the executing court for delivery of possession. It is only thereafter that the 5th round of litigation was started by the appellants by filing a petition under Section 47 and raising the bogey of jurisdictional error on account of non-compliance with the mandate of Order XXI, Rule 64. In other words, the appellants have now exhausted almost all provisions available to a judgment-debtor to stall execution and the case on hand is fit to be included in the syllabus of a law school as a study material for students to get equipped with the various provisions of the Code relating to execution.
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SATPAL SINGH Vs. STATE OF HARYANA | Mrs. R. Banumathi, J. - Leave granted. 2. The appellant has been convicted under Section 304-A I.P.C. and sentenced to undergo rigorous imprisonment for two years. The appellant was also convicted for the offence punishable under Section 279 I.P.C. and sentenced to undergo six months imprisonment. 3. The case in the nutshell is as follows. The deceased child-Ashish aged about four years was going along the barat party and while crossing the road he got stuck in the rear wheel of the bus driven by the accused-appellant. The notice in this matter was issued limited to the quantum of sentence. 4. We have heard learned counsel for the appellant and also learned counsel appearing for the respondent-State. 5. The appellant is said to have already undergone imprisonment of six months and two days. It is stated that the appellant who is around 65 years old and suffering from agerelated ailment and is the only person to support his family. | 1[ds]5. The appellant is said to have already undergone imprisonment of six months and two days. It is stated that the appellant who is around 65 years old and suffering from agerelated ailment and is the only person to support his family. | 1 | 176 | 49 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
Mrs. R. Banumathi, J. - Leave granted. 2. The appellant has been convicted under Section 304-A I.P.C. and sentenced to undergo rigorous imprisonment for two years. The appellant was also convicted for the offence punishable under Section 279 I.P.C. and sentenced to undergo six months imprisonment. 3. The case in the nutshell is as follows. The deceased child-Ashish aged about four years was going along the barat party and while crossing the road he got stuck in the rear wheel of the bus driven by the accused-appellant. The notice in this matter was issued limited to the quantum of sentence. 4. We have heard learned counsel for the appellant and also learned counsel appearing for the respondent-State. 5. The appellant is said to have already undergone imprisonment of six months and two days. It is stated that the appellant who is around 65 years old and suffering from agerelated ailment and is the only person to support his family.
### Response:
1
### Explanation:
5. The appellant is said to have already undergone imprisonment of six months and two days. It is stated that the appellant who is around 65 years old and suffering from agerelated ailment and is the only person to support his family.
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State Of Assam & Anr Vs. D.C. Choudhuri & Ors | an end and as no return had been furnished and as the authorities wished to proceed under Section 22 (2) they should not do so without a notice under Section 34".8. The above view was approved by this Court in Commr. of Income-tax, Bombay v. Ranchhoddas Karsondas, Bombay, (1960) 1 SCR 114 = (AIR 1959 SC 1154 ), but the portion which has been extracted does not support the contention which has been pressed on behalf of the appellant. Indeed it has been relied upon more firmly by the counsel for the respondents. If this view is accepted to be correct it follows that a notice under Section 30 of the Act, in the present case, would be necessary if at the end of the assessment year no return has been made by the assessee and the authorities wish to proceed under Section 19 (2). The case would be entirely different where he himself chooses voluntarily to make a return. This he can do after the publication of a general notice under Section 19 (1) of the Act. If the return is filed no question arises of any income having escaped assessment. The return under the provisions of Section 19 (3) of the Act can be furnished at any time before the assessment is made. This is what this Court held in State of Assam v.Deva Prasad Barua, Civil Appeals Nos. 808 and 809 of 1967, D/- 14-8-1968 = (reported in AIR 1969 SC 831 ).9. The position is altogether different if no return has been made by the assessee and where income has not been assessed at all because for one reason or the other no assessment proceedings were initiated. That would be a case of "escaped assessment" within Section 30 of the Act. The matter was examined at length by this Court in Ghanshyam Das v. Regional Asst. Commr. of Sales Tax, Nagpur, (1964) 4 SCR 436 = (AIR 1964 SC 766 ) with reference to the provisions of the Central Provinces and Berar Sales Tax Act, 1947. The following principles were laid down in that case which are noteworthy :(1) In the case of a registered dealer the proceedings before the Commissioner started factually when a return was made or when a notice was issued to him either under Section 10 (3) (under which the Commissioner has to issue a notice if no return is submitted) or under Section 11 (4) (which provides for the best judgment assessment) of the Sales Tax Act. The statutory obligation to file a return did not initiate the proceedings.(2) Once a statutory return was filed pursuant to a notice under S. 10 (3) or Section 11 of the Sales Tax Act the proceedings did not come to an end until the final assessment was made.(3) The expression "escaped assessment" in Section 11-A of the Sales Tax Act included that of a turnover which had not been assessed at all because for one reason or the other no assessment proceedings were initiated and no assessment was made in respect thereof.10.Keeping in view the above principles it must be held that in the absence of a return having been filed by the assessees in the present case pursuant to a general notice under Section 19 (1) of the Act assessment could be made only after due notice under Section 19 (2) or by initiating proceedings under Section 30 of the Act. Section 19 (2) requires that an individual notice is to be served in the financial year. If no notice is served under that section proceedings under Section 30 can be initiated by a notice in accordance with that section within three years of the end of that financial year.In this connection it may also be remembered that Section 43 (2) (a) of the Act confers a valuable right on the assessee in the matter of choosing the forum for the assessment. According to that provision an assessee may on receipt of the first notice served on him under Section 19 (2) apply to the Agricultural Income-tax Officer by whom such notice is served, to be assessed at the usual place of residence or at the place where the accounts relating to his agricultural income are kept. The Agricultural Income-tax Officer can then make an order that the assessee shall be assessed at the place specified in the application or he has to refer the matter to the Assistant Commissioner of Agricultural Income-tax whose decision shall be final. No such right is conferred on the assessee with reference to publication of a general notice under Section 19 (1). It shows, therefore, that the proceedings for assessment under the Act can be initiated only by service of a notice under Section 19 (2) or by having resort to the provisions of Section 30 of the Act.11. Counsel for the appellant has sought to make a distinction between the decision given under the provisions of the Income-tax Act by pointing out that under Section 20 (4) of the Act best judgment assessment can be made on the failure to make a return under sub-section (1) or sub-section (2) of Section 19 whereas under S. 23 (4) of the Income-tax Act such an assessment can be made only where any person fails to make the return required by any notice given under sub-section (2) of Section 22 which is equivalent to Section 19 (2) of the Act. This distinction is hardly material when the principles which have been laid down by this Court are kept in view. In support of his contention counsel for the appellant has also called attention to a decision of the Privy Council in Gokuldas Ratanji Mandavia v. Commr. of Income-tax, (1960) 38 ITR 224 (PC) in which the provisions of the East African Income Tax (Management) Act, 1952, came up for consideration. Those provisions are altogether different and the decision rested on the wording of S. 71 of that enactment. It cannot, therefore, be of any assistance in the present case. | 0[ds]Thus sub-sections (1), (2) and (3) of S. 19 of the Act are identical with and correspond to sub-sections (1), (2) and (3) of Section 22 of the Income-tax Act.7. Under Section 20 of the Act if the Agricultural Income-tax Officer is satisfied that a return made under Section 19 is correct and complete he has to assess total agricultural income of the assessee according to it. If he has reason to believe that such a return is incorrect or incomplete he has to serve a notice requiring the person who has made the return to produce any evidence on which he may rely in support of the return. After hearing such evidence as the person making the return may produce and such other evidence as the officer may require on specified points the assessment order is to be made.The position is altogether different if no return has been made by the assessee and where income has not been assessed at all because for one reason or the other no assessment proceedings were initiated. That would be a case of "escaped assessment" within Section 30 of the Act. The matter was examined at length by this Court in Ghanshyam Das v. Regional Asst. Commr. of Sales Tax, Nagpur, (1964) 4 SCR 436 = (AIR 1964 SC 766 ) with reference to the provisions of the Central Provinces and Berar Sales Tax Act, 1947. The following principles were laid down in that case which are noteworthyIn the case of a registered dealer the proceedings before the Commissioner started factually when a return was made or when a notice was issued to him either under Section 10 (3) (under which the Commissioner has to issue a notice if no return is submitted) or under Section 11 (4) (which provides for the best judgment assessment) of the Sales Tax Act. The statutory obligation to file a return did not initiate the proceedings.(2) Once a statutory return was filed pursuant to a notice under S. 10 (3) or Section 11 of the Sales Tax Act the proceedings did not come to an end until the final assessment was made.(3) The expression "escaped assessment" in Section 11-A of the Sales Tax Act included that of a turnover which had not been assessed at all because for one reason or the other no assessment proceedings were initiated and no assessment was made in respectin view the above principles it must be held that in the absence of a return having been filed by the assessees in the present case pursuant to a general notice under Section 19 (1) of the Act assessment could be made only after due notice under Section 19 (2) or by initiating proceedings under Section 30 of the Act. Section 19 (2) requires that an individual notice is to be served in the financial year. If no notice is served under that section proceedings under Section 30 can be initiated by a notice in accordance with that section within three years of the end of that financial year.In this connection it may also be remembered that Section 43 (2) (a) of the Act confers a valuable right on the assessee in the matter of choosing the forum for the assessment. According to that provision an assessee may on receipt of the first notice served on him under Section 19 (2) apply to the Agricultural Income-tax Officer by whom such notice is served, to be assessed at the usual place of residence or at the place where the accounts relating to his agricultural income are kept. The Agricultural Income-tax Officer can then make an order that the assessee shall be assessed at the place specified in the application or he has to refer the matter to the Assistant Commissioner of Agricultural Income-tax whose decision shall be final. No such right is conferred on the assessee with reference to publication of a general notice under Section 19 (1). It shows, therefore, that the proceedings for assessment under the Act can be initiated only by service of a notice under Sectiondistinction is hardly material when the principles which have been laid down by this Court are kept in view. In support of his contention counsel for the appellant has also called attention to a decision of the Privy Council in Gokuldas Ratanji Mandavia v. Commr. of Income-tax, (1960) 38 ITR 224 (PC) in which the provisions of the East African Income Tax (Management) Act, 1952, came up for consideration. Those provisions are altogether different and the decision rested on the wording of S. 71 of that enactment. It cannot, therefore, be of any assistance in the present case. | 0 | 3,752 | 868 | ### 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:
an end and as no return had been furnished and as the authorities wished to proceed under Section 22 (2) they should not do so without a notice under Section 34".8. The above view was approved by this Court in Commr. of Income-tax, Bombay v. Ranchhoddas Karsondas, Bombay, (1960) 1 SCR 114 = (AIR 1959 SC 1154 ), but the portion which has been extracted does not support the contention which has been pressed on behalf of the appellant. Indeed it has been relied upon more firmly by the counsel for the respondents. If this view is accepted to be correct it follows that a notice under Section 30 of the Act, in the present case, would be necessary if at the end of the assessment year no return has been made by the assessee and the authorities wish to proceed under Section 19 (2). The case would be entirely different where he himself chooses voluntarily to make a return. This he can do after the publication of a general notice under Section 19 (1) of the Act. If the return is filed no question arises of any income having escaped assessment. The return under the provisions of Section 19 (3) of the Act can be furnished at any time before the assessment is made. This is what this Court held in State of Assam v.Deva Prasad Barua, Civil Appeals Nos. 808 and 809 of 1967, D/- 14-8-1968 = (reported in AIR 1969 SC 831 ).9. The position is altogether different if no return has been made by the assessee and where income has not been assessed at all because for one reason or the other no assessment proceedings were initiated. That would be a case of "escaped assessment" within Section 30 of the Act. The matter was examined at length by this Court in Ghanshyam Das v. Regional Asst. Commr. of Sales Tax, Nagpur, (1964) 4 SCR 436 = (AIR 1964 SC 766 ) with reference to the provisions of the Central Provinces and Berar Sales Tax Act, 1947. The following principles were laid down in that case which are noteworthy :(1) In the case of a registered dealer the proceedings before the Commissioner started factually when a return was made or when a notice was issued to him either under Section 10 (3) (under which the Commissioner has to issue a notice if no return is submitted) or under Section 11 (4) (which provides for the best judgment assessment) of the Sales Tax Act. The statutory obligation to file a return did not initiate the proceedings.(2) Once a statutory return was filed pursuant to a notice under S. 10 (3) or Section 11 of the Sales Tax Act the proceedings did not come to an end until the final assessment was made.(3) The expression "escaped assessment" in Section 11-A of the Sales Tax Act included that of a turnover which had not been assessed at all because for one reason or the other no assessment proceedings were initiated and no assessment was made in respect thereof.10.Keeping in view the above principles it must be held that in the absence of a return having been filed by the assessees in the present case pursuant to a general notice under Section 19 (1) of the Act assessment could be made only after due notice under Section 19 (2) or by initiating proceedings under Section 30 of the Act. Section 19 (2) requires that an individual notice is to be served in the financial year. If no notice is served under that section proceedings under Section 30 can be initiated by a notice in accordance with that section within three years of the end of that financial year.In this connection it may also be remembered that Section 43 (2) (a) of the Act confers a valuable right on the assessee in the matter of choosing the forum for the assessment. According to that provision an assessee may on receipt of the first notice served on him under Section 19 (2) apply to the Agricultural Income-tax Officer by whom such notice is served, to be assessed at the usual place of residence or at the place where the accounts relating to his agricultural income are kept. The Agricultural Income-tax Officer can then make an order that the assessee shall be assessed at the place specified in the application or he has to refer the matter to the Assistant Commissioner of Agricultural Income-tax whose decision shall be final. No such right is conferred on the assessee with reference to publication of a general notice under Section 19 (1). It shows, therefore, that the proceedings for assessment under the Act can be initiated only by service of a notice under Section 19 (2) or by having resort to the provisions of Section 30 of the Act.11. Counsel for the appellant has sought to make a distinction between the decision given under the provisions of the Income-tax Act by pointing out that under Section 20 (4) of the Act best judgment assessment can be made on the failure to make a return under sub-section (1) or sub-section (2) of Section 19 whereas under S. 23 (4) of the Income-tax Act such an assessment can be made only where any person fails to make the return required by any notice given under sub-section (2) of Section 22 which is equivalent to Section 19 (2) of the Act. This distinction is hardly material when the principles which have been laid down by this Court are kept in view. In support of his contention counsel for the appellant has also called attention to a decision of the Privy Council in Gokuldas Ratanji Mandavia v. Commr. of Income-tax, (1960) 38 ITR 224 (PC) in which the provisions of the East African Income Tax (Management) Act, 1952, came up for consideration. Those provisions are altogether different and the decision rested on the wording of S. 71 of that enactment. It cannot, therefore, be of any assistance in the present case.
### Response:
0
### Explanation:
Thus sub-sections (1), (2) and (3) of S. 19 of the Act are identical with and correspond to sub-sections (1), (2) and (3) of Section 22 of the Income-tax Act.7. Under Section 20 of the Act if the Agricultural Income-tax Officer is satisfied that a return made under Section 19 is correct and complete he has to assess total agricultural income of the assessee according to it. If he has reason to believe that such a return is incorrect or incomplete he has to serve a notice requiring the person who has made the return to produce any evidence on which he may rely in support of the return. After hearing such evidence as the person making the return may produce and such other evidence as the officer may require on specified points the assessment order is to be made.The position is altogether different if no return has been made by the assessee and where income has not been assessed at all because for one reason or the other no assessment proceedings were initiated. That would be a case of "escaped assessment" within Section 30 of the Act. The matter was examined at length by this Court in Ghanshyam Das v. Regional Asst. Commr. of Sales Tax, Nagpur, (1964) 4 SCR 436 = (AIR 1964 SC 766 ) with reference to the provisions of the Central Provinces and Berar Sales Tax Act, 1947. The following principles were laid down in that case which are noteworthyIn the case of a registered dealer the proceedings before the Commissioner started factually when a return was made or when a notice was issued to him either under Section 10 (3) (under which the Commissioner has to issue a notice if no return is submitted) or under Section 11 (4) (which provides for the best judgment assessment) of the Sales Tax Act. The statutory obligation to file a return did not initiate the proceedings.(2) Once a statutory return was filed pursuant to a notice under S. 10 (3) or Section 11 of the Sales Tax Act the proceedings did not come to an end until the final assessment was made.(3) The expression "escaped assessment" in Section 11-A of the Sales Tax Act included that of a turnover which had not been assessed at all because for one reason or the other no assessment proceedings were initiated and no assessment was made in respectin view the above principles it must be held that in the absence of a return having been filed by the assessees in the present case pursuant to a general notice under Section 19 (1) of the Act assessment could be made only after due notice under Section 19 (2) or by initiating proceedings under Section 30 of the Act. Section 19 (2) requires that an individual notice is to be served in the financial year. If no notice is served under that section proceedings under Section 30 can be initiated by a notice in accordance with that section within three years of the end of that financial year.In this connection it may also be remembered that Section 43 (2) (a) of the Act confers a valuable right on the assessee in the matter of choosing the forum for the assessment. According to that provision an assessee may on receipt of the first notice served on him under Section 19 (2) apply to the Agricultural Income-tax Officer by whom such notice is served, to be assessed at the usual place of residence or at the place where the accounts relating to his agricultural income are kept. The Agricultural Income-tax Officer can then make an order that the assessee shall be assessed at the place specified in the application or he has to refer the matter to the Assistant Commissioner of Agricultural Income-tax whose decision shall be final. No such right is conferred on the assessee with reference to publication of a general notice under Section 19 (1). It shows, therefore, that the proceedings for assessment under the Act can be initiated only by service of a notice under Sectiondistinction is hardly material when the principles which have been laid down by this Court are kept in view. In support of his contention counsel for the appellant has also called attention to a decision of the Privy Council in Gokuldas Ratanji Mandavia v. Commr. of Income-tax, (1960) 38 ITR 224 (PC) in which the provisions of the East African Income Tax (Management) Act, 1952, came up for consideration. Those provisions are altogether different and the decision rested on the wording of S. 71 of that enactment. It cannot, therefore, be of any assistance in the present case.
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Modern Transportation Consultation Services Pvt. Ltd. and Ors Vs. Central Provident Fund Commissioner, Employees Provident Fund Organisation and Ors | on retirement from service after attaining the age of 55 years. 14.2. On the plain interpretation aforesaid, we have not an iota of doubt that the retired Railway employees, who had withdrawn their accumulations in General Provident Fund or any other Fund of which they were members, could not have been treated as excluded employees for the purpose of the Scheme of 1952 for the reason that such a withdrawal had not been from the Fund established under the Scheme of 1952. In fact, there was no occasion for them to make any withdrawal from the Fund established under the Scheme of 1952 because they were never the members of the said Fund. In other words, the employees in question were not answering to the requirements of clause (i) of paragraph 2(f) read with clause (a) of paragraph 69(1) of the Scheme of 1952 and hence, were not the excluded employees. The Division Bench of the High Court has rightly rejected the contention of appellants that every employee, who had withdrawn full amount from any provident fund, should be treated as an excluded employee. In our view, the answer by the Division Bench of the High Court is in accord with law and deserves to be approved. 15. We may also take note of and deal with a few ancillary aspects. The appellants, in their initial response to the proposition for coverage of the employees in question under the Scheme of 1952, attempted to state that most of the said employees were above 58 years of age and that they had expressed unwillingness to join the Fund under the said Scheme. It does not appear from the record if the concerned employees categorically made any such expression of unwillingness. Even otherwise, as noticed, the provisions of the Act and the stipulations of the Scheme of 1952 are mandatory in character and the application thereof could not have been averted by the appellants or the said employees except on certain eventualities as mentioned in Section 17 of the Act as also Paragraph 26 of the Scheme of 1952. Such eventualities are indeed non- existent in the present matter. So far the aspect relating to age is concerned, the operation and effect of the Act and the Scheme of 1952 are not restricted with reference to any age limit of the employee. Such a suggestion relating to the age of the employees had been entirely baseless and has rightly been disapproved. 15.1. Apart from the above, the appellants also alleged that they had applied for exemption and no decision was taken on their representation. In this regard, it is noticed that the appellant had not made any such submission that they had any better and beneficial scheme for their employees. In any case, there is no concept of any holidaying in payment of contribution by the employer by merely moving an application for exemption; and when there was no order of exemption under Section 17 by the competent authority, the appellant-company was under the liability to make payment of its contribution. 16. Before concluding, we may also point out that the observations by the learned Single Judge of High Court in this matter, that clause (i) of Paragraph 2(f) of the Scheme of 1952 has to be applied in relation to the withdrawal from any provident fund and else, an employee may keep on successively deriving benefits, remain rather unwarranted because the principle underlying the enactment and the Scheme of 1952 is to provide financial security to the employees. The concept of exclusion from the Scheme of 1952 is limited to the class/es of employees mentioned in Paragraph 2(f) only; and the area of operation of this exclusion clause cannot be expanded by way of an assumption about the alleged extra advantage likely to be driven home by an employee. In fact, even the assumption of the learned Single Judge does not appear apt in the framework of the Act and the Scheme of 1952. Whatever an employee gets by virtue of the Act of 1952 is basically the accumulation in his provident fund account, where he and his employer do contribute. The learned Single Judge had gone to the extent of observing that when the employees earning more than the particular amount (Rs. 6,500/- per month at the relevant time) were excluded under clause (ii) of Paragraph 2(f) of the Scheme of 1952, the retired employees who had received their accumulations could also be excluded under clause (i) of Paragraph 2(f). With respect, we are unable to find any logic in these observations because the stipulation in clause (ii) of Paragraph 2(f) relates to an entirely different class of employees with reference to the quantum of their pay; and exclusion of such class of employees as per clause (ii) cannot lead to any corollary that clause (i) be also expanded beyond its plain language. The order passed by the learned Single Judge, being based on entirely irrelevant considerations, has rightly been disapproved by the Division Bench of High Court. 17. To summarise, in the framework and setup of the Scheme of 1952, the concept remains plain and clear that if a person is member of the Fund created thereunder i.e., under the Scheme of 1952 and withdraws all his accumulations therein, he may not be obliged to be a member of the same Fund under the Scheme of 1952 over again and could be treated as an excluded employees. However, such is not the relaxation granted in relation to an employee who was earlier a member of any other Fund but later on joins such an establishment where he would be entitled to membership of the Fund created under the Scheme of 1952. This framework of the provisions and stipulations appears to be best serving the interest of employees, while providing them with continued financial security. Therefore, we find no reason to take any view different than the one taken by the Division Bench of the High Court in this case. | 0[ds]9. For determination of the question involved in this matter, appropriate it would be to briefly take note of the objects and reasons behind the Act of 1952 as also the relevant provisions thereof and the relevant stipulations in the Scheme framed thereunder i.e., the Scheme of 19529.1. The background aspects had been that, taking note of the need to provide for the institution of contributory provident funds for the purpose of financial security of industrial workers, the Government of India promulgated the Employees Provident Fund Ordinance with effect from 15.11.1951, which was later on replaced by the Act of 1952 . Thus, the concept underlying the enactment had been of providing for compulsory contributory provident funds for safeguarding the future of industrial workers. Elaborate provisions have been made in the Act for creation of a Fund, to be settled in accordance with a Scheme to be framed by the Central Government. However, the Act also provides for continuation of such of the other provident funds, which are offering equal or more advantageous terms to the employees concerned and are operating efficiently11. In the scheme and structure of the Act of 1952, it is but clear that for the specified establishments or class of establishments, the Central Government was to frame a Scheme, to be called the Employees Provident Fund Scheme; and soon after framing of such Scheme, a Fund was to be established, which was to vest in, and administered by, the Board constituted under Section 5A. As noticed, the expression Fund is defined in the Act of 1952 to mean the provident fund established under a Scheme; and the expression Scheme is defined to mean the Employees Provident Fund Scheme framed under Section 5. Indisputably, the Scheme of 1952 is the one framed by the Central Government in exercise of the powers conferred by Section 5 ibid. We shall examine the provisions of the Scheme of 1952 a little later. At this juncture, apposite it would be to take note of another feature of the Act of 1952 emanating from the provisions relating to exemption, as contained in Section 17 thereof12. By virtue of sub-section (1) of Section 17, an establishment could be exempted from the operation of all or any of the provisions of any Scheme if: (a) in regard to the establishment to which the Act applies, the appropriate Government is of opinion that the rules of its provident fund, with respect to the rates of contributions, are not less favourable for the employees than those specified in Section 6 and the employees are in enjoyment of other provident fund benefits which, on the whole, are not less favourable than the benefits available under the Act or under the Scheme in relation to any other establishment of similar character; and (b) in regard to any other establishment, the appropriate Government is of opinion that benefits in the nature of provident fund, pension or gratuity, as available to the employees of such establishment are, on the whole, not less favourable than the benefits provided under the Act or any Scheme in any other establishment of similar character12.1. When an exemption is granted to an establishment under clause (a) of sub-section (1) of Section 17 of the Act of 1952, several duties are cast upon the employer as specified in sub-section (1-A) thereof, with penal provisions in the event of default. We need not elaborate on various other provisions contained in Section 17. Suffice would be to notice for the present purpose that coverage of the employees like the one engaged in the establishment of appellants is the rule; and ordinarily, the employees are expected to be covered by the Scheme framed under Section 5 of the Act of 1952 with the exception being that in case of availability of equivalent or more favourable benefits in an establishment, the appropriate Government could grant exemption. As per sub-section (2) of Section 17, even the Scheme may make a provision for exemption but the basic requirement being again that the persons or the class of persons to be exempted are entitled to such benefits which are, on the whole, not less favourable than the benefits provided under the Act and the Scheme thereunder i.e., the Scheme of 1952 . All the requirements of Section 17 make the position undoubtedly clear that the provisions are intended to ensure optimum benefits for the employees and even the exemption is granted only on the satisfaction of appropriateGovernment about existence of equivalent or more favourable provident fund Scheme for the employees concerned13. The Scheme of 1952 was framed by the Central Government on 02.09.1952 i.e., within 6 months of the enactment of the Act of 1952. The provisions of the Scheme are generally made applicable, subject to the provisions of Sections 16 and 17 of the Act, to all the factories and other establishments to which the Act applies or is applied under sub-sections (3) and (4) of Section 1 or under Section 3 of the Act. The provisions of the Scheme of 1952 have been extended to various establishments from time to time under clause (b) of sub-paragraph (3) of Paragraph 1 thereof. As per Paragraph 26 of the Scheme of 1952, every employee employed in or in connection with the work of the factory or other establishment to which this Scheme applies, is entitled to, and is obliged to, become a member of the Fund from the date the Scheme would come into force for such factory or establishment, except the excluded employees. Significantly, even an excluded employee, on ceasing to be so i.e., on ceasing to be an excluded employee, is entitled to, and is required to, become a member of the Fund from the date of such cessation13.1. In the framework of the Scheme of 1952, exclusion is provided under clause (i) of Paragraph 2(f) thereof to an employee who had been a member of the Fund and had withdrawn full amount of his accumulations in the Fund under clause (a) or (c) of Paragraph 69(1). Now, clause (a) of the said Paragraph 69(1) of the Scheme of 1952 refers to a member who would withdraw the full amount standing to his credit in the Fund on retirement from service after attaining the age of 55 years. Clause (c) is not relevant for the present purpose as the same relates to a member who withdraws the amount before migration from India for permanent settlement or taking employment abroad but then, a comprehensive look at various clauses of paragraph 69(1) makes it clear that reference therein is to a member of the Fund who withdraws full amount standing to his credit for different eventualities like regular retirement; retirement for disablement or incapacity; migration from the country; termination of service; accepting a voluntary retirement scheme; closure of the factory; transfer from a covered factory or establishment to another factory or establishment not covered under the Act etc14. It is not a matter of much debate in this case that the appellants otherwise answer to the description of employer under the Act of 1952 and their establishment is covered thereunder. The basic contention urged in this matter on behalf of the appellants is that the persons engaged by them had been the members of General Provident Fund while working as the employees of Railways and had withdrawn the full amount of accumulations in GPF and are, therefore, to be treated as excluded employees. This contention has fundamental shortcomings as pointed out infra14.1. The crucial aspect to be considered in this matter is as to whether the definition of excluded employees in Paragraph 2(f) as also the stipulation in Paragraphs 26 and 69 of the Scheme of 1952 refer to any provident fund or only to the Fund under the Scheme of 1952? As noticed above, in the setup and structure of the Act of 1952, specific distinction is maintained between the Fund, which is created by the Central Government under Section 5(1) of the Act and any other provident fund, which is created by an employer. Significantly, clause (f) of Paragraph 2 of the Scheme of 1952 refers to the Fund and not to any Fund; and Paragraphs 26 and 69 also refer to the Fund and not to any Fund. The determiner the, as occurring in Paragraph 2(f) as also Paragraph 69 before the expression Fund makes it clear that the reference therein is only to the Fund which is created under the Scheme of 1952 and it is not a general reference to any Fund. The requirement of joining the Fund under Paragraph 26 ibid. is also of joining that Fund which is created under the Scheme of 1952. In other words, obviously and undoubtedly, the Fund referred to in Paragraphs 2(f), 26 and 69 of the Scheme of 1952 is that Fund, which is created under the Scheme of 1952 and the reference is not to any other Fund. Thus, to be covered under the expression excluded employee by virtue of clause (i) of paragraph 2(f) read with clause (a) of paragraph 69(1) ibid., the employee must be such who was a member of the Fund established under the Scheme of 1952 and who had withdrawn full amount of his accumulations in the said Fund on retirement from service after attaining the age of 55 years14.2. On the plain interpretation aforesaid, we have not an iota of doubt that the retired Railway employees, who had withdrawn their accumulations in General Provident Fund or any other Fund of which they were members, could not have been treated as excluded employees for the purpose of the Scheme of 1952 for the reason that such a withdrawal had not been from the Fund established under the Scheme of 1952. In fact, there was no occasion for them to make any withdrawal from the Fund established under the Scheme of 1952 because they were never the members of the said Fund. In other words, the employees in question were not answering to the requirements of clause (i) of paragraph 2(f) read with clause (a) of paragraph 69(1) of the Scheme of 1952 and hence, were not the excluded employees. The Division Bench of the High Court has rightly rejected the contention of appellants that every employee, who had withdrawn full amount from any provident fund, should be treated as an excluded employee. In our view, the answer by the Division Bench of the High Court is in accord with law and deserves to be approved15. We may also take note of and deal with a few ancillary aspects. The appellants, in their initial response to the proposition for coverage of the employees in question under the Scheme of 1952, attempted to state that most of the said employees were above 58 years of age and that they had expressed unwillingness to join the Fund under the said Scheme. It does not appear from the record if the concerned employees categorically made any such expression of unwillingness. Even otherwise, as noticed, the provisions of the Act and the stipulations of the Scheme of 1952 are mandatory in character and the application thereof could not have been averted by the appellants or the said employees except on certain eventualities as mentioned in Section 17 of the Act as also Paragraph 26 of the Scheme of 1952. Such eventualities are indeed non- existent in the present matter. So far the aspect relating to age is concerned, the operation and effect of the Act and the Scheme of 1952 are not restricted with reference to any age limit of the employee. Such a suggestion relating to the age of the employees had been entirely baseless and has rightly been disapproved15.1. Apart from the above, the appellants also alleged that they had applied for exemption and no decision was taken on their representation. In this regard, it is noticed that the appellant had not made any such submission that they had any better and beneficial scheme for their employees. In any case, there is no concept of any holidaying in payment of contribution by the employer by merely moving an application for exemption; and when there was no order of exemption under Section 17 by the competent authority, the appellant-company was under the liability to make payment of its contribution16. Before concluding, we may also point out that the observations by the learned Single Judge of High Court in this matter, that clause (i) of Paragraph 2(f) of the Scheme of 1952 has to be applied in relation to the withdrawal from any provident fund and else, an employee may keep on successively deriving benefits, remain rather unwarranted because the principle underlying the enactment and the Scheme of 1952 is to provide financial security to the employees. The concept of exclusion from the Scheme of 1952 is limited to the class/es of employees mentioned in Paragraph 2(f) only; and the area of operation of this exclusion clause cannot be expanded by way of an assumption about the alleged extra advantage likely to be driven home by an employee. In fact, even the assumption of the learned Single Judge does not appear apt in the framework of the Act and the Scheme of 1952. Whatever an employee gets by virtue of the Act of 1952 is basically the accumulation in his provident fund account, where he and his employer do contribute. The learned Single Judge had gone to the extent of observing that when the employees earning more than the particular amount (Rs. 6,500/- per month at the relevant time) were excluded under clause (ii) of Paragraph 2(f) of the Scheme of 1952, the retired employees who had received their accumulations could also be excluded under clause (i) of Paragraph 2(f). With respect, we are unable to find any logic in these observations because the stipulation in clause (ii) of Paragraph 2(f) relates to an entirely different class of employees with reference to the quantum of their pay; and exclusion of such class of employees as per clause (ii) cannot lead to any corollary that clause (i) be also expanded beyond its plain language. The order passed by the learned Single Judge, being based on entirely irrelevant considerations, has rightly been disapproved by the Division Bench of High Court17. To summarise, in the framework and setup of the Scheme of 1952, the concept remains plain and clear that if a person is member of the Fund created thereunder i.e., under the Scheme of 1952 and withdraws all his accumulations therein, he may not be obliged to be a member of the same Fund under the Scheme of 1952 over again and could be treated as an excluded employees. However, such is not the relaxation granted in relation to an employee who was earlier a member of any other Fund but later on joins such an establishment where he would be entitled to membership of the Fund created under the Scheme of 1952. This framework of the provisions and stipulations appears to be best serving the interest of employees, while providing them with continued financial security. Therefore, we find no reason to take any view different than the one taken by the Division Bench of the High Court in this case. | 0 | 9,744 | 2,834 | ### Instruction:
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on retirement from service after attaining the age of 55 years. 14.2. On the plain interpretation aforesaid, we have not an iota of doubt that the retired Railway employees, who had withdrawn their accumulations in General Provident Fund or any other Fund of which they were members, could not have been treated as excluded employees for the purpose of the Scheme of 1952 for the reason that such a withdrawal had not been from the Fund established under the Scheme of 1952. In fact, there was no occasion for them to make any withdrawal from the Fund established under the Scheme of 1952 because they were never the members of the said Fund. In other words, the employees in question were not answering to the requirements of clause (i) of paragraph 2(f) read with clause (a) of paragraph 69(1) of the Scheme of 1952 and hence, were not the excluded employees. The Division Bench of the High Court has rightly rejected the contention of appellants that every employee, who had withdrawn full amount from any provident fund, should be treated as an excluded employee. In our view, the answer by the Division Bench of the High Court is in accord with law and deserves to be approved. 15. We may also take note of and deal with a few ancillary aspects. The appellants, in their initial response to the proposition for coverage of the employees in question under the Scheme of 1952, attempted to state that most of the said employees were above 58 years of age and that they had expressed unwillingness to join the Fund under the said Scheme. It does not appear from the record if the concerned employees categorically made any such expression of unwillingness. Even otherwise, as noticed, the provisions of the Act and the stipulations of the Scheme of 1952 are mandatory in character and the application thereof could not have been averted by the appellants or the said employees except on certain eventualities as mentioned in Section 17 of the Act as also Paragraph 26 of the Scheme of 1952. Such eventualities are indeed non- existent in the present matter. So far the aspect relating to age is concerned, the operation and effect of the Act and the Scheme of 1952 are not restricted with reference to any age limit of the employee. Such a suggestion relating to the age of the employees had been entirely baseless and has rightly been disapproved. 15.1. Apart from the above, the appellants also alleged that they had applied for exemption and no decision was taken on their representation. In this regard, it is noticed that the appellant had not made any such submission that they had any better and beneficial scheme for their employees. In any case, there is no concept of any holidaying in payment of contribution by the employer by merely moving an application for exemption; and when there was no order of exemption under Section 17 by the competent authority, the appellant-company was under the liability to make payment of its contribution. 16. Before concluding, we may also point out that the observations by the learned Single Judge of High Court in this matter, that clause (i) of Paragraph 2(f) of the Scheme of 1952 has to be applied in relation to the withdrawal from any provident fund and else, an employee may keep on successively deriving benefits, remain rather unwarranted because the principle underlying the enactment and the Scheme of 1952 is to provide financial security to the employees. The concept of exclusion from the Scheme of 1952 is limited to the class/es of employees mentioned in Paragraph 2(f) only; and the area of operation of this exclusion clause cannot be expanded by way of an assumption about the alleged extra advantage likely to be driven home by an employee. In fact, even the assumption of the learned Single Judge does not appear apt in the framework of the Act and the Scheme of 1952. Whatever an employee gets by virtue of the Act of 1952 is basically the accumulation in his provident fund account, where he and his employer do contribute. The learned Single Judge had gone to the extent of observing that when the employees earning more than the particular amount (Rs. 6,500/- per month at the relevant time) were excluded under clause (ii) of Paragraph 2(f) of the Scheme of 1952, the retired employees who had received their accumulations could also be excluded under clause (i) of Paragraph 2(f). With respect, we are unable to find any logic in these observations because the stipulation in clause (ii) of Paragraph 2(f) relates to an entirely different class of employees with reference to the quantum of their pay; and exclusion of such class of employees as per clause (ii) cannot lead to any corollary that clause (i) be also expanded beyond its plain language. The order passed by the learned Single Judge, being based on entirely irrelevant considerations, has rightly been disapproved by the Division Bench of High Court. 17. To summarise, in the framework and setup of the Scheme of 1952, the concept remains plain and clear that if a person is member of the Fund created thereunder i.e., under the Scheme of 1952 and withdraws all his accumulations therein, he may not be obliged to be a member of the same Fund under the Scheme of 1952 over again and could be treated as an excluded employees. However, such is not the relaxation granted in relation to an employee who was earlier a member of any other Fund but later on joins such an establishment where he would be entitled to membership of the Fund created under the Scheme of 1952. This framework of the provisions and stipulations appears to be best serving the interest of employees, while providing them with continued financial security. Therefore, we find no reason to take any view different than the one taken by the Division Bench of the High Court in this case.
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accumulations in the said Fund on retirement from service after attaining the age of 55 years14.2. On the plain interpretation aforesaid, we have not an iota of doubt that the retired Railway employees, who had withdrawn their accumulations in General Provident Fund or any other Fund of which they were members, could not have been treated as excluded employees for the purpose of the Scheme of 1952 for the reason that such a withdrawal had not been from the Fund established under the Scheme of 1952. In fact, there was no occasion for them to make any withdrawal from the Fund established under the Scheme of 1952 because they were never the members of the said Fund. In other words, the employees in question were not answering to the requirements of clause (i) of paragraph 2(f) read with clause (a) of paragraph 69(1) of the Scheme of 1952 and hence, were not the excluded employees. The Division Bench of the High Court has rightly rejected the contention of appellants that every employee, who had withdrawn full amount from any provident fund, should be treated as an excluded employee. In our view, the answer by the Division Bench of the High Court is in accord with law and deserves to be approved15. We may also take note of and deal with a few ancillary aspects. The appellants, in their initial response to the proposition for coverage of the employees in question under the Scheme of 1952, attempted to state that most of the said employees were above 58 years of age and that they had expressed unwillingness to join the Fund under the said Scheme. It does not appear from the record if the concerned employees categorically made any such expression of unwillingness. Even otherwise, as noticed, the provisions of the Act and the stipulations of the Scheme of 1952 are mandatory in character and the application thereof could not have been averted by the appellants or the said employees except on certain eventualities as mentioned in Section 17 of the Act as also Paragraph 26 of the Scheme of 1952. Such eventualities are indeed non- existent in the present matter. So far the aspect relating to age is concerned, the operation and effect of the Act and the Scheme of 1952 are not restricted with reference to any age limit of the employee. Such a suggestion relating to the age of the employees had been entirely baseless and has rightly been disapproved15.1. Apart from the above, the appellants also alleged that they had applied for exemption and no decision was taken on their representation. In this regard, it is noticed that the appellant had not made any such submission that they had any better and beneficial scheme for their employees. In any case, there is no concept of any holidaying in payment of contribution by the employer by merely moving an application for exemption; and when there was no order of exemption under Section 17 by the competent authority, the appellant-company was under the liability to make payment of its contribution16. Before concluding, we may also point out that the observations by the learned Single Judge of High Court in this matter, that clause (i) of Paragraph 2(f) of the Scheme of 1952 has to be applied in relation to the withdrawal from any provident fund and else, an employee may keep on successively deriving benefits, remain rather unwarranted because the principle underlying the enactment and the Scheme of 1952 is to provide financial security to the employees. The concept of exclusion from the Scheme of 1952 is limited to the class/es of employees mentioned in Paragraph 2(f) only; and the area of operation of this exclusion clause cannot be expanded by way of an assumption about the alleged extra advantage likely to be driven home by an employee. In fact, even the assumption of the learned Single Judge does not appear apt in the framework of the Act and the Scheme of 1952. Whatever an employee gets by virtue of the Act of 1952 is basically the accumulation in his provident fund account, where he and his employer do contribute. The learned Single Judge had gone to the extent of observing that when the employees earning more than the particular amount (Rs. 6,500/- per month at the relevant time) were excluded under clause (ii) of Paragraph 2(f) of the Scheme of 1952, the retired employees who had received their accumulations could also be excluded under clause (i) of Paragraph 2(f). With respect, we are unable to find any logic in these observations because the stipulation in clause (ii) of Paragraph 2(f) relates to an entirely different class of employees with reference to the quantum of their pay; and exclusion of such class of employees as per clause (ii) cannot lead to any corollary that clause (i) be also expanded beyond its plain language. The order passed by the learned Single Judge, being based on entirely irrelevant considerations, has rightly been disapproved by the Division Bench of High Court17. To summarise, in the framework and setup of the Scheme of 1952, the concept remains plain and clear that if a person is member of the Fund created thereunder i.e., under the Scheme of 1952 and withdraws all his accumulations therein, he may not be obliged to be a member of the same Fund under the Scheme of 1952 over again and could be treated as an excluded employees. However, such is not the relaxation granted in relation to an employee who was earlier a member of any other Fund but later on joins such an establishment where he would be entitled to membership of the Fund created under the Scheme of 1952. This framework of the provisions and stipulations appears to be best serving the interest of employees, while providing them with continued financial security. Therefore, we find no reason to take any view different than the one taken by the Division Bench of the High Court in this case.
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C. Sankaranarayanan Etc Vs. State Of Kerala | by the rules contained in Chapter XXVIIB and Chapter XIV (C) he was relegated to the same position as that of a teacher of government school even in the matter of superannuation. 7. Another point which has been strenuously urged is that the Government orders which followed the memorandum submitted by the teachers were the result of an understanding which could well be regarded as a binding agreement or contract between the Government and the teachers from which it was not open to the Government to resile unilaterally. Alternatively a rule similar to that of estoppel could be invoked. The first limb of this argument was disposed of by the learned single Judge by rightly pointing out that the power of the Government under Article 309 of the Constitution to make rules regulating the conditions of service of Government employees or of teachers in aided schools under S. 12 of Act 6 of 1959 could in no way be fettered by any agreement even it such an agreement was proved. We have not been shown any principle or authority on which any agreement or contract could be spelt out from the document relied upon. Nor is it possible to understand how the power conferred by Article 309 of the Constitution or by the statutory provisions could be curtailed or fettered in any manner by any alleged agreement or contract. The rule of estoppel can hardly be invoked in the circumstances of the case although support was sought from certain decisions of this Court. 8. In union of India v. M/s. Anglo-Afghan Agencies Ltd., (1968) 2 SCR 366 = (AIR 1968 SC 718 ), this Court held that where a person had acted upon the representation made in the export promotion scheme that import licence upto the value of the goods exported would be issued and had actually exported goods his claim for an import licence for the maximum value permissible by the scheme could not be arbitrarily rejected. It was observed that the claim in that case was founded upon the equity which arose as a result of representation made on behalf of the Government in the export promotion scheme and the action taken by the respondents there acting upon the representation. Even though Section 115 of the Evidence Act was not in terms applicable it was still open to the respondent who had acted on that representation to claim that the Government should be bound to carry out the promise made by it though not recorded in the form of a formal contract as required by the Constitution. These principles can hardly be applied here because there is no question of any representation having been made by the Government which was acted upon to their detriment by the appellants. Moreover the conditions of service could be indisputably changed in exercise of the powers contained in Article 309 of the Constitution and Act 6 of 1959. In such a situation it was not open to the appellants to invoke the principle of the rule of estoppel. 9. Our attention has also been invited particularly on behalf of the appellants in C. As. 1790 and 1791 to Exhibits P-6 and P-7. Exhibit P-6 is a copy of proceedings of the District Education Officer, Kottayam. It contains a mention of order dated March 10, 1967 in which it is stated that the age of compulsory retirement of all officers in the State had been raised to 58 as per the Government orders mentioned therein. The continuance beyond the age of 55 of these teachers was subject to suitability. A list of certain teachers was given who were allowed to continue in service till 58 years of age. Similarly Exhibit P-7 is a copy of the proceedings of the District Educational Officer, Palghat, in which the names of teachers who were to continue beyond the age of 55 was given. This was apparently done after the age of superannuation had been raised to 58 with effect from July 1, 1966 vide Exhibit P-4 (G. O.) dated July 14, 1966. But then, as has been noticed before, the age of retirement was again lowered to 55 years. Change in the rule relating to retirement can be validly made and it does not attract either Art. 311 (2) or Article 14 of the Constitution : see Bishun Narain Mishra v. State of Uttar Pradesh, (1965) 1 SCR 693 = (AIR 1965 SC 1567 ). 10. Reliance has also been placed on behalf of the appellants on Rules 5 and 6 of the Kerala Service Rules. According to Rule 5 nothing in the Rules or in any Rule made thereunder shall operate to deprive any person of any right or privilege to which he is entitled by or under any law or by the terms of any contract or agreement subsisting between such person and government on the date the Rules came into force. Section 6 says that subject to the provisions of Rule 5 nothing in the Rules or any rule made under the Rules shall operate to affect to the disadvantage of any person holding a substantive post under government to whom the Rules apply, "the conditions of service in respect of pay, leave, allowances, pension or any other matter which are applicable to him (a) on the date these rules came into force, or (b) by virtue of any order or rule made by the government unless such person gives his consent". The point sought to be made is that once the age of retirement was raised to 58 it could not be reduced to 55 owing to the provisions of these Rules. This matter was not raised before the Division Bench of the High Court and the normal practice of this court is not to allow a new point to be raised except in a case of a very special nature. We find no reason or justification for entertaining this contention for the first time in this court in the present appeals. | 0[ds]We fully concur with the view of the learned Judges of the High Court and are unable to accede to the contention that in spite of the clear wording of the various rules to which reference has been made the appellant, who is a teacher in an aided school can get the benefit of Rule 8 of Chapter XXVIIA. That cannot possibly be applied to him as that was a general rule and when he opted to be governed by the rules contained in Chapter XXVIIB and Chapter XIV (C) he was relegated to the same position as that of a teacher of government school even in the matter of superannuationAlternatively a rule similar to that of estoppel could be invoked. The first limb of this argument was disposed of by the learned single Judge by rightly pointing out that the power of the Government under Article 309 of the Constitution to make rules regulating the conditions of service of Government employees or of teachers in aided schools under S. 12 of Act 6 of 1959 could in no way be fettered by any agreement even it such an agreement was proved. We have not been shown any principle or authority on which any agreement or contract could be spelt out from the document relied upon. Nor is it possible to understand how the power conferred by Article 309 of the Constitution or by the statutory provisions could be curtailed or fettered in any manner by any alleged agreement or contract. The rule of estoppel can hardly be invoked in the circumstances of the case although support was sought from certain decisions of this CourtThese principles can hardly be applied here because there is no question of any representation having been made by the Government which was acted upon to their detriment by the appellants. Moreover the conditions of service could be indisputably changed in exercise of the powers contained in Article 309 of the Constitution and Act 6 of 1959. In such a situation it was not open to the appellants to invoke the principle of the rule of estoppel10. Reliance has also been placed on behalf of the appellants on Rules 5 and 6 of the Kerala Service Rules. According to Rule 5 nothing in the Rules or in any Rule made thereunder shall operate to deprive any person of any right or privilege to which he is entitled by or under any law or by the terms of any contract or agreement subsisting between such person and government on the date the Rules came into force. Section 6 says that subject to the provisions of Rule 5 nothing in the Rules or any rule made under the Rules shall operate to affect to the disadvantage of any person holding a substantive post under government to whom the Rules apply, "the conditions of service in respect of pay, leave, allowances, pension or any other matter which are applicable to him (a) on the date these rules came into force, or (b) by virtue of any order or rule made by the government unless such person gives his consent". The point sought to be made is that once the age of retirement was raised to 58 it could not be reduced to 55 owing to the provisions of these Rules. This matter was not raised before the Division Bench of the High Court and the normal practice of this court is not to allow a new point to be raised except in a case of a very special nature. We find no reason or justification for entertaining this contention for the first time in this court in the present appeals. | 0 | 2,439 | 644 | ### Instruction:
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by the rules contained in Chapter XXVIIB and Chapter XIV (C) he was relegated to the same position as that of a teacher of government school even in the matter of superannuation. 7. Another point which has been strenuously urged is that the Government orders which followed the memorandum submitted by the teachers were the result of an understanding which could well be regarded as a binding agreement or contract between the Government and the teachers from which it was not open to the Government to resile unilaterally. Alternatively a rule similar to that of estoppel could be invoked. The first limb of this argument was disposed of by the learned single Judge by rightly pointing out that the power of the Government under Article 309 of the Constitution to make rules regulating the conditions of service of Government employees or of teachers in aided schools under S. 12 of Act 6 of 1959 could in no way be fettered by any agreement even it such an agreement was proved. We have not been shown any principle or authority on which any agreement or contract could be spelt out from the document relied upon. Nor is it possible to understand how the power conferred by Article 309 of the Constitution or by the statutory provisions could be curtailed or fettered in any manner by any alleged agreement or contract. The rule of estoppel can hardly be invoked in the circumstances of the case although support was sought from certain decisions of this Court. 8. In union of India v. M/s. Anglo-Afghan Agencies Ltd., (1968) 2 SCR 366 = (AIR 1968 SC 718 ), this Court held that where a person had acted upon the representation made in the export promotion scheme that import licence upto the value of the goods exported would be issued and had actually exported goods his claim for an import licence for the maximum value permissible by the scheme could not be arbitrarily rejected. It was observed that the claim in that case was founded upon the equity which arose as a result of representation made on behalf of the Government in the export promotion scheme and the action taken by the respondents there acting upon the representation. Even though Section 115 of the Evidence Act was not in terms applicable it was still open to the respondent who had acted on that representation to claim that the Government should be bound to carry out the promise made by it though not recorded in the form of a formal contract as required by the Constitution. These principles can hardly be applied here because there is no question of any representation having been made by the Government which was acted upon to their detriment by the appellants. Moreover the conditions of service could be indisputably changed in exercise of the powers contained in Article 309 of the Constitution and Act 6 of 1959. In such a situation it was not open to the appellants to invoke the principle of the rule of estoppel. 9. Our attention has also been invited particularly on behalf of the appellants in C. As. 1790 and 1791 to Exhibits P-6 and P-7. Exhibit P-6 is a copy of proceedings of the District Education Officer, Kottayam. It contains a mention of order dated March 10, 1967 in which it is stated that the age of compulsory retirement of all officers in the State had been raised to 58 as per the Government orders mentioned therein. The continuance beyond the age of 55 of these teachers was subject to suitability. A list of certain teachers was given who were allowed to continue in service till 58 years of age. Similarly Exhibit P-7 is a copy of the proceedings of the District Educational Officer, Palghat, in which the names of teachers who were to continue beyond the age of 55 was given. This was apparently done after the age of superannuation had been raised to 58 with effect from July 1, 1966 vide Exhibit P-4 (G. O.) dated July 14, 1966. But then, as has been noticed before, the age of retirement was again lowered to 55 years. Change in the rule relating to retirement can be validly made and it does not attract either Art. 311 (2) or Article 14 of the Constitution : see Bishun Narain Mishra v. State of Uttar Pradesh, (1965) 1 SCR 693 = (AIR 1965 SC 1567 ). 10. Reliance has also been placed on behalf of the appellants on Rules 5 and 6 of the Kerala Service Rules. According to Rule 5 nothing in the Rules or in any Rule made thereunder shall operate to deprive any person of any right or privilege to which he is entitled by or under any law or by the terms of any contract or agreement subsisting between such person and government on the date the Rules came into force. Section 6 says that subject to the provisions of Rule 5 nothing in the Rules or any rule made under the Rules shall operate to affect to the disadvantage of any person holding a substantive post under government to whom the Rules apply, "the conditions of service in respect of pay, leave, allowances, pension or any other matter which are applicable to him (a) on the date these rules came into force, or (b) by virtue of any order or rule made by the government unless such person gives his consent". The point sought to be made is that once the age of retirement was raised to 58 it could not be reduced to 55 owing to the provisions of these Rules. This matter was not raised before the Division Bench of the High Court and the normal practice of this court is not to allow a new point to be raised except in a case of a very special nature. We find no reason or justification for entertaining this contention for the first time in this court in the present appeals.
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We fully concur with the view of the learned Judges of the High Court and are unable to accede to the contention that in spite of the clear wording of the various rules to which reference has been made the appellant, who is a teacher in an aided school can get the benefit of Rule 8 of Chapter XXVIIA. That cannot possibly be applied to him as that was a general rule and when he opted to be governed by the rules contained in Chapter XXVIIB and Chapter XIV (C) he was relegated to the same position as that of a teacher of government school even in the matter of superannuationAlternatively a rule similar to that of estoppel could be invoked. The first limb of this argument was disposed of by the learned single Judge by rightly pointing out that the power of the Government under Article 309 of the Constitution to make rules regulating the conditions of service of Government employees or of teachers in aided schools under S. 12 of Act 6 of 1959 could in no way be fettered by any agreement even it such an agreement was proved. We have not been shown any principle or authority on which any agreement or contract could be spelt out from the document relied upon. Nor is it possible to understand how the power conferred by Article 309 of the Constitution or by the statutory provisions could be curtailed or fettered in any manner by any alleged agreement or contract. The rule of estoppel can hardly be invoked in the circumstances of the case although support was sought from certain decisions of this CourtThese principles can hardly be applied here because there is no question of any representation having been made by the Government which was acted upon to their detriment by the appellants. Moreover the conditions of service could be indisputably changed in exercise of the powers contained in Article 309 of the Constitution and Act 6 of 1959. In such a situation it was not open to the appellants to invoke the principle of the rule of estoppel10. Reliance has also been placed on behalf of the appellants on Rules 5 and 6 of the Kerala Service Rules. According to Rule 5 nothing in the Rules or in any Rule made thereunder shall operate to deprive any person of any right or privilege to which he is entitled by or under any law or by the terms of any contract or agreement subsisting between such person and government on the date the Rules came into force. Section 6 says that subject to the provisions of Rule 5 nothing in the Rules or any rule made under the Rules shall operate to affect to the disadvantage of any person holding a substantive post under government to whom the Rules apply, "the conditions of service in respect of pay, leave, allowances, pension or any other matter which are applicable to him (a) on the date these rules came into force, or (b) by virtue of any order or rule made by the government unless such person gives his consent". The point sought to be made is that once the age of retirement was raised to 58 it could not be reduced to 55 owing to the provisions of these Rules. This matter was not raised before the Division Bench of the High Court and the normal practice of this court is not to allow a new point to be raised except in a case of a very special nature. We find no reason or justification for entertaining this contention for the first time in this court in the present appeals.
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S.R. Tewari Vs. District Board Agra And Another | the matter of promotion, as well as against orders of dismissal. The orders imposing fine, suspension, reduction or supersession are ex facie orders of punishment, and there is no reason why the order of dismissal which occurs in the same clause, and which is subject to appeal is not an order of that nature. The fourth proviso also confers a similar right of appeal against the order of the Board dismissing certain superior servants. An appeal against an order of mere determination of employment, which may generally by made in the exigencies of the services may serve no useful purpose. Provision of a right of appeal is indicative of the nature of the order. In our view it is competent under S. 84 read with S. 172(2) to the State Government to make rules imposing conditions on the appointment and punishment of persons to offices or to any particular office requiring professional skill and to provide generally the conditions under which the servants of the Board are to serve, and in the exercise of the powers which are vested by S. 82, these rules have an overriding effect. An order of determination of employment which is not of the nature of an order of dismissal, has by virtue of the rules framed under cl. (d) of S. 84 to be exercised consistently with R. 3A. and an order of dismissal involving punishment must be exercised consistently with the rule or regulation framed under the Notification dated March 25, 1946 under S. 84 (b) and (d). We, therefore, hold that the Board had the power to determine the employment of the appellant and the Board purported to exercise that power. But counsel for the appellant contented that even though in form the power of determination of employment was exercised, in substance it was intended to exercise the power of dismissal and that the form of the resolution of the Board was merely to camouflage the real object of the Board. It is settled law that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely to camouflage an order of dismissal for misconduct, and it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form merely of determination of employment is in reality a cloak for an order of dismissal as a matter of punishment, the Court would not be debarred merely because of the form of the order in giving effect to the rights conferred by statutory rules upon the employee. 14. Counsel for the appellant pointed out that in the affidavit filed on behalf of the Board, the entire service-sheet of the appellant since the year 1945 was set out. The affidavit refers to the censure administered to the appellant for neglect of duty on March 25, 1945, to the order of dismissal of the appellant from service on a finding by the Public Works Committee that he was guilty of negligence and unfaithfulness in 1948, to the comments made by the Chairman of the Board in 1947 that the appellant had not proved himself to be a loyal and faithful servant and to stoppage of increments of the appellant by an order of the President of the Board in 1953 and 1954. Reliance is then placed upon paragraph 21 of the affidavit of the Board in which it was stated that the plea of the appellant that he had honestly and faithfully discharged his duties but the District Board has capriciously and without any justification terminated the services of the appellant was untrue and it was asserted that the services of the appellant had been justifiably terminated. It must, however, be observed that in the petition the appellant challenged the validity of the order terminating his services on the ground firstly that the Board had no power to terminate his employment and secondly that it was not justified in terminating the employment. It was never contended that the order terminating the employment was one in reality of the nature of dismissal as punishment and the form used in the resolution of the Board was merely to camouflage the real object of the Board. Averment in the petition that the Board had acted capriciously and without any justification does not amount to a plea that the order was intended to be one of dismissal though in form one of determination of employment. It also does not appear to have been argued before the Division Bench that the impugned resolution was in reality one of dismissal. Mootham, C. J., in delivering the judgment of the Court dealt with the only argument advanced before the Court, viz, that although the Board had the power to punish or dismiss the appellant it had no power otherwise to terminate his service in the absence of a special contract which did not exist in this case. If the appellant had in his petition pleaded the case that the order though in the form of determination of employment was intended to be one of dismissal as a matter of punishment and the form was adopted merely to conceal the true object of the Board, it would have given opportunity to the Board to meet that case and to produce all the evidence in that connection in their possession. The question raised is one primarily of fact; and it was never raised, nor explored in the High Court on proper pleadings. It would be taking the Board by surprise to allow the appellant to make out this new case at this stage. We, therefore, refuse to consider the question whether the order passed against the appellant pursuant to the resolution dated October 18, 1954 was for dismissal of the appellant from the service of the Board, as a punishment for misconduct. | 0[ds]In our view it is competent under S. 84 read with S. 172(2) to the State Government to make rules imposing conditions on the appointment and punishment of persons to offices or to any particular office requiring professional skill and to provide generally the conditions under which the servants of the Board are to serve, and in the exercise of the powers which are vested by S. 82, these rules have an overriding effect. An order of determination of employment which is not of the nature of an order of dismissal, has by virtue of the rules framed under cl. (d) of S. 84 to be exercised consistently with R. 3A. and an order of dismissal involving punishment must be exercised consistently with the rule or regulation framed under the Notification dated March 25, 1946 under S. 84 (b) and (d). We, therefore, hold that the Board had the power to determine the employment of the appellant and the Board purported to exercise that power. But counsel for the appellant contented that even though in form the power of determination of employment was exercised, in substance it was intended to exercise the power of dismissal and that the form of the resolution of the Board was merely to camouflage the real object of the Board. It is settled law that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely to camouflage an order of dismissal for misconduct, and it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form merely of determination of employment is in reality a cloak for an order of dismissal as a matter of punishment, the Court would not be debarred merely because of the form of the order in giving effect to the rights conferred by statutory rules upon the employee14. Counsel for the appellant pointed out that in the affidavit filed on behalf of the Board, the entire service-sheet of the appellant since the year 1945 was set out. The affidavit refers to the censure administered to the appellant for neglect of duty on March 25, 1945, to the order of dismissal of the appellant from service on a finding by the Public Works Committee that he was guilty of negligence and unfaithfulness in 1948, to the comments made by the Chairman of the Board in 1947 that the appellant had not proved himself to be a loyal and faithful servant and to stoppage of increments of the appellant by an order of the President of the Board in 1953 and 1954. Reliance is then placed upon paragraph 21 of the affidavit of the Board in which it was stated that the plea of the appellant that he had honestly and faithfully discharged his duties but the District Board has capriciously and without any justification terminated the services of the appellant was untrue and it was asserted that the services of the appellant had been justifiably terminated. It must, however, be observed that in the petition the appellant challenged the validity of the order terminating his services on the ground firstly that the Board had no power to terminate his employment and secondly that it was not justified in terminating the employment. It was never contended that the order terminating the employment was one in reality of the nature of dismissal as punishment and the form used in the resolution of the Board was merely to camouflage the real object of the Board. Averment in the petition that the Board had acted capriciously and without any justification does not amount to a plea that the order was intended to be one of dismissal though in form one of determination of employment. It also does not appear to have been argued before the Division Bench that the impugned resolution was in reality one of dismissal. Mootham, C. J., in delivering the judgment of the Court dealt with the only argument advanced before the Court, viz, that although the Board had the power to punish or dismiss the appellant it had no power otherwise to terminate his service in the absence of a special contract which did not exist in this case. If the appellant had in his petition pleaded the case that the order though in the form of determination of employment was intended to be one of dismissal as a matter of punishment and the form was adopted merely to conceal the true object of the Board, it would have given opportunity to the Board to meet that case and to produce all the evidence in that connection in their possession. The question raised is one primarily of fact; and it was never raised, nor explored in the High Court on proper pleadings. It would be taking the Board by surprise to allow the appellant to make out this new case at this stage. We, therefore, refuse to consider the question whether the order passed against the appellant pursuant to the resolution dated October 18, 1954 was for dismissal of the appellant from the service of the Board, as a punishment for misconduct. | 0 | 5,070 | 945 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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the matter of promotion, as well as against orders of dismissal. The orders imposing fine, suspension, reduction or supersession are ex facie orders of punishment, and there is no reason why the order of dismissal which occurs in the same clause, and which is subject to appeal is not an order of that nature. The fourth proviso also confers a similar right of appeal against the order of the Board dismissing certain superior servants. An appeal against an order of mere determination of employment, which may generally by made in the exigencies of the services may serve no useful purpose. Provision of a right of appeal is indicative of the nature of the order. In our view it is competent under S. 84 read with S. 172(2) to the State Government to make rules imposing conditions on the appointment and punishment of persons to offices or to any particular office requiring professional skill and to provide generally the conditions under which the servants of the Board are to serve, and in the exercise of the powers which are vested by S. 82, these rules have an overriding effect. An order of determination of employment which is not of the nature of an order of dismissal, has by virtue of the rules framed under cl. (d) of S. 84 to be exercised consistently with R. 3A. and an order of dismissal involving punishment must be exercised consistently with the rule or regulation framed under the Notification dated March 25, 1946 under S. 84 (b) and (d). We, therefore, hold that the Board had the power to determine the employment of the appellant and the Board purported to exercise that power. But counsel for the appellant contented that even though in form the power of determination of employment was exercised, in substance it was intended to exercise the power of dismissal and that the form of the resolution of the Board was merely to camouflage the real object of the Board. It is settled law that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely to camouflage an order of dismissal for misconduct, and it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form merely of determination of employment is in reality a cloak for an order of dismissal as a matter of punishment, the Court would not be debarred merely because of the form of the order in giving effect to the rights conferred by statutory rules upon the employee. 14. Counsel for the appellant pointed out that in the affidavit filed on behalf of the Board, the entire service-sheet of the appellant since the year 1945 was set out. The affidavit refers to the censure administered to the appellant for neglect of duty on March 25, 1945, to the order of dismissal of the appellant from service on a finding by the Public Works Committee that he was guilty of negligence and unfaithfulness in 1948, to the comments made by the Chairman of the Board in 1947 that the appellant had not proved himself to be a loyal and faithful servant and to stoppage of increments of the appellant by an order of the President of the Board in 1953 and 1954. Reliance is then placed upon paragraph 21 of the affidavit of the Board in which it was stated that the plea of the appellant that he had honestly and faithfully discharged his duties but the District Board has capriciously and without any justification terminated the services of the appellant was untrue and it was asserted that the services of the appellant had been justifiably terminated. It must, however, be observed that in the petition the appellant challenged the validity of the order terminating his services on the ground firstly that the Board had no power to terminate his employment and secondly that it was not justified in terminating the employment. It was never contended that the order terminating the employment was one in reality of the nature of dismissal as punishment and the form used in the resolution of the Board was merely to camouflage the real object of the Board. Averment in the petition that the Board had acted capriciously and without any justification does not amount to a plea that the order was intended to be one of dismissal though in form one of determination of employment. It also does not appear to have been argued before the Division Bench that the impugned resolution was in reality one of dismissal. Mootham, C. J., in delivering the judgment of the Court dealt with the only argument advanced before the Court, viz, that although the Board had the power to punish or dismiss the appellant it had no power otherwise to terminate his service in the absence of a special contract which did not exist in this case. If the appellant had in his petition pleaded the case that the order though in the form of determination of employment was intended to be one of dismissal as a matter of punishment and the form was adopted merely to conceal the true object of the Board, it would have given opportunity to the Board to meet that case and to produce all the evidence in that connection in their possession. The question raised is one primarily of fact; and it was never raised, nor explored in the High Court on proper pleadings. It would be taking the Board by surprise to allow the appellant to make out this new case at this stage. We, therefore, refuse to consider the question whether the order passed against the appellant pursuant to the resolution dated October 18, 1954 was for dismissal of the appellant from the service of the Board, as a punishment for misconduct.
### Response:
0
### Explanation:
In our view it is competent under S. 84 read with S. 172(2) to the State Government to make rules imposing conditions on the appointment and punishment of persons to offices or to any particular office requiring professional skill and to provide generally the conditions under which the servants of the Board are to serve, and in the exercise of the powers which are vested by S. 82, these rules have an overriding effect. An order of determination of employment which is not of the nature of an order of dismissal, has by virtue of the rules framed under cl. (d) of S. 84 to be exercised consistently with R. 3A. and an order of dismissal involving punishment must be exercised consistently with the rule or regulation framed under the Notification dated March 25, 1946 under S. 84 (b) and (d). We, therefore, hold that the Board had the power to determine the employment of the appellant and the Board purported to exercise that power. But counsel for the appellant contented that even though in form the power of determination of employment was exercised, in substance it was intended to exercise the power of dismissal and that the form of the resolution of the Board was merely to camouflage the real object of the Board. It is settled law that the form of the order under which the employment of a servant is determined is not conclusive of the true nature of the order. The form may be merely to camouflage an order of dismissal for misconduct, and it is always open to the court before which the order is challenged to go behind the form and ascertain the true character of the order. If the Court holds that the order though in the form merely of determination of employment is in reality a cloak for an order of dismissal as a matter of punishment, the Court would not be debarred merely because of the form of the order in giving effect to the rights conferred by statutory rules upon the employee14. Counsel for the appellant pointed out that in the affidavit filed on behalf of the Board, the entire service-sheet of the appellant since the year 1945 was set out. The affidavit refers to the censure administered to the appellant for neglect of duty on March 25, 1945, to the order of dismissal of the appellant from service on a finding by the Public Works Committee that he was guilty of negligence and unfaithfulness in 1948, to the comments made by the Chairman of the Board in 1947 that the appellant had not proved himself to be a loyal and faithful servant and to stoppage of increments of the appellant by an order of the President of the Board in 1953 and 1954. Reliance is then placed upon paragraph 21 of the affidavit of the Board in which it was stated that the plea of the appellant that he had honestly and faithfully discharged his duties but the District Board has capriciously and without any justification terminated the services of the appellant was untrue and it was asserted that the services of the appellant had been justifiably terminated. It must, however, be observed that in the petition the appellant challenged the validity of the order terminating his services on the ground firstly that the Board had no power to terminate his employment and secondly that it was not justified in terminating the employment. It was never contended that the order terminating the employment was one in reality of the nature of dismissal as punishment and the form used in the resolution of the Board was merely to camouflage the real object of the Board. Averment in the petition that the Board had acted capriciously and without any justification does not amount to a plea that the order was intended to be one of dismissal though in form one of determination of employment. It also does not appear to have been argued before the Division Bench that the impugned resolution was in reality one of dismissal. Mootham, C. J., in delivering the judgment of the Court dealt with the only argument advanced before the Court, viz, that although the Board had the power to punish or dismiss the appellant it had no power otherwise to terminate his service in the absence of a special contract which did not exist in this case. If the appellant had in his petition pleaded the case that the order though in the form of determination of employment was intended to be one of dismissal as a matter of punishment and the form was adopted merely to conceal the true object of the Board, it would have given opportunity to the Board to meet that case and to produce all the evidence in that connection in their possession. The question raised is one primarily of fact; and it was never raised, nor explored in the High Court on proper pleadings. It would be taking the Board by surprise to allow the appellant to make out this new case at this stage. We, therefore, refuse to consider the question whether the order passed against the appellant pursuant to the resolution dated October 18, 1954 was for dismissal of the appellant from the service of the Board, as a punishment for misconduct.
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Amruta Vs. State of Maharashtra | O. CHINNAPPA REDDY, J.1. The appellant, Amruta was convicted, by the learned Additional Sessions Judge, Beed of committing the murders of his wife, Janabai and daughter, Shashikala. He was sentenced to death. The High Court having confirmed the conviction and sentence, the appellant has preferred, this appeal by special leave under Art. 136 of the Constitution. The prosecution case briefly was that there were frequent quarrels between Amruta, the accused and his wife, Janabai for the last one and a half years, as the accused suspected he chastity. Since about two week before the occurrence, Janabai with her daughter, Shashikala had gone away to the house of her parents and was staying with them. On June 28, 1981, Janabai with her daughter, Shashikala (aged about 6 years) had gone to the field of one of her relatives to reap Jowar crop in the field. Her relative Parubai (P.W. 11), a young girl about 12 years was also with them. While so, the accused, Amruta came there and asked Janabai to go with him to the brook to wash clothes. Janabai and Shashikala went with him while Parubai continued the work of reaping. In a short while, she heard the cries of Shashikala. She ran towards the side from where she heard the cries. She saw Janabai lying in the channel with a bleeding injury on the neck. She also saw the accused delivering a blow on the head of Shashikala with an axe. When she tried to protest the accused threatened and chased her and so she ran way. When she reached the Durgah, she saw Syed Abbas there and told him about the occurrence. She then went home, and informed her mother and others. Her uncle Nana reported the occurrence to the Police and thereafter investigation proceeded.2. The case against the accused, as evident from the facts mentioned in the previous paragraph, rests primarily on the evidence of the sole eye witness, Parubai. Her evidence has been accepted by the learned Sessions Judge and by the High Court and we have not been shown any reason why she should be disbelieved. We have ourselves gone through her evidence and we think that the learned Sessions Judge and the High Court and we have not been shown any reason why she should be disbelieved. We have ourselves gone through her evidence and we think that the learned Sessions Judge and the High Court were right in accepting her evidence as true. There are as few minor discrepancies but they are on totally immaterial points. Her evidence has also been fully corroborated by the evidence of Syed Abbas, who was informed by her about the occurrence within almost a few seconds. Syed Abbas stated that Parubai came running to the Durgah and told him that Amruta had killed Janabai and Shashikala with an axe and that he had also chased her. In fact, according to Syed Abbas, he even saw the accused with an axe in his hand. In cross-examination, it was elicited from Syed Abbas that he did not tell the Police that Parubai came to the Durgah and told him that the accused had killed Janabai and her daughter, Shashikala in the field of Nana with an axe. The statement made by Syed Abbas to the Police is part of the record before us and we find that Syed Abbas had in fact told the Police that Parubai had come to the Durgah and told him that the accused had killed Janabai and her daughter Shashikala by assaulting them with an axe and that he had also chased her. It is clear that the question put to the witness. Syed Abbas in cross-examination was a misleading question and it is a pity that the learned Additional Sessions Judge was not more watchful and allowed such a misleading question to be put to the witness. We are satisfied that Parubai is a truthful witness and that he evidence is worthy of acceptance without hesitation. The conviction has to be confirmed.3. We have anxiously considered the question of sentence. While on the one hand, it is clear that the murders were premeditated and there was really no justification whatsoever for the murder of Shashikala, on the other hand, we have the circumstances that the accused and the deceased, Janabai were frequently quarrelling and the accused suspected the chastity of his wife. Janabai had in fact left the house of the accused with her daughter about two weeks prior to the occurrence. We do not know that there was any basis for the suspicion entertained by the accused regarding Janabais chastity, but we do know that accused regarding Janabais chastity, but we do know that : accused nurtured and was labouring under a sense of grievance and was often dejected and moody presumably because of his suspicions. He was apparently inclined to brood over the wrong suspected by him to have been done to him. While no one can hold a brief for a modern Othello, we cannot also lose sight of the fact that sexual jealousy and injured vanity often combine together to furnish powerful motive for murder, particularly among rustic rural folk to which class the accused belongs. | 1[ds]We have ourselves gone through her evidence and we think that the learned Sessions Judge and the High Court were right in accepting her evidence as true. There are as few minor discrepancies but they are on totally immaterial points. Her evidence has also been fully corroborated by the evidence of Syed Abbas, who was informed by her about the occurrence within almost a few seconds. Syed Abbas stated that Parubai came running to the Durgah and told him that Amruta had killed Janabai and Shashikala with an axe and that he had also chased her. In fact, according to Syed Abbas, he even saw the accused with an axe in hisis clear that the question put to the witness. Syed Abbas inwas a misleading question and it is a pity that the learned Additional Sessions Judge was not more watchful and allowed such a misleading question to be put to the witness. We are satisfied that Parubai is a truthful witness and that he evidence is worthy of acceptance without hesitation. The conviction has to beon the one hand, it is clear that the murders were premeditated and there was really no justification whatsoever for the murder of Shashikala, on the other hand, we have the circumstances that the accused and the deceased, Janabai were frequently quarrelling and the accused suspected the chastity of his wife. Janabai had in fact left the house of the accused with her daughter about two weeks prior to the occurrence. We do not know that there was any basis for the suspicion entertained by the accused regarding Janabais chastity, but we do know that accused regarding Janabais chastity, but we do know that : accused nurtured and was labouring under a sense of grievance and was often dejected and moody presumably because of his suspicions. He was apparently inclined to brood over the wrong suspected by him to have been done to him. While no one can hold a brief for a modern Othello, we cannot also lose sight of the fact that sexual jealousy and injured vanity often combine together to furnish powerful motive for murder, particularly among rustic rural folk to which class the accused belongs. | 1 | 951 | 393 | ### 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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O. CHINNAPPA REDDY, J.1. The appellant, Amruta was convicted, by the learned Additional Sessions Judge, Beed of committing the murders of his wife, Janabai and daughter, Shashikala. He was sentenced to death. The High Court having confirmed the conviction and sentence, the appellant has preferred, this appeal by special leave under Art. 136 of the Constitution. The prosecution case briefly was that there were frequent quarrels between Amruta, the accused and his wife, Janabai for the last one and a half years, as the accused suspected he chastity. Since about two week before the occurrence, Janabai with her daughter, Shashikala had gone away to the house of her parents and was staying with them. On June 28, 1981, Janabai with her daughter, Shashikala (aged about 6 years) had gone to the field of one of her relatives to reap Jowar crop in the field. Her relative Parubai (P.W. 11), a young girl about 12 years was also with them. While so, the accused, Amruta came there and asked Janabai to go with him to the brook to wash clothes. Janabai and Shashikala went with him while Parubai continued the work of reaping. In a short while, she heard the cries of Shashikala. She ran towards the side from where she heard the cries. She saw Janabai lying in the channel with a bleeding injury on the neck. She also saw the accused delivering a blow on the head of Shashikala with an axe. When she tried to protest the accused threatened and chased her and so she ran way. When she reached the Durgah, she saw Syed Abbas there and told him about the occurrence. She then went home, and informed her mother and others. Her uncle Nana reported the occurrence to the Police and thereafter investigation proceeded.2. The case against the accused, as evident from the facts mentioned in the previous paragraph, rests primarily on the evidence of the sole eye witness, Parubai. Her evidence has been accepted by the learned Sessions Judge and by the High Court and we have not been shown any reason why she should be disbelieved. We have ourselves gone through her evidence and we think that the learned Sessions Judge and the High Court and we have not been shown any reason why she should be disbelieved. We have ourselves gone through her evidence and we think that the learned Sessions Judge and the High Court were right in accepting her evidence as true. There are as few minor discrepancies but they are on totally immaterial points. Her evidence has also been fully corroborated by the evidence of Syed Abbas, who was informed by her about the occurrence within almost a few seconds. Syed Abbas stated that Parubai came running to the Durgah and told him that Amruta had killed Janabai and Shashikala with an axe and that he had also chased her. In fact, according to Syed Abbas, he even saw the accused with an axe in his hand. In cross-examination, it was elicited from Syed Abbas that he did not tell the Police that Parubai came to the Durgah and told him that the accused had killed Janabai and her daughter, Shashikala in the field of Nana with an axe. The statement made by Syed Abbas to the Police is part of the record before us and we find that Syed Abbas had in fact told the Police that Parubai had come to the Durgah and told him that the accused had killed Janabai and her daughter Shashikala by assaulting them with an axe and that he had also chased her. It is clear that the question put to the witness. Syed Abbas in cross-examination was a misleading question and it is a pity that the learned Additional Sessions Judge was not more watchful and allowed such a misleading question to be put to the witness. We are satisfied that Parubai is a truthful witness and that he evidence is worthy of acceptance without hesitation. The conviction has to be confirmed.3. We have anxiously considered the question of sentence. While on the one hand, it is clear that the murders were premeditated and there was really no justification whatsoever for the murder of Shashikala, on the other hand, we have the circumstances that the accused and the deceased, Janabai were frequently quarrelling and the accused suspected the chastity of his wife. Janabai had in fact left the house of the accused with her daughter about two weeks prior to the occurrence. We do not know that there was any basis for the suspicion entertained by the accused regarding Janabais chastity, but we do know that accused regarding Janabais chastity, but we do know that : accused nurtured and was labouring under a sense of grievance and was often dejected and moody presumably because of his suspicions. He was apparently inclined to brood over the wrong suspected by him to have been done to him. While no one can hold a brief for a modern Othello, we cannot also lose sight of the fact that sexual jealousy and injured vanity often combine together to furnish powerful motive for murder, particularly among rustic rural folk to which class the accused belongs.
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We have ourselves gone through her evidence and we think that the learned Sessions Judge and the High Court were right in accepting her evidence as true. There are as few minor discrepancies but they are on totally immaterial points. Her evidence has also been fully corroborated by the evidence of Syed Abbas, who was informed by her about the occurrence within almost a few seconds. Syed Abbas stated that Parubai came running to the Durgah and told him that Amruta had killed Janabai and Shashikala with an axe and that he had also chased her. In fact, according to Syed Abbas, he even saw the accused with an axe in hisis clear that the question put to the witness. Syed Abbas inwas a misleading question and it is a pity that the learned Additional Sessions Judge was not more watchful and allowed such a misleading question to be put to the witness. We are satisfied that Parubai is a truthful witness and that he evidence is worthy of acceptance without hesitation. The conviction has to beon the one hand, it is clear that the murders were premeditated and there was really no justification whatsoever for the murder of Shashikala, on the other hand, we have the circumstances that the accused and the deceased, Janabai were frequently quarrelling and the accused suspected the chastity of his wife. Janabai had in fact left the house of the accused with her daughter about two weeks prior to the occurrence. We do not know that there was any basis for the suspicion entertained by the accused regarding Janabais chastity, but we do know that accused regarding Janabais chastity, but we do know that : accused nurtured and was labouring under a sense of grievance and was often dejected and moody presumably because of his suspicions. He was apparently inclined to brood over the wrong suspected by him to have been done to him. While no one can hold a brief for a modern Othello, we cannot also lose sight of the fact that sexual jealousy and injured vanity often combine together to furnish powerful motive for murder, particularly among rustic rural folk to which class the accused belongs.
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M. P. Shreevastava Vs. Mrs. Veena | the expression "Court executing the decree" as used in S.47, C. P. Code means a "Court which is seized of an application for execution of a decree at the instance of the decree-holder". Section 47 enacts the salutary rule that all questions relating to execution, discharge or satisfaction of the decree shall be determined not by a separate suit, but in execution of the decree. The power so conferred may not be limited by any strained or artificial construction of the words "Court executing the decree". The expression "Court executing the decree" has not been defined, and having regard to the scheme of the Code it cannot have a limited meaning, as argued by counsel for the appellant. The principle of the section is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit: it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder or by the judgment-debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise. An application made by the judgment-debtor which raises a question relating to execution, discharge or satisfaction of a decree in a suit to which he, or the person of whom he is representative, was a party is an application before the Court executing the decree, and must be tried in that Court. 8. There is a catena of cases in which it has been held that S.244 of the Code of 1882 and S.47 of Code of 1908 apply to disputes arising between the parties contemplated by those sections in relation to a decree were after it has been executed. In Imdad Ali v. Jagan Lal, (1895) ILR 17 All 478, a decree for possession was executed against the heir of a defendant (who had died during the pendency of a suit) without notice to him. The heir then applied to the Court which had executed the decree for an order restoring him to possession. At the date of application by the heir no application to enforce the decree by the decree-holder was pending. The High Court of Allahabad held that the application was maintainable. 9. In Dhan Kunwar v. Mahtab Singh, (l900) ILR 22 All 79, an application by the Judgment-debtor to recover an amount found to be in excess of the amount lawfully due, the decree having been amended since the execution, was held maintainable under S. 244 of the Code of 1882. 10. In Collector of Jaunpur v. Bithal Das, ILR 24 All 291, it was held that an application to recover from a decree-holder the proceeds of a sale in execution, such sale having been set aside, falls within Section 244, C. P. Code. 1882. It was observed by the Court that S. 244 "applies as well to a dispute arising between the parties after the decree has been executed, as it does to a dispute arising between them previous to execution." 11. In Gopal Rai v. Rambhajan Rai, ILR 1 Pat .336: (AIR 1922 Pat 166 ), an application for refund of the decretal amount paid into Court by the judgment-debtor, after the decree had been satisfied by payment made by another judgment-debtor was held maintainable under S. 47, C. P. Code against the decree-holder who had withdrawn the amount. 12. In B. V. Patankar v. C. G. Sastry, (1961) 1 SCR 591 : (AIR 1961 SC 272 ), this Court held that an application by the judgment-debtor for all order for restoration of possession of property from which the judgment-debtor was evicted without notice, in execution of a decree which had become unenforceable, because of the Mysore House Rent and Accommodation Control Order,1948, was maintainable. 13. It is not necessary to multiply cases and they are many-in which applications by judgment-debtors raising questions relating to execution, discharge or satisfaction not falling within O. 21, R. 2 were held maintainable, and absence of a proceeding by the decree-holder to execute the decree was held not to be a bar to the maintainability of the applications. In our view, the High Court of Madras was right in its interpretation of S. 244 of the Code of Civil Procedure, 1882, when they observed in Erusappa Mudaliar v. Commercial and Land Mortgage Bank Ltd., (1900) ILR 23 Mad 377 at p. 380:"We are unable to accede to the contention made x x that, with reference to the terms of S. 244, the question raised by the petition could only be raised in answer to a claim mad x x on an application x x for execution. That section simply provides that questions arising between the parties to the suit and relating to the execution, discharge or satisfaction of the decree shall be determined by order of the Court executing the decree and not by separate suit. We cannot construe the words "a Court executing a decree" as meaning x x that the section only covers cases of proceedings initiated by decree-holder and does not include applications (relating to the execution, discharge or satisfaction of the decree) made the judgment-debtor." We are unable to hold that the dictum of the Punjab High Court in Mst. Bhagwani v. Lakhim Ram, AIR 1960 Punj 437 (438) that as no execution proceedings (at the instance of the decree-holder) were pending, the Court (which was called upon to determine whether there was an adjustment of decree by an executory contract) could not be regarded as one which was executing the decree" is correct. There is, in our judgment no antithesis between S. 47 and O. 21, R. 2: the former clears with the power of the Court and the latter with the procedure to be followed in respect of a limited class of cases relating to discharge or satisfaction of decrees. | 0[ds]5. But it was said that the respondent could not maintain an application for recording adjustment of the decree. Under O. 21 R. 2 C. P. Code, nor could she maintain an application for recording satisfaction of the decree for restitution of conjugal rights so long as the husband did not apply to execute the decree. or did not claim a decree for divorce under Section 27 of the Special Marriages Act. O. 21 R. 2 prescribes the procedure for recording payment of money under any decree or for adjustment of any decree to the satisfaction of the decree-holder. If any money payable under a decree of any kind is paid out of Court or the decree is otherwise adjusted in whole or in part to the satisfaction of the decree-holder, the decrees holder is enjoined by R. 2(1) of O. 21 to certify such payment or adjustment to the Court: the judgment-debtor may also inform the Court of such payment or adjustment and it may be recorded after enquiry: R. 2 (2) of O. 21. In the present case, however, there is no adjustment. Adjustment contemplates mutual agreement, and in the present case, there is no evidence of any consent on the part of the appellant who was never willing to take back the wife and resume conjugal relations. Order 21 R. 2 contemplate adjustment of the decree by consent-express or implied- of the parties where there is no such consent. O. 21 R. 2 does not apply6. But O. 21 R. 2 prescribes a special procedure for recording, adjustment of a decree, or for recording payment of money paid out of Court under any decree. However the plenary power conferred by S. 47 C. P. Code upon the Court executing the decree to determine all questions arising between the parties to the suit in which the decree was passed, and relating to execution, discharge or satisfaction of the decree, is not thereby affected. Whereas O. 21 R. 2 deals with the procedure to be followed in a limited class of cases relating to discharge or satisfaction of decrees, where there has been payment of money or adjustment or satisfaction of the decree by consensual arrangement, S. 47 C. P. Code deals with the power of the Court executing the decree7. Counsel for the appellant does not deny to the Court executing the decree power to decide all questions relating to execution, discharge or satisfaction of the decree arising between the parties to the suit in which the decree was passed, but contends that since the power to record discharge or satisfaction of a decree is exercisable only by the Court executing the decree no substantive petition lies at the instance of the person against whom a decree is passed to record adjustment or satisfaction so long as the decree-holder has not applied for execution. Counsel says that the expression "Court executing the decree" means the "Court which is executing the decree at the instance of the decree-holder" and in support of his contention relies upon the different expressions used in O. 21, Rr. 1 and 2, C. P. Code. He points out that under O. 21. R. 1 (1) (a) money payable under a decree may be paid into the Court whose duty it is to execute the decree. Similarly an application under Cl. (1) or Cl. (2) of R. 2, O. 21 for recording, payment of money under or adjustment of a decree has to be made to the Court whose dusty it is to execute the decree, whereas prohibition against recognition of an uncertified payment or adjustment is imposed upon the Court executing the decree by sub-r. (3).There is no doubt that the expression "Court whose duty it is to execute the decree" means a Court which is under the law competent to, and when requested bound to, execute the decree which is in law enforceable, and where an application is made under O.21, R.1 (1) (a) or under O.21, R.2 (1) or (2) there need (not?) be substantive application for execution pending. It also appears, from the terms of Cl. (3) of O.21, R 2, that the prohibition is against the Court executing the decree. But there is no warrant for the argument that the expression "Court executing the decree" as used in S.47, C. P. Code means a "Court which is seized of an application for execution of a decree at the instance of the decree-holder". Section 47 enacts the salutary rule that all questions relating to execution, discharge or satisfaction of the decree shall be determined not by a separate suit, but in execution of the decree. The power so conferred may not be limited by any strained or artificial construction of the words "Court executing the decree". The expression "Court executing the decree" has not been defined, and having regard to the scheme of the Code it cannot have a limited meaning, as argued by counsel for the appellant. The principle of the section is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit: it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder or by the judgment-debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise. An application made by the judgment-debtor which raises a question relating to execution, discharge or satisfaction of a decree in a suit to which he, or the person of whom he is representative, was a party is an application before the Court executing the decree, and must be tried in that CourtWe are unable to hold that the dictum of the Punjab High Court in Mst. Bhagwani v. Lakhim Ram, AIR 1960 Punj 437 (438) that as no execution proceedings (at the instance of the decree-holder) were pending, the Court (which was called upon to determine whether there was an adjustment of decree by an executory contract) could not be regarded as one which was executing the decree" is correct. There is, in our judgment no antithesis between S. 47 and O. 21, R. 2: the former clears with the power of the Court and the latter with the procedure to be followed in respect of a limited class of cases relating to discharge or satisfaction of decrees4. It was never argued on behalf of the appellant in the Court of First Instance and the High Court that attempts proved to have been made by the respondent to resume conjugal relations could not in law amount to satisfaction of the decree, and we do not think we would be justified at this stage in allowing that question to be raised for the first time in this Court. | 0 | 2,687 | 1,306 | ### 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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the expression "Court executing the decree" as used in S.47, C. P. Code means a "Court which is seized of an application for execution of a decree at the instance of the decree-holder". Section 47 enacts the salutary rule that all questions relating to execution, discharge or satisfaction of the decree shall be determined not by a separate suit, but in execution of the decree. The power so conferred may not be limited by any strained or artificial construction of the words "Court executing the decree". The expression "Court executing the decree" has not been defined, and having regard to the scheme of the Code it cannot have a limited meaning, as argued by counsel for the appellant. The principle of the section is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit: it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder or by the judgment-debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise. An application made by the judgment-debtor which raises a question relating to execution, discharge or satisfaction of a decree in a suit to which he, or the person of whom he is representative, was a party is an application before the Court executing the decree, and must be tried in that Court. 8. There is a catena of cases in which it has been held that S.244 of the Code of 1882 and S.47 of Code of 1908 apply to disputes arising between the parties contemplated by those sections in relation to a decree were after it has been executed. In Imdad Ali v. Jagan Lal, (1895) ILR 17 All 478, a decree for possession was executed against the heir of a defendant (who had died during the pendency of a suit) without notice to him. The heir then applied to the Court which had executed the decree for an order restoring him to possession. At the date of application by the heir no application to enforce the decree by the decree-holder was pending. The High Court of Allahabad held that the application was maintainable. 9. In Dhan Kunwar v. Mahtab Singh, (l900) ILR 22 All 79, an application by the Judgment-debtor to recover an amount found to be in excess of the amount lawfully due, the decree having been amended since the execution, was held maintainable under S. 244 of the Code of 1882. 10. In Collector of Jaunpur v. Bithal Das, ILR 24 All 291, it was held that an application to recover from a decree-holder the proceeds of a sale in execution, such sale having been set aside, falls within Section 244, C. P. Code. 1882. It was observed by the Court that S. 244 "applies as well to a dispute arising between the parties after the decree has been executed, as it does to a dispute arising between them previous to execution." 11. In Gopal Rai v. Rambhajan Rai, ILR 1 Pat .336: (AIR 1922 Pat 166 ), an application for refund of the decretal amount paid into Court by the judgment-debtor, after the decree had been satisfied by payment made by another judgment-debtor was held maintainable under S. 47, C. P. Code against the decree-holder who had withdrawn the amount. 12. In B. V. Patankar v. C. G. Sastry, (1961) 1 SCR 591 : (AIR 1961 SC 272 ), this Court held that an application by the judgment-debtor for all order for restoration of possession of property from which the judgment-debtor was evicted without notice, in execution of a decree which had become unenforceable, because of the Mysore House Rent and Accommodation Control Order,1948, was maintainable. 13. It is not necessary to multiply cases and they are many-in which applications by judgment-debtors raising questions relating to execution, discharge or satisfaction not falling within O. 21, R. 2 were held maintainable, and absence of a proceeding by the decree-holder to execute the decree was held not to be a bar to the maintainability of the applications. In our view, the High Court of Madras was right in its interpretation of S. 244 of the Code of Civil Procedure, 1882, when they observed in Erusappa Mudaliar v. Commercial and Land Mortgage Bank Ltd., (1900) ILR 23 Mad 377 at p. 380:"We are unable to accede to the contention made x x that, with reference to the terms of S. 244, the question raised by the petition could only be raised in answer to a claim mad x x on an application x x for execution. That section simply provides that questions arising between the parties to the suit and relating to the execution, discharge or satisfaction of the decree shall be determined by order of the Court executing the decree and not by separate suit. We cannot construe the words "a Court executing a decree" as meaning x x that the section only covers cases of proceedings initiated by decree-holder and does not include applications (relating to the execution, discharge or satisfaction of the decree) made the judgment-debtor." We are unable to hold that the dictum of the Punjab High Court in Mst. Bhagwani v. Lakhim Ram, AIR 1960 Punj 437 (438) that as no execution proceedings (at the instance of the decree-holder) were pending, the Court (which was called upon to determine whether there was an adjustment of decree by an executory contract) could not be regarded as one which was executing the decree" is correct. There is, in our judgment no antithesis between S. 47 and O. 21, R. 2: the former clears with the power of the Court and the latter with the procedure to be followed in respect of a limited class of cases relating to discharge or satisfaction of decrees.
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of such payment or adjustment and it may be recorded after enquiry: R. 2 (2) of O. 21. In the present case, however, there is no adjustment. Adjustment contemplates mutual agreement, and in the present case, there is no evidence of any consent on the part of the appellant who was never willing to take back the wife and resume conjugal relations. Order 21 R. 2 contemplate adjustment of the decree by consent-express or implied- of the parties where there is no such consent. O. 21 R. 2 does not apply6. But O. 21 R. 2 prescribes a special procedure for recording, adjustment of a decree, or for recording payment of money paid out of Court under any decree. However the plenary power conferred by S. 47 C. P. Code upon the Court executing the decree to determine all questions arising between the parties to the suit in which the decree was passed, and relating to execution, discharge or satisfaction of the decree, is not thereby affected. Whereas O. 21 R. 2 deals with the procedure to be followed in a limited class of cases relating to discharge or satisfaction of decrees, where there has been payment of money or adjustment or satisfaction of the decree by consensual arrangement, S. 47 C. P. Code deals with the power of the Court executing the decree7. Counsel for the appellant does not deny to the Court executing the decree power to decide all questions relating to execution, discharge or satisfaction of the decree arising between the parties to the suit in which the decree was passed, but contends that since the power to record discharge or satisfaction of a decree is exercisable only by the Court executing the decree no substantive petition lies at the instance of the person against whom a decree is passed to record adjustment or satisfaction so long as the decree-holder has not applied for execution. Counsel says that the expression "Court executing the decree" means the "Court which is executing the decree at the instance of the decree-holder" and in support of his contention relies upon the different expressions used in O. 21, Rr. 1 and 2, C. P. Code. He points out that under O. 21. R. 1 (1) (a) money payable under a decree may be paid into the Court whose duty it is to execute the decree. Similarly an application under Cl. (1) or Cl. (2) of R. 2, O. 21 for recording, payment of money under or adjustment of a decree has to be made to the Court whose dusty it is to execute the decree, whereas prohibition against recognition of an uncertified payment or adjustment is imposed upon the Court executing the decree by sub-r. (3).There is no doubt that the expression "Court whose duty it is to execute the decree" means a Court which is under the law competent to, and when requested bound to, execute the decree which is in law enforceable, and where an application is made under O.21, R.1 (1) (a) or under O.21, R.2 (1) or (2) there need (not?) be substantive application for execution pending. It also appears, from the terms of Cl. (3) of O.21, R 2, that the prohibition is against the Court executing the decree. But there is no warrant for the argument that the expression "Court executing the decree" as used in S.47, C. P. Code means a "Court which is seized of an application for execution of a decree at the instance of the decree-holder". Section 47 enacts the salutary rule that all questions relating to execution, discharge or satisfaction of the decree shall be determined not by a separate suit, but in execution of the decree. The power so conferred may not be limited by any strained or artificial construction of the words "Court executing the decree". The expression "Court executing the decree" has not been defined, and having regard to the scheme of the Code it cannot have a limited meaning, as argued by counsel for the appellant. The principle of the section is that all questions relating to execution, discharge or satisfaction of a decree and arising between the parties to the suit in which the decree is passed, shall be determined in the execution proceeding, and not by a separate suit: it follows as a corollary that a question relating to execution, discharge or satisfaction of a decree may be raised by the decree-holder or by the judgment-debtor in the execution department and that pendency of an application for execution by the decree-holder is not a condition of its exercise. An application made by the judgment-debtor which raises a question relating to execution, discharge or satisfaction of a decree in a suit to which he, or the person of whom he is representative, was a party is an application before the Court executing the decree, and must be tried in that CourtWe are unable to hold that the dictum of the Punjab High Court in Mst. Bhagwani v. Lakhim Ram, AIR 1960 Punj 437 (438) that as no execution proceedings (at the instance of the decree-holder) were pending, the Court (which was called upon to determine whether there was an adjustment of decree by an executory contract) could not be regarded as one which was executing the decree" is correct. There is, in our judgment no antithesis between S. 47 and O. 21, R. 2: the former clears with the power of the Court and the latter with the procedure to be followed in respect of a limited class of cases relating to discharge or satisfaction of decrees4. It was never argued on behalf of the appellant in the Court of First Instance and the High Court that attempts proved to have been made by the respondent to resume conjugal relations could not in law amount to satisfaction of the decree, and we do not think we would be justified at this stage in allowing that question to be raised for the first time in this Court.
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Shri Bam Development Vs. Smt. Sarla Prashar and Another | Bam Dev through the Jan Sangh Party. 6. Reliance was also placed on the evidence of witnesses who deposited that there was an arrangement between Bam Dev and Munshi Ram that the former will meet the election expenses of the latter. Charanjit Lal and Khushal Singh have deposited to that effect. Part of the evidence is hearsay and should not have been admitted. Even otherwise, the evidence was so infirm that no reliance be placed upon that evidence. The two witnesses admitted that they were ordered by their party organization to appear as witnesses and to support the case of the first respondent. The story was again not put in cross-examination to Munshi Ram who was examined as a witness more than a week after the two witnesses were examined in Court. 7. The third payment of Rs. 18/- on which reliance has been placed requires a detailed analysis of the evidence. It was claimed by the first respondent that Rs. 125/- were paid by Bam Dev to Kapila Printing Press on January 31, 1969, for getting posters printed for Munshi Ram. At the trial counsel for the first respondent said that there was no evidence in support of the case except as to the amount of Rs. 18/- which it was alleged was paid by Bam Dev to the Kapila Printing Press on account of Bill (Ex. P.W. 6/3) drawn in favour of Munshi Ram. The owner of the Kapila Printing Press, Atma Ram deposited that Bam Dev did not get any printing work done by him during the mid-term election, but work was got done by the Jan Sangh Party; that Munshi Ram had also got some work done at his printing press; that he has brought the relevant record; that the credit memo, a carbon copy of which had been marked as Ex. P.W. 6/1 was issued by him and that pertained to the printing done for the Jan Sangh Party; Ex. P.W. 6/2 was a carbon copy of the credit voucher of Munshi Ram; Ex. P.W. 6/3 was the original of Ex. P.W. 6/2. He further deposited that the payment regarding Ex. P.W. 6/3 was made by Munshi Ram and those bills related to the material published regarding the election in the mid-term poll. Atma Ram P.W. 6 was examined on behalf of the first respondent. The witness was not sought to be treated as hostile and his testimony completely destroyed the case of the first respondent. 8. Munshi Ram stated that he ordered that a pamphlet be printed. In respect of that pamphlet Ex. P.W. 6/3 was issued and that he (Munshi Ram) had made the payment and not Bam Dev. Bam Dev also bore similar testimony. In respect of this part of the case the first respondent had no personal knowledge. The oral testimony and the contents of the receipt Ex. P.W. 6/3 clearly established that the bill related to a pamphlet published by Munshi Ram and not by Bam Dev. 9. Bam Dev had, however, included an amount of Rs. 18/- paid on January 31, 1969, to the Kapila Printing Press and this apparently related to Ex. P.W. 6/3. Bam Dev explained that there was a mistake committed by his accountant an including that amount in his election expenses. He asserted that he had not paid that amount. Bam Dev claimed that all the accounts were maintained by his election agent. We do not think that merely from the inclusion of the amount of Rs. 18/- paid to the Kapila Printing Press on January 31, 1969, in the account filed under Section 72 of the Representation of People Act of his election expenses, it must follow that Bam Dev had entered into an arrangement with Munshi Ram under which the latter agreed not to withdraw his candidature on promise or payment of a bribe. To make out a case under Section 123(1) of payment of a bribe or promised gratification to Munshi Ram with the object directly or indirectly of inducing Munshi Ram not to withdraw from being a candidate at the election, the oral evidence with regard to the payment of Rs. 18/- negative the plea. The case of Bam Dev that it was due to some mistake of his accountant that the voucher Ex. P.W. 6/3 was included in the election expenses is not improbable. Again there is no evidence to prove that payment was made with the object of directly inducing Munshi Ram to withdraw his candidature from the election. 10. The High Court observed that the following seven circumstances support the conclusion that there was such an arrangement. They are -(i) that Bam Dev was a candidate of the Jan Sangh Party; (ii) that the election office of Bam Dev and the Jan Sangh Party office were in the same building at Nangal; (iii) that out of the total number of vouchers, i.e., 156, filed with the return of the election expenses, 45 are drawn in the name of the Jan Sangh Party and that Bam Dev has admitted that the payment regarding these vouchers was made by him; (iv) that payment of Hazura Singh, P.W. 9 was made by the Jan Sangh Party; (v) that Bam Dev has not disclaimed that the Jan Sangh Party was actively helping him; (vi) that no money was paid to the workers by the Jan Sangh Party but the workers had money and they paid the price of petrol used in connection with election work of Bam Dev; and (vii) that though Bam Dev maintained accounts regarding his election expenses, he has not produced the same and also has not produced his election-in-charge who kept those accounts. No accounts was maintained by the Jan Sangh Party. These circumstances taken separately or collectively do not prove that Bam Dev had entered into a bargain with Munshi Ram by giving him any gift or offer to pay him any gratification in consideration of the latter agreeing not to withdraw his candidature from the election. | 1[ds]3. In our view the judgment of the High Court cannot be sustained. Ram Sarup deposited that his tonga was engaged by Munshi Ram for his election campaign; that he (Ram Sarup) used to "take the hire from the office of Bam Dev"; that the money was received from the President of Jan Sangh and "at that time Bam Dev was standing". This evidence does not support the case that the payment was made by Bam Dev "through the Jan Sangh". Munshi Ram was a candidate at the election. The testimony of witness Ram Sarup only establishes that payment for the tonga engaged by Munshi Ram was made by the President of the Jan Sangh Party.Mr. Hardev Singh on behalf of the first respondent contended that the Jan Sangh Party had no funds and Bam Dev alone was the financier of the Jan Sangh Party.On this part of the case our attention has not been invited to any evidence4. The testimony of Hazura Singh also is infirm. The witness stated that his "loudspeakers" were used by the Jan Sangh Party in them poll, and "a loudspeaker" was fitted to the tonga of Ram Sarup and the hire charge for the "loudspeaker" was paid by the Jan Sangh Party. He claimed that he had received as hire an amount of Rs. 1, 450/which was paid by the President of the Jan Sangh Party. The witness admitted that he maintained no accounts, and that he had no conversation with Bam Dev in regard to the payment. The testimony of the witness is unreliable and there is nothing to connect the alleged payment by the President of the Jan Sangh Party with Bam DevThe witness was not sought to be treated as hostile and his testimony completely destroyed the case of the first respondentThe oral testimony and the contents of the receipt Ex. P.W. 6/3 clearly established that the bill related to a pamphlet published by Munshi Ram and not by Bam Dev9. Bam Dev had, however, included an amount of Rs. 18/paid on January 31, 1969, to the Kapila Printing Press and this apparently related to Ex. P.W. 6/3. Bam Dev explained that there was a mistake committed by his accountant an including that amount in his election expenses. He asserted that he had not paid that amount. Bam Dev claimed that all the accounts were maintained by his election agent. We do not think that merely from the inclusion of the amount of Rs. 18/paid to the Kapila Printing Press on January 31, 1969, in the account filed under Section 72 of the Representation of People Act of his election expenses, it must follow that Bam Dev had entered into an arrangement with Munshi Ram under which the latter agreed not to withdraw his candidature on promise or payment of a bribe. To make out a case under Section 123(1) of payment of a bribe or promised gratification to Munshi Ram with the object directly or indirectly of inducing Munshi Ram not to withdraw from being a candidate at the election, the oral evidence with regard to the payment of Rs. 18/negative the plea. The case of Bam Dev that it was due to some mistake of his accountant that the voucher Ex. P.W. 6/3 was included in the election expenses is not improbable. Again there is no evidence to prove that payment was made with the object of directly inducing Munshi Ram to withdraw his candidature from the election10. The High Court observed that the following seven circumstances support the conclusion that there was such an arrangement. They are(i) that Bam Dev was a candidate of the Jan Sangh Party;(ii) that the election office of Bam Dev and the Jan Sangh Party office were in the same building at Nangal;(iii) that out of the total number of vouchers, i.e., 156, filed with the return of the election expenses, 45 are drawn in the name of the Jan Sangh Party and that Bam Dev has admitted that the payment regarding these vouchers was made by him;(iv) that payment of Hazura Singh, P.W. 9 was made by the Jan Sangh Party;(v) that Bam Dev has not disclaimed that the Jan Sangh Party was actively helping him;(vi) that no money was paid to the workers by the Jan Sangh Party but the workers had money and they paid the price of petrol used in connection with election work of Bam Dev; and(vii) that though Bam Dev maintained accounts regarding his election expenses, he has not produced the same and also has not produced hise who kept those accounts. No accounts was maintained by the Jan Sangh PartyThese circumstances taken separately or collectively do not prove that Bam Dev had entered into a bargain with Munshi Ram by giving him any gift or offer to pay him any gratification in consideration of the latter agreeing not to withdraw his candidature from the election. | 1 | 2,456 | 921 | ### Instruction:
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Bam Dev through the Jan Sangh Party. 6. Reliance was also placed on the evidence of witnesses who deposited that there was an arrangement between Bam Dev and Munshi Ram that the former will meet the election expenses of the latter. Charanjit Lal and Khushal Singh have deposited to that effect. Part of the evidence is hearsay and should not have been admitted. Even otherwise, the evidence was so infirm that no reliance be placed upon that evidence. The two witnesses admitted that they were ordered by their party organization to appear as witnesses and to support the case of the first respondent. The story was again not put in cross-examination to Munshi Ram who was examined as a witness more than a week after the two witnesses were examined in Court. 7. The third payment of Rs. 18/- on which reliance has been placed requires a detailed analysis of the evidence. It was claimed by the first respondent that Rs. 125/- were paid by Bam Dev to Kapila Printing Press on January 31, 1969, for getting posters printed for Munshi Ram. At the trial counsel for the first respondent said that there was no evidence in support of the case except as to the amount of Rs. 18/- which it was alleged was paid by Bam Dev to the Kapila Printing Press on account of Bill (Ex. P.W. 6/3) drawn in favour of Munshi Ram. The owner of the Kapila Printing Press, Atma Ram deposited that Bam Dev did not get any printing work done by him during the mid-term election, but work was got done by the Jan Sangh Party; that Munshi Ram had also got some work done at his printing press; that he has brought the relevant record; that the credit memo, a carbon copy of which had been marked as Ex. P.W. 6/1 was issued by him and that pertained to the printing done for the Jan Sangh Party; Ex. P.W. 6/2 was a carbon copy of the credit voucher of Munshi Ram; Ex. P.W. 6/3 was the original of Ex. P.W. 6/2. He further deposited that the payment regarding Ex. P.W. 6/3 was made by Munshi Ram and those bills related to the material published regarding the election in the mid-term poll. Atma Ram P.W. 6 was examined on behalf of the first respondent. The witness was not sought to be treated as hostile and his testimony completely destroyed the case of the first respondent. 8. Munshi Ram stated that he ordered that a pamphlet be printed. In respect of that pamphlet Ex. P.W. 6/3 was issued and that he (Munshi Ram) had made the payment and not Bam Dev. Bam Dev also bore similar testimony. In respect of this part of the case the first respondent had no personal knowledge. The oral testimony and the contents of the receipt Ex. P.W. 6/3 clearly established that the bill related to a pamphlet published by Munshi Ram and not by Bam Dev. 9. Bam Dev had, however, included an amount of Rs. 18/- paid on January 31, 1969, to the Kapila Printing Press and this apparently related to Ex. P.W. 6/3. Bam Dev explained that there was a mistake committed by his accountant an including that amount in his election expenses. He asserted that he had not paid that amount. Bam Dev claimed that all the accounts were maintained by his election agent. We do not think that merely from the inclusion of the amount of Rs. 18/- paid to the Kapila Printing Press on January 31, 1969, in the account filed under Section 72 of the Representation of People Act of his election expenses, it must follow that Bam Dev had entered into an arrangement with Munshi Ram under which the latter agreed not to withdraw his candidature on promise or payment of a bribe. To make out a case under Section 123(1) of payment of a bribe or promised gratification to Munshi Ram with the object directly or indirectly of inducing Munshi Ram not to withdraw from being a candidate at the election, the oral evidence with regard to the payment of Rs. 18/- negative the plea. The case of Bam Dev that it was due to some mistake of his accountant that the voucher Ex. P.W. 6/3 was included in the election expenses is not improbable. Again there is no evidence to prove that payment was made with the object of directly inducing Munshi Ram to withdraw his candidature from the election. 10. The High Court observed that the following seven circumstances support the conclusion that there was such an arrangement. They are -(i) that Bam Dev was a candidate of the Jan Sangh Party; (ii) that the election office of Bam Dev and the Jan Sangh Party office were in the same building at Nangal; (iii) that out of the total number of vouchers, i.e., 156, filed with the return of the election expenses, 45 are drawn in the name of the Jan Sangh Party and that Bam Dev has admitted that the payment regarding these vouchers was made by him; (iv) that payment of Hazura Singh, P.W. 9 was made by the Jan Sangh Party; (v) that Bam Dev has not disclaimed that the Jan Sangh Party was actively helping him; (vi) that no money was paid to the workers by the Jan Sangh Party but the workers had money and they paid the price of petrol used in connection with election work of Bam Dev; and (vii) that though Bam Dev maintained accounts regarding his election expenses, he has not produced the same and also has not produced his election-in-charge who kept those accounts. No accounts was maintained by the Jan Sangh Party. These circumstances taken separately or collectively do not prove that Bam Dev had entered into a bargain with Munshi Ram by giving him any gift or offer to pay him any gratification in consideration of the latter agreeing not to withdraw his candidature from the election.
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3. In our view the judgment of the High Court cannot be sustained. Ram Sarup deposited that his tonga was engaged by Munshi Ram for his election campaign; that he (Ram Sarup) used to "take the hire from the office of Bam Dev"; that the money was received from the President of Jan Sangh and "at that time Bam Dev was standing". This evidence does not support the case that the payment was made by Bam Dev "through the Jan Sangh". Munshi Ram was a candidate at the election. The testimony of witness Ram Sarup only establishes that payment for the tonga engaged by Munshi Ram was made by the President of the Jan Sangh Party.Mr. Hardev Singh on behalf of the first respondent contended that the Jan Sangh Party had no funds and Bam Dev alone was the financier of the Jan Sangh Party.On this part of the case our attention has not been invited to any evidence4. The testimony of Hazura Singh also is infirm. The witness stated that his "loudspeakers" were used by the Jan Sangh Party in them poll, and "a loudspeaker" was fitted to the tonga of Ram Sarup and the hire charge for the "loudspeaker" was paid by the Jan Sangh Party. He claimed that he had received as hire an amount of Rs. 1, 450/which was paid by the President of the Jan Sangh Party. The witness admitted that he maintained no accounts, and that he had no conversation with Bam Dev in regard to the payment. The testimony of the witness is unreliable and there is nothing to connect the alleged payment by the President of the Jan Sangh Party with Bam DevThe witness was not sought to be treated as hostile and his testimony completely destroyed the case of the first respondentThe oral testimony and the contents of the receipt Ex. P.W. 6/3 clearly established that the bill related to a pamphlet published by Munshi Ram and not by Bam Dev9. Bam Dev had, however, included an amount of Rs. 18/paid on January 31, 1969, to the Kapila Printing Press and this apparently related to Ex. P.W. 6/3. Bam Dev explained that there was a mistake committed by his accountant an including that amount in his election expenses. He asserted that he had not paid that amount. Bam Dev claimed that all the accounts were maintained by his election agent. We do not think that merely from the inclusion of the amount of Rs. 18/paid to the Kapila Printing Press on January 31, 1969, in the account filed under Section 72 of the Representation of People Act of his election expenses, it must follow that Bam Dev had entered into an arrangement with Munshi Ram under which the latter agreed not to withdraw his candidature on promise or payment of a bribe. To make out a case under Section 123(1) of payment of a bribe or promised gratification to Munshi Ram with the object directly or indirectly of inducing Munshi Ram not to withdraw from being a candidate at the election, the oral evidence with regard to the payment of Rs. 18/negative the plea. The case of Bam Dev that it was due to some mistake of his accountant that the voucher Ex. P.W. 6/3 was included in the election expenses is not improbable. Again there is no evidence to prove that payment was made with the object of directly inducing Munshi Ram to withdraw his candidature from the election10. The High Court observed that the following seven circumstances support the conclusion that there was such an arrangement. They are(i) that Bam Dev was a candidate of the Jan Sangh Party;(ii) that the election office of Bam Dev and the Jan Sangh Party office were in the same building at Nangal;(iii) that out of the total number of vouchers, i.e., 156, filed with the return of the election expenses, 45 are drawn in the name of the Jan Sangh Party and that Bam Dev has admitted that the payment regarding these vouchers was made by him;(iv) that payment of Hazura Singh, P.W. 9 was made by the Jan Sangh Party;(v) that Bam Dev has not disclaimed that the Jan Sangh Party was actively helping him;(vi) that no money was paid to the workers by the Jan Sangh Party but the workers had money and they paid the price of petrol used in connection with election work of Bam Dev; and(vii) that though Bam Dev maintained accounts regarding his election expenses, he has not produced the same and also has not produced hise who kept those accounts. No accounts was maintained by the Jan Sangh PartyThese circumstances taken separately or collectively do not prove that Bam Dev had entered into a bargain with Munshi Ram by giving him any gift or offer to pay him any gratification in consideration of the latter agreeing not to withdraw his candidature from the election.
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Union of India and Others Vs. Messrs Jalyan Udyog and Another | vessels but when after plying for a number of years, they are scrapped, pay duty on the supposition that it is imported for breaking-up on the date it is broken-up." * But for the fortuitous - and enormous - increase in the prices of steel worldwide, the roles should have been reversed : what is now contended by the Union of India would have been the contention of the ship-owners - if the Union of India were to take the opposite stand. The said fortuitous circumstance cannot, indubitable, make any difference to the interpretation to be placed upon the notification. We cannot, therefore, agree with the reasoning in the judgment under appeal or in the judgment of the Calcutta High Court in Ramnivas Chaudhury27. Both the learned Additional Solicitor General and the learned counsel for the ship-owners cited certain decisions which may briefly be referred. It must, however, be stated that there is no decision of this Court directly on the point. The only decisions are that of the Bombay High Court in Jalyan Udyog (under appeal) and that of the Calcutta High Court in Ramnivas Chaudhury. In this sense, none of the decisions have a direct bearing on the question at issue. Even so, a few of them may be noticed 28. In Bharat Surfactants (P) Ltd. v. Union of India a Constitution Bench of this Court held that by virtue of the proviso to Section 15(1), the date of entry inwards of the vessel would be the date on which it was given a berth and entry inwards registered by the customs authorities. It was a case where the bill of entry was filed on July 9, 1981 i.e., before the arrival of the vessel. The ship in question arrived at Bombay on July 11, 1981. The port authorities were, however, unable to allot a berth to it. The vessel then left Bombay for Karachi for unloading other cargo intended for that port and then came back to Bombay on July 23, 1981. In the Register of Inward Entry, the date of arrival of the vessel was recorded as July 23, 1981 and entry inward granted and registered as July 31, 1981. The customs authorities imposed duty on the import of edible oil @ 150% which was the rate prevailing on July 31, 1981. The case of the importers, however, was that the rate of duty should be the rate prevailing on July 11, 1981 when the vessel had actually arrived and registered in the port of Bombay. Their contention was that the vessel had actually entered the territorial waters of India on July 11, 1981 and, therefore, that is the date of import of goods relevant for the rate of duty. The mere fact that a berth was not available for it on the earlier occasion on account of which it had to leave the port and come back, they said, is not material. The contention was rejected by this Court. It was held that by virtue of the provisions in Section 15, where the bill of entry is presented before the date of entry inwards of the vessel, it would be deemed to have been presented on the date of such entry inwards. Accordingly, it was held that the rate of import duty and tariff valuation shall be those in force on July 31, 1981 29. In Jain Shudh Vanaspati Ltd. v. Union of India a Division Bench of the Delhi High Court held that the rate of duty shall be the rate in force on the date specified in Section 15 and not the date when the ship entered the territorial waters. To the same effect is the decision of the learned Single Judge of the Kerala High Court in Aluminium Industries Ltd. v. Union of India 30. A Division Bench of the Madras High Court has also taken a similar view in M. Jamal Co. v. Union of India. It held that the chargeability of duty is determined when the goods are imported into the territory of India within the meaning of Section 12(1) of the Act. The Bench expressed certain other views which it is not necessary to notice for the purpose of these appeals 31. The counsel for the ship-owners stated that the principle of the Full Bench decision of the Bombay High Court in Apar ( 1985 (2) ELT 644 (Bom)) is not relevant herein and that they place no reliance thereon. For this reason, we need not refer to the said decision or express any opinion on its correctness 32. In Prakash Cotton Mills Pvt. Ltd. v. B. Sen it was held by this Court that where the goods are imported and stored in warehouse and the rate of duty is increased before the goods are cleared from the warehouse, the duty chargeable would be the one in force on the date of clearance of goods from the warehouse 33. The learned counsel for the ship-owners cited certain decisions holding that the rules must be consistent with and must operate within the four corners of the Act. Since there can be no dispute with the proposition, we do not think it necessary to refer to the decisions cited in that behalf. They also relied upon the decision of this Court in Orient Weaving Mills (P) Ltd. v. Union of India to contend that the power of exemption cannot be employed for changing the character of tax. Since the character of tax cannot be said to have undergone a change in the present case, we do not think it necessary to discuss the said decision in any detail34. The decision of the House of Lords in Chertsey Urban District Council v. Mixnams Properties Ltd. was relied upon in support of the proposition that the conditions imposed by the subordinate legislating authority cannot be ultra vires the Act nor be derogatory to the object of the enactment. While the principle is unexceptionable its applicability to the facts of this case is not | 1[ds]We are inclined to agree with him. In the writ petition, it is clearly stated that the second respondent (second writ petitioner) has sold the said ships to and in favour of the first respondent (first writ petitioner) on September 12, 1984. It is not stated that the second respondent has any subsisting or other interest in the matter. It is true that the writ petition was filed by both these persons an both of them are respondents in these appeals but in view of the aforesaid circumstance, we do not think that there can be any valid objection to the hearing of the appeal without effecting service upon the second respondent. So far as other appeals are concerned, there is no such objection; service is completeour opinion, it is couched in simple and clear language. It admits of no ambiguity or doubt. It says thatvessels other than vessels imported to beare exempt from payment of customs duty leviable thereon. It then says that where any suchvessel is subsequentlyit shall be chargeable with the duty which would be payable if it were imported then for beingThe idea behind the notification evidently was to encourage the import ofvessels. The notification also contemplates and provides for the situation where an importedvessel becomes not seaworthy after a few years and thedecides to scrap/break it. It provides that in such a situation it would be deemed as if the ship is imported forwhen it is broken up and the customs duty is charged on that basis. The notification thus creates a fiction viz., the vessel must be deemed to have been imported for beingwhen it is broken up, though as a matter of fact the import was at an earlier point of time. Ordinarily speaking, no doubt, customs duty is levied with reference to the date of actual import but the exemption notification says that if the ship imported is anvessel it shall be exempt from customs duty on the date of its import but in case it is subsequently broken up the duty shall be paid as if it were then imported for beingwhich necessarily means that duty will be levied on the value and at the rate prevailing on the date ofIndeed, in our opinion, the notification was quite clear even before it was amended in 1962; at any rate it has become clearer beyond any doubt after the said amendment. By virtue of the fiction created by the proviso in the notification, the vessel is deemed to have been imported foron the date it isIt is well settled that where a fiction is created by a provision of law, the court must give full effect to the fiction, and as is often said, it should not allow its imagination to be boggled by any other considerations. Fiction must be given its due play; there is to be nostop. According to this notification, therefore, the date relevant for determining the value and rate of the customs duty chargeable in the case of two ships concerned in Jalyan Udyog (Jalyan Udyog v. Union of India, is the date on which they wereWe are, however, of the opinion that since the date ofis an uncertain event and may require an enquiry in each case and also because no ship can beor scrapped except under the prior permission granted by the Director General of Shipping, the date ofcontemplated by the said proviso should be deemed to be the date on which the permission for scrapping/breaking is accorded by the Director General of Shipping. This clarification is made in the interest of certainty and to obviate avoidable controversy. It is with reference to such date that the value and the rate have to be determined. If on such date, any other procedural formalities prescribed by law are to be complied with, they too have to be compliedsubmission is that an exemption notification can merely reduce or waive the customs duty but it cannot alter the basic premises provided by Sections 12, 14 and 15. In other words, the argument is that the power of exemption cannot be employed for changing the date of import or for altering the date with reference to which the value and the rate of duty has to be determined nor is the power of exemption available for enhancing the duty chargeable. We are not prepared to agree. Section 25 has already been set out hereinabove. A proper analysis of(1) of Section 25 shows that the power of exemption can be exercised (a) where the Central Government is satisfied that in the public interest it is necessary to either waive or reduce the duty chargeable on any goods, (b) it can do so by way of a notification published in the Official Gazette, (c) such exemption, however, must be a general one, (d) the exemption granted may be an absolute one or subject to such conditions, as may be specified in the notification and (e) the conditions, if any, specified may be conditions to be fulfilled before the clearance of goods or after the clearance of goods, as the case may be22. The above analysis of(1) shows inter alia that an exemption granted may be an absolute one or subject to such conditions, as may be specified in the notification and further that the conditions specified may relate to a stage before the clearance of goods or to a stage subsequent to the clearance of goods. Section 25(1) is a part of the enactment and must be construed harmoniously with the other provisions of the Act. The power of exemption is variously described as conditional legislation (see Jalan Trading Co. Pvt. Ltd. v. Mill Mazdoor Sabha and Hamdard Dawakhana v. Union of India and also as a species of delegated legislation. Whether it is one or the other, it is a power given to the Central Government to be exercised in public interest. Such a provision has become a standard feature in several enactments and in particular, taxing enactments. It is equally well settled by now that the power of taxation can be used not merely for raising revenue but also to regulate the economy, to encourage or discourage as the situation may call for, the import and export of certain goods as also for serving the social objectives of the State. (Vide Elel Hotels and Investments Ltd. v. Union of India, Sri Srinivasa Theatre v. Government of T.N. and Subhash Photographics v. Union of India Since the Parliament cannot constantly monitor the needs of and the emerging trends in the economy and is in no position to engage itself inregulation and adjustment oftrade accordingly, power is conferred upon the Central Government to provide for exemption from duty of goods, either wholly or partly, and with or without conditions, as may be called for in public interest. We see no warrant for reading any limitation into this power. If the public interest demands that the exemption should be absolute, the Central Government can do so. Similarly, if the public interest demands that exemption should be granted only subject to certain conditions it can provide such conditions. Then again if the public interest demands that conditions specified should relate to a stage subsequent to the date of clearance it can do so. The guiding factor is the public interest. The power given by section 25 to the Central Government to specify conditions which may even relate to a stage subsequent to the clearance of goods clearly shows that the power of exemption can be used even for altering the relevant date prescribed by Section 15. It is this very position which has been clarified by(3) introduced in the year 1983. In our opinion,(3) does not provide anything new. It merely elucidates and makes express what is implicit in(1) and (2).(3) says that a notification under(1) or (2) may provide "for the levy of a duty on such goods at a rate expressed in a form or method different from the form or method in which the statutory duty is leviable". It further says that "any exemption granted in relation to any goods in the manner provided in thisshall have effect subject to the condition that the duty of customs chargeable on such goods shall in no case exceed the statutory duty". The explanation to(3) explains the words "form or method" occurring in theIt says that the form or method in relation to the rate or duty of customs means the basis of duty viz., valuation, weight, number, length, area, volume or other measure with reference to which duty is leviable23. We are equally unable to agree that a legal fiction can be created only by a legislature and not by the executive. Here the Central Government is exercising a power conferred upon it by the Parliament. The provision conferring such power does contemplate and empower the Central Government to create such a fiction, as explained hereinabove.(1) as well as(3) place the matter beyond any doubt. To repeat, the nature of power under Section 25 is conditional legislation or a species of delegated legislation; an exemption notification under Section 25 is not an executive act. No decision has been brought to our notice in support of the said contentionwhich is raised only in the written submission24. For the above reasons, we see no reason to hold that the said notification travels beyond the four corners of Section 25. It is perfectly within the ambit of Section 2525. We are equally unable to agree that by virtue of the fiction contained in the exemption notification, theare being made to pay a higher duty than the statutory duty. By a fortuitous combination of circumstances, it so happens that the value of the ship when it was imported in 1968 as anvessel happens to be less than the value of the ship today when it has become junk and fit only for scrapping/breaking. On account of the steep rise in the prices of steel, such an unusual situation has come about but this circumstance in no way affects the validity of the notification. The notification shifts the date of importin the case of a ship which is imported as anvessel but is subsequentlyfrom the actual date of import to the date ofby creating a legal fiction. Once it is held that it is open to the Central Government to impose such a condition or to create such a fiction, as the case may be, the condition or the fiction has to be given full effect to. It must be deemed that the ship is importedon the date it is(as explained hereinabove) and its value and rate of duty should be determined with reference to such date. By doing this, the duty chargeable by virtue of the exemption notification is not going beyond the be statutory duty payable on such deemed date26. The learned counsel for thesought to construe the proviso in the notification to mean that the duty will be payable as if the ships were imported foron the date of its actual import. In other words, according to the learned counsel, in Jalyan Udyog the ships must be deemed to have been imported forin the year 1968 itself and the value and the rate must be determined on that basis. This is the view taken in the order under appeal and also in a decision of the Calcutta High Court in Union of India v. Sri Ramnivas Chaudhury. We do not think that the plain words of the proviso are capable of any such interpretation apart from the patent incongruity of the said submission. To repeat, the main limb of the notification says thats other than vessels imported to beare exempt from the payment of the customs duty leviable thereon but if such avessel is subsequentlyit shall be chargeable with the duty payable as if it were then imported to beIf the intention behind the notification was to say what the learned counsel for thecontend, the proviso should have read like thisthat any such vessel subsequentlyshall be chargeable with the duty which would have been payable on her if she were imported to beon the date of its import."when the notification was issued the Central Government could not have contemplated that the prices of steel would go up steely in future and that a situation would arise when a junk ship would carry more value than what anvessel cost, say, 15 or 20 years ago. The Government must have presumed that the value ofvessel would necessarily be higher than the vessel which is to beThe notification was thus intended as a concessionan encouragement to the acquisition and import ofvessels. The principle of the notificationduty on import of such vessels but when after plying for a number of years, they are scrapped, pay duty on the supposition that it is imported foron the date it ist for the fortuitousincrease in the prices of steel worldwide, the roles should have been reversed : what is now contended by the Union of India would have been the contention of theif the Union of India were to take the opposite stand. The said fortuitous circumstance cannot, indubitable, make any difference to the interpretation to be placed upon the notification. We cannot, therefore, agree with the reasoning in the judgment under appeal or in the judgment of the Calcutta High Court in Ramnivas Chaudhury27. Both the learned Additional Solicitor General and the learned counsel for thecited certain decisions which may briefly be referred. It must, however, be stated that there is no decision of this Court directly on the point. The only decisions are that of the Bombay High Court in Jalyan Udyog (under appeal) and that of the Calcutta High Court in Ramnivas Chaudhury. In this sense, none of the decisions have a direct bearing on the question at issue. Even so, a few of them may beThe counsel for thestated that the principle of the Full Bench decision of the Bombay High Court in Apar ( 1985 (2) ELT 644 (Bom)) is not relevant herein and that they place no reliance thereon. For this reason, we need not refer to the said decision or express any opinion on itsThe learned counsel for thecited certain decisions holding that the rules must be consistent with and must operate within the four corners of the Act. Since there can be no dispute with the proposition, we do not think it necessary to refer to the decisions cited in that behalf. They also relied upon the decision of this Court in Orient Weaving Mills (P) Ltd. v. Union of India to contend that the power of exemption cannot be employed for changing the character of tax. Since the character of tax cannot be said to have undergone a change in the present case, we do not think it necessary to discuss the said decision in any detail34. The decision of the House of Lords in Chertsey Urban District Council v. Mixnams Properties Ltd. was relied upon in support of the proposition that the conditions imposed by the subordinate legislating authority cannot be ultra vires the Act nor be derogatory to the object of the enactment. While the principle is unexceptionable its applicability to the facts of this case is not | 1 | 8,256 | 2,787 | ### Instruction:
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vessels but when after plying for a number of years, they are scrapped, pay duty on the supposition that it is imported for breaking-up on the date it is broken-up." * But for the fortuitous - and enormous - increase in the prices of steel worldwide, the roles should have been reversed : what is now contended by the Union of India would have been the contention of the ship-owners - if the Union of India were to take the opposite stand. The said fortuitous circumstance cannot, indubitable, make any difference to the interpretation to be placed upon the notification. We cannot, therefore, agree with the reasoning in the judgment under appeal or in the judgment of the Calcutta High Court in Ramnivas Chaudhury27. Both the learned Additional Solicitor General and the learned counsel for the ship-owners cited certain decisions which may briefly be referred. It must, however, be stated that there is no decision of this Court directly on the point. The only decisions are that of the Bombay High Court in Jalyan Udyog (under appeal) and that of the Calcutta High Court in Ramnivas Chaudhury. In this sense, none of the decisions have a direct bearing on the question at issue. Even so, a few of them may be noticed 28. In Bharat Surfactants (P) Ltd. v. Union of India a Constitution Bench of this Court held that by virtue of the proviso to Section 15(1), the date of entry inwards of the vessel would be the date on which it was given a berth and entry inwards registered by the customs authorities. It was a case where the bill of entry was filed on July 9, 1981 i.e., before the arrival of the vessel. The ship in question arrived at Bombay on July 11, 1981. The port authorities were, however, unable to allot a berth to it. The vessel then left Bombay for Karachi for unloading other cargo intended for that port and then came back to Bombay on July 23, 1981. In the Register of Inward Entry, the date of arrival of the vessel was recorded as July 23, 1981 and entry inward granted and registered as July 31, 1981. The customs authorities imposed duty on the import of edible oil @ 150% which was the rate prevailing on July 31, 1981. The case of the importers, however, was that the rate of duty should be the rate prevailing on July 11, 1981 when the vessel had actually arrived and registered in the port of Bombay. Their contention was that the vessel had actually entered the territorial waters of India on July 11, 1981 and, therefore, that is the date of import of goods relevant for the rate of duty. The mere fact that a berth was not available for it on the earlier occasion on account of which it had to leave the port and come back, they said, is not material. The contention was rejected by this Court. It was held that by virtue of the provisions in Section 15, where the bill of entry is presented before the date of entry inwards of the vessel, it would be deemed to have been presented on the date of such entry inwards. Accordingly, it was held that the rate of import duty and tariff valuation shall be those in force on July 31, 1981 29. In Jain Shudh Vanaspati Ltd. v. Union of India a Division Bench of the Delhi High Court held that the rate of duty shall be the rate in force on the date specified in Section 15 and not the date when the ship entered the territorial waters. To the same effect is the decision of the learned Single Judge of the Kerala High Court in Aluminium Industries Ltd. v. Union of India 30. A Division Bench of the Madras High Court has also taken a similar view in M. Jamal Co. v. Union of India. It held that the chargeability of duty is determined when the goods are imported into the territory of India within the meaning of Section 12(1) of the Act. The Bench expressed certain other views which it is not necessary to notice for the purpose of these appeals 31. The counsel for the ship-owners stated that the principle of the Full Bench decision of the Bombay High Court in Apar ( 1985 (2) ELT 644 (Bom)) is not relevant herein and that they place no reliance thereon. For this reason, we need not refer to the said decision or express any opinion on its correctness 32. In Prakash Cotton Mills Pvt. Ltd. v. B. Sen it was held by this Court that where the goods are imported and stored in warehouse and the rate of duty is increased before the goods are cleared from the warehouse, the duty chargeable would be the one in force on the date of clearance of goods from the warehouse 33. The learned counsel for the ship-owners cited certain decisions holding that the rules must be consistent with and must operate within the four corners of the Act. Since there can be no dispute with the proposition, we do not think it necessary to refer to the decisions cited in that behalf. They also relied upon the decision of this Court in Orient Weaving Mills (P) Ltd. v. Union of India to contend that the power of exemption cannot be employed for changing the character of tax. Since the character of tax cannot be said to have undergone a change in the present case, we do not think it necessary to discuss the said decision in any detail34. The decision of the House of Lords in Chertsey Urban District Council v. Mixnams Properties Ltd. was relied upon in support of the proposition that the conditions imposed by the subordinate legislating authority cannot be ultra vires the Act nor be derogatory to the object of the enactment. While the principle is unexceptionable its applicability to the facts of this case is not
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only in the written submission24. For the above reasons, we see no reason to hold that the said notification travels beyond the four corners of Section 25. It is perfectly within the ambit of Section 2525. We are equally unable to agree that by virtue of the fiction contained in the exemption notification, theare being made to pay a higher duty than the statutory duty. By a fortuitous combination of circumstances, it so happens that the value of the ship when it was imported in 1968 as anvessel happens to be less than the value of the ship today when it has become junk and fit only for scrapping/breaking. On account of the steep rise in the prices of steel, such an unusual situation has come about but this circumstance in no way affects the validity of the notification. The notification shifts the date of importin the case of a ship which is imported as anvessel but is subsequentlyfrom the actual date of import to the date ofby creating a legal fiction. Once it is held that it is open to the Central Government to impose such a condition or to create such a fiction, as the case may be, the condition or the fiction has to be given full effect to. It must be deemed that the ship is importedon the date it is(as explained hereinabove) and its value and rate of duty should be determined with reference to such date. By doing this, the duty chargeable by virtue of the exemption notification is not going beyond the be statutory duty payable on such deemed date26. The learned counsel for thesought to construe the proviso in the notification to mean that the duty will be payable as if the ships were imported foron the date of its actual import. In other words, according to the learned counsel, in Jalyan Udyog the ships must be deemed to have been imported forin the year 1968 itself and the value and the rate must be determined on that basis. This is the view taken in the order under appeal and also in a decision of the Calcutta High Court in Union of India v. Sri Ramnivas Chaudhury. We do not think that the plain words of the proviso are capable of any such interpretation apart from the patent incongruity of the said submission. To repeat, the main limb of the notification says thats other than vessels imported to beare exempt from the payment of the customs duty leviable thereon but if such avessel is subsequentlyit shall be chargeable with the duty payable as if it were then imported to beIf the intention behind the notification was to say what the learned counsel for thecontend, the proviso should have read like thisthat any such vessel subsequentlyshall be chargeable with the duty which would have been payable on her if she were imported to beon the date of its import."when the notification was issued the Central Government could not have contemplated that the prices of steel would go up steely in future and that a situation would arise when a junk ship would carry more value than what anvessel cost, say, 15 or 20 years ago. The Government must have presumed that the value ofvessel would necessarily be higher than the vessel which is to beThe notification was thus intended as a concessionan encouragement to the acquisition and import ofvessels. The principle of the notificationduty on import of such vessels but when after plying for a number of years, they are scrapped, pay duty on the supposition that it is imported foron the date it ist for the fortuitousincrease in the prices of steel worldwide, the roles should have been reversed : what is now contended by the Union of India would have been the contention of theif the Union of India were to take the opposite stand. The said fortuitous circumstance cannot, indubitable, make any difference to the interpretation to be placed upon the notification. We cannot, therefore, agree with the reasoning in the judgment under appeal or in the judgment of the Calcutta High Court in Ramnivas Chaudhury27. Both the learned Additional Solicitor General and the learned counsel for thecited certain decisions which may briefly be referred. It must, however, be stated that there is no decision of this Court directly on the point. The only decisions are that of the Bombay High Court in Jalyan Udyog (under appeal) and that of the Calcutta High Court in Ramnivas Chaudhury. In this sense, none of the decisions have a direct bearing on the question at issue. Even so, a few of them may beThe counsel for thestated that the principle of the Full Bench decision of the Bombay High Court in Apar ( 1985 (2) ELT 644 (Bom)) is not relevant herein and that they place no reliance thereon. For this reason, we need not refer to the said decision or express any opinion on itsThe learned counsel for thecited certain decisions holding that the rules must be consistent with and must operate within the four corners of the Act. Since there can be no dispute with the proposition, we do not think it necessary to refer to the decisions cited in that behalf. They also relied upon the decision of this Court in Orient Weaving Mills (P) Ltd. v. Union of India to contend that the power of exemption cannot be employed for changing the character of tax. Since the character of tax cannot be said to have undergone a change in the present case, we do not think it necessary to discuss the said decision in any detail34. The decision of the House of Lords in Chertsey Urban District Council v. Mixnams Properties Ltd. was relied upon in support of the proposition that the conditions imposed by the subordinate legislating authority cannot be ultra vires the Act nor be derogatory to the object of the enactment. While the principle is unexceptionable its applicability to the facts of this case is not
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R.B.L. BANARSI DASS AND CO. PVT. LTD Vs. M/S SHREE AMAR TRADING COMPANY | Rangnath Misra, J. 1. Special Leave granted. Notice issued in the SLP has been refused by the Respondent and must, therefore, to be taken to be sufficient. There is no appearance for the Respondent. 2. Eviction of the Respondent was sought for under the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 on several grounds and ultimately eviction was ordered on the basis of compromise terms which were contained in a petition filed before the Controller. The Controller by his order dated 7.11.1981 while decreeing eviction suspended the decree till 8.7.1986 subject to the condition that the tenant should continue paying the rent in the meantime. The order of eviction was not challenged u/s 15 of the Act. In the absence of such steps the provisions of Section 15(5) of the Act became operative and that provides: The decisions of the appellate authority and subject to such decision the order of the Controller shall be final and shall not be liable to be called in question in any Court of law except as provided in Sub-section (6) of this section. The Respondent availed the benefit conferred by the order of the Controller, namely, suspension of the decree of eviction till 1986 and just before the period was about to expire filed a suit challenging the compromise decree and asked for injunction against the execution. The trial court and the appellate court refused to grant any interim injunction. On a revision petition filed by the Respondent, the High Court has granted injunction. This appeal is against this injunction. 3. Ordinarily the order being interlocutory this Court would not have entertained the special leave petition. We were, however, impressed by the feature that the Respondent was not acting bonafide, he availed of the benefit under the compromise decree and remained in occupation for about five years without raising any dispute against the order of eviction and the institution of the suit is not a bonafide act. | 1[ds]3. Ordinarily the order being interlocutory this Court would not have entertained the special leave petition. We were, however, impressed by the feature that the Respondent was not acting bonafide, he availed of the benefit under the compromise decree and remained in occupation for about five years without raising any dispute against the order of eviction and the institution of the suit is not a bonafide act. | 1 | 363 | 77 | ### Instruction:
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Rangnath Misra, J. 1. Special Leave granted. Notice issued in the SLP has been refused by the Respondent and must, therefore, to be taken to be sufficient. There is no appearance for the Respondent. 2. Eviction of the Respondent was sought for under the provisions of the Haryana Urban (Control of Rent and Eviction) Act, 1973 on several grounds and ultimately eviction was ordered on the basis of compromise terms which were contained in a petition filed before the Controller. The Controller by his order dated 7.11.1981 while decreeing eviction suspended the decree till 8.7.1986 subject to the condition that the tenant should continue paying the rent in the meantime. The order of eviction was not challenged u/s 15 of the Act. In the absence of such steps the provisions of Section 15(5) of the Act became operative and that provides: The decisions of the appellate authority and subject to such decision the order of the Controller shall be final and shall not be liable to be called in question in any Court of law except as provided in Sub-section (6) of this section. The Respondent availed the benefit conferred by the order of the Controller, namely, suspension of the decree of eviction till 1986 and just before the period was about to expire filed a suit challenging the compromise decree and asked for injunction against the execution. The trial court and the appellate court refused to grant any interim injunction. On a revision petition filed by the Respondent, the High Court has granted injunction. This appeal is against this injunction. 3. Ordinarily the order being interlocutory this Court would not have entertained the special leave petition. We were, however, impressed by the feature that the Respondent was not acting bonafide, he availed of the benefit under the compromise decree and remained in occupation for about five years without raising any dispute against the order of eviction and the institution of the suit is not a bonafide act.
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3. Ordinarily the order being interlocutory this Court would not have entertained the special leave petition. We were, however, impressed by the feature that the Respondent was not acting bonafide, he availed of the benefit under the compromise decree and remained in occupation for about five years without raising any dispute against the order of eviction and the institution of the suit is not a bonafide act.
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S. K. G. Sugar Ltd. Vs. Sri Ali Hassan, Chairman, Industrial Tribunal, Bihar & Others | of the reference or even to serve on the appellant a notice of the proceedings which were to take place before the Industrial Tribunal. Under the Industrial Disputes (Central) Rules,1947 enacted by the Central Government in exercise of the powers conferred upon it by S. 38 of the Industrial Disputes Act, intimation of the place and time of hearing had got to be given to the parties to the reference (Rule 10); and the Industrial Tribunal was enjoined to call upon the parties at the first sitting to state their case (Rule 11); the only power given to the Industrial Tribunal to proceed ex parte was when a party to the proceedings failed to attend or to be represented without good cause shown (Rule 19); and, the representatives of the parties appearing before an Industrial Tribunal were to have the right of examination, cross-examination and of addressing the Tribunal when evidence had been called (Rule 24) : The whole of this procedure envisaged the parties to the reference being properly notified of the proceedings before the, Industrial Tribunal and taking part therein either by themselves or through their authorised representatives. The fact that no such notice was given to the appellant by the Industrial Tribunal goes to show that in the circumstances that obtained the appellant was certainly not understood by the Tribunal as having been a party to the reference and it could not be said on the terms of the reference itself which was made on 2-12-1954, that the appellant, which came into existence as the lessees of the said Mills on 6-12-1954, was a party to the said reference. If the old lessees were in management of the said Mills on 2-12-1954, there was no identity of employers as between them and the appellant, the appellant certainly did not claim under the old lessees nor could it be described as their "heirs, successors or assigns" in respect of the establishment to which the dispute related within the meaning of S. 18 (3(c) of the Industrial Disputes Act. There is no suggestion whatever that the appellant was or is a benamidar of the previous lessees. In no event could the appellant therefore be held to be bound either by the reference or the award made by the Industrial Tribunal, the identity of the employers at the date of the reference with the employers at the time when the acts complained of in the applications under S. 33A of the Industrial Disputes Act were purported to be done by them not having been established. 23. If that is the true position, no question of the appellant obtaining written permission of the Industrial Tribunal under S. 33 of the Act for discharging or punishing or for effecting a change in the conditions of service of the workmen concerned could arise. If no such permission were needed, S. 33A of the Act also could not come into operation and the applications in Miscellaneous Cases Nos. 26 and 27 of 1955 were not maintainable. 24. The result is no doubt unfortunate; because the Industrial disputes which were referred to the Industrial Tribunal by the reference in question were general in their nature and would comprise within their scope the workmen who were working in the Gaya Sugar Mills Ltd., at all relevant times. The appellant came in management of the said Mills from and after 6-12-1954, and it was certainly intended that these disputes which had either existed or were apprehended between the appellant on the one hand and the workmen working in the said Mills on the other should be adjudicated upon under the terms of that reference. If the appellant could be comprised within the description of the "management" of the said Mills at the date of the reference, viz., 2-12-1954, the object and the purpose of the reference qua the workmen of the said Mills would be accomplished. The difficulty, however, is that the several managements which would come into existence on successive leases being granted by the Court in the present case cannot be said to have been comprised within the term "managements of the Sugar factories specified in Appendix I" even though the Gaya Sugar Mills Ltd., Guraru is mentioned as item 2 therein. Such a construction would make the several successive lessees who came into existence during the whole of the period when the reference was pending before the Industrial Tribunal parties to the reference involving fresh notices to be issued, fresh statements of case to be furnished, fresh hearing to be granted, to each of the successive lessees under the Industrial Disputes (Central) Rules, 1947, a result which certainly could not have been contemplated by the State Government when the reference was made. 25. It, therefore, follows that the appellant was not by any count a party to the reference dated 2-12-1954, and not being such a party was not an "employer" within the meaning of Ss. 33 and 33A of the Industrial Disputes Act qua the workmen who filed the applications in Miscellaneous Cases Nos. 26 and 27 of 1955. If the workmen felt that they have been victimised or that there had been an unfair labour practice, they could perhaps raise fresh industrial disputes and press the State Government to make a fresh reference of their industrial disputes under S. 10 (1) of the Act, as to which we say nothing, but it is quite clear to us that the workmen cannot in the circumstances of this case raise an industrial dispute indirectly by having recourse to an application under S. 33A of the Act. In the premises if the appellant was not bound, as we hold it was not, to ask for the written permission of the Industrial Tribunal before discharging, punishing or effecting a change in the conditions of service of the workmen concerned no application under S. 33A of the Act could be maintained against it even on the assumption that the allegations made in the said applications were correct. | 1[ds]Section 171, Indian Companies Act occurs in Part V which relates to the winding up of companies and prescribes that once a winding up order has been made no suit or other legal proceedings shall be proceeded with or commenced against the Company except by leave of the winding up Court and subject to such terms as the Court may impose. The Court is in custody of all the properties and assets of the Company through the liquidator and is in control of the winding up proceedings with a view to the proper realization of the assets and the equitable distribution thereof amongst the creditors of the Company. No suit or other legal proceeding can therefore be proceeded with or commenced against the Company except by leave of the Court and such leave is a necessary prerequisite of the prosecution of such legal proceeding25. It, therefore, follows that the appellant was not by any count a party to the reference dated 2-12-1954, and not being such a party was not an "employer" within the meaning of Ss. 33 and 33A of the Industrial Disputes Act qua the workmen who filed the applications in Miscellaneous Cases Nos. 26 and 27 of 1955. If the workmen felt that they have been victimised or that there had been an unfair labour practice, they could perhaps raise fresh industrial disputes and press the State Government to make a fresh reference of their industrial disputes under S. 10 (1) of the Act, as to which we say nothing, but it is quite clear to us that the workmen cannot in the circumstances of this case raise an industrial dispute indirectly by having recourse to an application under S. 33A of the Act. In the premises if the appellant was not bound, as we hold it was not, to ask for the written permission of the Industrial Tribunal before discharging, punishing or effecting a change in the conditions of service of the workmen concerned no application under S. 33A of the Act could be maintained against it even on the assumption that the allegations made in the said applications were correct3. If that is the true position, no question of the appellant obtaining written permission of the Industrial Tribunal under S. 33 of the Act for discharging or punishing or for effecting a change in the conditions of service of the workmen concerned could arise. If no such permission were needed, S. 33A of the Act also could not come into operation and the applications in Miscellaneous Cases Nos. 26 and 27 of 1955 were not maintainable. | 1 | 7,367 | 463 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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of the reference or even to serve on the appellant a notice of the proceedings which were to take place before the Industrial Tribunal. Under the Industrial Disputes (Central) Rules,1947 enacted by the Central Government in exercise of the powers conferred upon it by S. 38 of the Industrial Disputes Act, intimation of the place and time of hearing had got to be given to the parties to the reference (Rule 10); and the Industrial Tribunal was enjoined to call upon the parties at the first sitting to state their case (Rule 11); the only power given to the Industrial Tribunal to proceed ex parte was when a party to the proceedings failed to attend or to be represented without good cause shown (Rule 19); and, the representatives of the parties appearing before an Industrial Tribunal were to have the right of examination, cross-examination and of addressing the Tribunal when evidence had been called (Rule 24) : The whole of this procedure envisaged the parties to the reference being properly notified of the proceedings before the, Industrial Tribunal and taking part therein either by themselves or through their authorised representatives. The fact that no such notice was given to the appellant by the Industrial Tribunal goes to show that in the circumstances that obtained the appellant was certainly not understood by the Tribunal as having been a party to the reference and it could not be said on the terms of the reference itself which was made on 2-12-1954, that the appellant, which came into existence as the lessees of the said Mills on 6-12-1954, was a party to the said reference. If the old lessees were in management of the said Mills on 2-12-1954, there was no identity of employers as between them and the appellant, the appellant certainly did not claim under the old lessees nor could it be described as their "heirs, successors or assigns" in respect of the establishment to which the dispute related within the meaning of S. 18 (3(c) of the Industrial Disputes Act. There is no suggestion whatever that the appellant was or is a benamidar of the previous lessees. In no event could the appellant therefore be held to be bound either by the reference or the award made by the Industrial Tribunal, the identity of the employers at the date of the reference with the employers at the time when the acts complained of in the applications under S. 33A of the Industrial Disputes Act were purported to be done by them not having been established. 23. If that is the true position, no question of the appellant obtaining written permission of the Industrial Tribunal under S. 33 of the Act for discharging or punishing or for effecting a change in the conditions of service of the workmen concerned could arise. If no such permission were needed, S. 33A of the Act also could not come into operation and the applications in Miscellaneous Cases Nos. 26 and 27 of 1955 were not maintainable. 24. The result is no doubt unfortunate; because the Industrial disputes which were referred to the Industrial Tribunal by the reference in question were general in their nature and would comprise within their scope the workmen who were working in the Gaya Sugar Mills Ltd., at all relevant times. The appellant came in management of the said Mills from and after 6-12-1954, and it was certainly intended that these disputes which had either existed or were apprehended between the appellant on the one hand and the workmen working in the said Mills on the other should be adjudicated upon under the terms of that reference. If the appellant could be comprised within the description of the "management" of the said Mills at the date of the reference, viz., 2-12-1954, the object and the purpose of the reference qua the workmen of the said Mills would be accomplished. The difficulty, however, is that the several managements which would come into existence on successive leases being granted by the Court in the present case cannot be said to have been comprised within the term "managements of the Sugar factories specified in Appendix I" even though the Gaya Sugar Mills Ltd., Guraru is mentioned as item 2 therein. Such a construction would make the several successive lessees who came into existence during the whole of the period when the reference was pending before the Industrial Tribunal parties to the reference involving fresh notices to be issued, fresh statements of case to be furnished, fresh hearing to be granted, to each of the successive lessees under the Industrial Disputes (Central) Rules, 1947, a result which certainly could not have been contemplated by the State Government when the reference was made. 25. It, therefore, follows that the appellant was not by any count a party to the reference dated 2-12-1954, and not being such a party was not an "employer" within the meaning of Ss. 33 and 33A of the Industrial Disputes Act qua the workmen who filed the applications in Miscellaneous Cases Nos. 26 and 27 of 1955. If the workmen felt that they have been victimised or that there had been an unfair labour practice, they could perhaps raise fresh industrial disputes and press the State Government to make a fresh reference of their industrial disputes under S. 10 (1) of the Act, as to which we say nothing, but it is quite clear to us that the workmen cannot in the circumstances of this case raise an industrial dispute indirectly by having recourse to an application under S. 33A of the Act. In the premises if the appellant was not bound, as we hold it was not, to ask for the written permission of the Industrial Tribunal before discharging, punishing or effecting a change in the conditions of service of the workmen concerned no application under S. 33A of the Act could be maintained against it even on the assumption that the allegations made in the said applications were correct.
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Section 171, Indian Companies Act occurs in Part V which relates to the winding up of companies and prescribes that once a winding up order has been made no suit or other legal proceedings shall be proceeded with or commenced against the Company except by leave of the winding up Court and subject to such terms as the Court may impose. The Court is in custody of all the properties and assets of the Company through the liquidator and is in control of the winding up proceedings with a view to the proper realization of the assets and the equitable distribution thereof amongst the creditors of the Company. No suit or other legal proceeding can therefore be proceeded with or commenced against the Company except by leave of the Court and such leave is a necessary prerequisite of the prosecution of such legal proceeding25. It, therefore, follows that the appellant was not by any count a party to the reference dated 2-12-1954, and not being such a party was not an "employer" within the meaning of Ss. 33 and 33A of the Industrial Disputes Act qua the workmen who filed the applications in Miscellaneous Cases Nos. 26 and 27 of 1955. If the workmen felt that they have been victimised or that there had been an unfair labour practice, they could perhaps raise fresh industrial disputes and press the State Government to make a fresh reference of their industrial disputes under S. 10 (1) of the Act, as to which we say nothing, but it is quite clear to us that the workmen cannot in the circumstances of this case raise an industrial dispute indirectly by having recourse to an application under S. 33A of the Act. In the premises if the appellant was not bound, as we hold it was not, to ask for the written permission of the Industrial Tribunal before discharging, punishing or effecting a change in the conditions of service of the workmen concerned no application under S. 33A of the Act could be maintained against it even on the assumption that the allegations made in the said applications were correct3. If that is the true position, no question of the appellant obtaining written permission of the Industrial Tribunal under S. 33 of the Act for discharging or punishing or for effecting a change in the conditions of service of the workmen concerned could arise. If no such permission were needed, S. 33A of the Act also could not come into operation and the applications in Miscellaneous Cases Nos. 26 and 27 of 1955 were not maintainable.
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APOLLO ZIPPER INDIA LIMITED Vs. W. NEWMAN AND CO. LTD | following Para 6 of the decision is apposite which reads as under: “6. The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the defendant is admitted in the written statement. The defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice under Section 106 of the TP Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the plaintiff as Ext. P-4.” 60. Second, the respondent by letters dated 13.06.2006, 27.06.2006, 05.07.2006 and 11.07.2006, sent to the appellant on the question of ownership of the suit premises and payment of rent had expressed their willingness to attorn and continue the tenancy with the appellant and also offered to pay rent to the appellant. (See pages 198 & 199 of the SLP Paper Book-order of the Single Judge)61. Third, the respondent in their civil suit (No.1183 of 2012) filed against the appellant in Paras 15, 17, 18 and relief clause (e) of the plaint admitted the ownership of the appellant over the suit premises and went to the extent of seeking the mandatory injunction against the appellant directing them to accept the monthly rent of the suit premises from the respondent.62. In other words, reading of the aforementioned paras in the respondent’s plaint including the relief clause (e) would go to show that the respondent was all along willing to accept and indeed actually accepted the ownership of the appellant over the suit premises and, therefore, sought mandatory injunction against the appellant to accept them as tenant. The conduct of the respondent, therefore, disentitles them to now raise a new plea questioning the title of the appellant over the suit premises and a plea of attornment. Both, in our opinion, are wholly misconceived pleas and, therefore, deserve to be rejected.63. As mentioned above, the title of the landlord over the tenanted premises in a suit for eviction cannot be examined like a title suit. Similarly, the attornment can be proved by several circumstances including taking into consideration the conduct of the tenant qua landlord.64. The aforesaid three circumstances, in our opinion, are, therefore, more than sufficient to record a finding that the appellant was prima facie able to prove their title over the suit premises so also was able to prove the factum of“attornment”made by the respondent in relation to the suit premises in appellant’s favour thereby entitling the appellant to determine the contractual tenancy which was devolved upon them by operation of law.65. In the light of the foregoing discussion, we are unable to agree with the view taken by the Division Bench that there was some dispute or confusion as to who is the owner of the suit premises. In our view, there was neither any dispute and nor confusion and nor any ambiguity over the question of title over the suit premises which needed any elaborate inquiry. 66. This takes us to examine the next question as to what was the monthly rent of the suit premises – whether Rs.1600/- towards monthly rent and Rs.38,400/- towards maintenance charges as claimed by the respondent or Rs.40,000/- as claimed by the appellant. 67. In our view, the monthly rent of the suit premises was Rs.40,000/-. It is for the reason that Firstly, the respondent had been paying Rs.40,000/- per month to their previous landlord – GEHA for a long time; Second, the bifurcation of Rs.40,000/- was being sought by the respondent so that they may get the benefit of applicability of the Tenancy Act to defend therein tenant’s right which they failed to prove and lastly, the rent receipts filed by the parties clearly proved that the monthly rent of the suit premises was Rs.40,000/- and not Rs.1600/-. 68. This takes us to examine the next question as to whether the suit filed by the appellant invoking the provisions of the TP Act was maintainable or it should have been filed under the Tenancy Act. 69. In our opinion, the appellant rightly filed the suit by invoking the provisions of the TP Act. It is for the reason that once the monthly rent of the suit premises was found to exceed the limit prescribed under Section 3(f) of the Tenancy Act, the provisions of the Tenancy Act had no application to the suit premises.70. Section 3(f) of the Tenancy Act says that any premises let out for non-residential purpose when carries more than Rs. 10,000/- as monthly rent in the areas included within the limits of Municipal Corporation, the provisions of the Tenancy Act will not apply.71. In the case at hand, the monthly rent of the suit premises was Rs.40,000/- and, therefore, the appellant was well within their right to file summary suit against the tenants eviction and for recovery of the arrears of rent by taking recourse to the provisions of the TP Act read with Rule 1(B) of The Rules applicable to the suits filed on the original side jurisdiction of the High Court at Calcutta.72. In the light of the foregoing discussion, we are of the view that the respondent failed to raise any arguable and substantial defense as required under Rule 6 read with Rule 9 of the Rules and the three grounds raised for seeking leave to defend the suit were only for the sake of raising and had no factual or/and legal foundation to stand for trial in the suit and hence no leave can be granted to the respondent on such grounds under Rule 9 of the Rules. It was, therefore, rightly declined by the Single Judge but wrongly granted by the Division Bench. | 1[ds]41. Having heard the learned counsel for the parties and on perusal of the record of the case, we are inclined to allow the appeal, set aside the impugned judgment and restore the order of the Single Judge.42. In our considered opinion, the reasoning and the conclusion arrived at by the Single Judge while declining to grant leave to defend the suit to the respondent and decreeing thesuit for eviction deserves to be restored as against the impugned judgment passed by the Division Bench.43. In other words, we are of the considered opinion that the grounds, which were pressed in service by the respondent, to seek leave to defend the suit are neither arguable nor have any prima facie merit therein and, therefore, there does not arise any need to have any trial in the suit on merits on such grounds. This we say for the following reasons.It is a settled principle of law laid down by this Court that in an eviction suit filed by the landlord against the tenant under the Rent Laws, when the issue of title over the tenanted premises is raised, the landlord is not expected to prove his title like what he is required to prove in a title suit.It is equallylaw with regard to attornment that it does not create any new tenancy but once the factum of attornment is proved then by virtue of such attornment, the old tenancy continues. (See Uppalapati Veera Venkata Satyanarayanaraju & Anr. Vs. Josyula Hanumayamma & Anr. AIR 1967 SC 174 ).49. In the case at hand, we find that it is not in dispute that the original owner of the suit premises was GEHL, who had created the original contract of tenancy with the respondent in relation to the suit premises.50. It is also not in dispute that the GEHL was then acquired by the State by Act of 1975 andof 1980, as a consequence thereof, the suit premises stood vested in an authority called the GEHA by operation of law as per Section 3 read with Section 5 of80 with effectand 22.06.1981.51. It is also not in dispute that the respondent accepted this change of ownership and accordingly started paying monthly rent to the GEHA from 1980 as monthly tenant of the GEHA and which they paid till 2005.52. It is also not in dispute that in terms of the notification issued by the Governor on 05.10.2005 under Section 3(2) ofof 1980, the suit premises then stood transferred and vested in the(see notification dated 05.10.2005) by operation of law and the appellant accordingly became the owner of the suit premises with effect from 05.10.2005.53. It is further not in dispute that the GEHA and their lawyer, vide letters dated 24.02.2006 and 28.04.2006, informed the respondent about the change of ownership of the suit premises and the appellant acquiring the ownership of the suit premises vide notification dated 05.10.2005.54. In our considered opinion, the aforementioned undisputed facts, which are matter of record, are sufficient to hold in the eviction suit that the appellant became the owner of the suit premises with effect from 05.10.2005.55. In our considered view, the respondent also attorned to the appellant and accepted the ownership of the appellant over the suit premises, which is prima facie proved by the three facts and circumstances as set out below.56. First, when the appellant sent a quit notice dated 17.05.2012 to the respondent under Section 106 ofct determining the tenancy and calling upon the respondent to pay the arrears of rent and vacate the suit premises, despite receipt of the quit notice, they did not reply to it.57. In our view, the respondent ought to have replied to the notice at the first available opportunity, which they failed to do so. It amounts to waiver on their part to challenge the invalidity or infirmity of the quit notice including the ownership issue raised therein.Second, the respondent by letters dated 13.06.2006, 27.06.2006, 05.07.2006 and 11.07.2006, sent to the appellant on the question of ownership of the suit premises and payment of rent had expressed their willingness to attorn and continue the tenancy with the appellant and also offered to pay rent to the appellant. (See pages 198 & 199 of the SLP Paperof the Single Judge)61. Third, the respondent in their civil suit (No.1183 of 2012) filed against the appellant in Paras 15, 17, 18 and relief clause (e) of the plaint admitted the ownership of the appellant over the suit premises and went to the extent of seeking the mandatory injunction against the appellant directing them to accept the monthly rent of the suit premises from the respondent.62. In other words, reading of the aforementioned paras in theplaint including the relief clause (e) would go to show that the respondent was all along willing to accept and indeed actually accepted the ownership of the appellant over the suit premises and, therefore, sought mandatory injunction against the appellant to accept them as tenant. The conduct of the respondent, therefore, disentitles them to now raise a new plea questioning the title of the appellant over the suit premises and a plea of attornment. Both, in our opinion, are wholly misconceived pleas and, therefore, deserve to be rejected.63. As mentioned above, the title of the landlord over the tenanted premises in a suit for eviction cannot be examined like a title suit. Similarly, the attornment can be proved by several circumstances including taking into consideration the conduct of the tenant qua landlord.64. The aforesaid three circumstances, in our opinion, are, therefore, more than sufficient to record a finding that the appellant was prima facie able to prove their title over the suit premises so also was able to prove the factumby the respondent in relation to the suit premises infavour thereby entitling the appellant to determine the contractual tenancy which was devolved upon them by operation of law.65. In the light of the foregoing discussion, we are unable to agree with the view taken by the Division Bench that there was some dispute or confusion as to who is the owner of the suit premises. In our view, there was neither any dispute and nor confusion and nor any ambiguity over the question of title over the suit premises which needed any elaborate inquiry.In our view, the monthly rent of the suit premises was Rs.It is for the reason that Firstly, the respondent had been paying Rs.40,000/per month to their previous landlord – GEHA for a long time; Second, the bifurcation of Rs.40,000/was being sought by the respondent so that they may get the benefit of applicability of the Tenancy Act to defend thereinright which they failed to prove and lastly, the rent receipts filed by the parties clearly proved that the monthly rent of the suit premises was Rs.40,000/9. In our opinion, the appellant rightly filed the suit by invoking the provisions oft. It is for the reason that once the monthly rent of the suit premises was found to exceed the limit prescribed under Section 3(f) of the Tenancy Act, the provisions of the Tenancy Act had no application to the suit premises.70. Section 3(f) of the Tenancy Act says that any premises let out forpurpose when carries more than Rs. 10,000/as monthly rent in the areas included within the limits of Municipal Corporation, the provisions of the Tenancy Act will not apply.71. In the case at hand, the monthly rent of the suit premises was Rs.40,000/and, therefore, the appellant was well within their right to file summary suit against theeviction and for recovery of the arrears of rent by taking recourse to the provisions ofct read with Rule 1(B) of The Rules applicable to the suits filed on the original side jurisdiction of the High Court at Calcutta.72. In the light of the foregoing discussion, we are of the view that the respondent failed to raise any arguable and substantial defense as required under Rule 6 read with Rule 9 of the Rules and the three grounds raised for seeking leave to defend the suit were only for the sake of raising and had no factual or/and legal foundation to stand for trial in the suit and hence no leave can be granted to the respondent on such grounds under Rule 9 of the Rules. It was, therefore, rightly declined by the Single Judge but wrongly granted by the Division Bench. | 1 | 4,841 | 1,528 | ### 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:
following Para 6 of the decision is apposite which reads as under: “6. The singular question to be examined in the present case is whether the tenancy was terminated in accordance with the provisions of Section 106 of the Transfer of Property Act. The receipt of notice by the defendant is admitted in the written statement. The defendant has not raised any specific objection as to the validity of the notice. An objection as to invalidity or infirmity of notice under Section 106 of the TP Act should be raised specifically and at the earliest; else it will be deemed to have been waived even if there exists one. It cannot, therefore, be said that the notice in the present case suffered from any infirmity. A copy of the notice was exhibited and proved by the plaintiff as Ext. P-4.” 60. Second, the respondent by letters dated 13.06.2006, 27.06.2006, 05.07.2006 and 11.07.2006, sent to the appellant on the question of ownership of the suit premises and payment of rent had expressed their willingness to attorn and continue the tenancy with the appellant and also offered to pay rent to the appellant. (See pages 198 & 199 of the SLP Paper Book-order of the Single Judge)61. Third, the respondent in their civil suit (No.1183 of 2012) filed against the appellant in Paras 15, 17, 18 and relief clause (e) of the plaint admitted the ownership of the appellant over the suit premises and went to the extent of seeking the mandatory injunction against the appellant directing them to accept the monthly rent of the suit premises from the respondent.62. In other words, reading of the aforementioned paras in the respondent’s plaint including the relief clause (e) would go to show that the respondent was all along willing to accept and indeed actually accepted the ownership of the appellant over the suit premises and, therefore, sought mandatory injunction against the appellant to accept them as tenant. The conduct of the respondent, therefore, disentitles them to now raise a new plea questioning the title of the appellant over the suit premises and a plea of attornment. Both, in our opinion, are wholly misconceived pleas and, therefore, deserve to be rejected.63. As mentioned above, the title of the landlord over the tenanted premises in a suit for eviction cannot be examined like a title suit. Similarly, the attornment can be proved by several circumstances including taking into consideration the conduct of the tenant qua landlord.64. The aforesaid three circumstances, in our opinion, are, therefore, more than sufficient to record a finding that the appellant was prima facie able to prove their title over the suit premises so also was able to prove the factum of“attornment”made by the respondent in relation to the suit premises in appellant’s favour thereby entitling the appellant to determine the contractual tenancy which was devolved upon them by operation of law.65. In the light of the foregoing discussion, we are unable to agree with the view taken by the Division Bench that there was some dispute or confusion as to who is the owner of the suit premises. In our view, there was neither any dispute and nor confusion and nor any ambiguity over the question of title over the suit premises which needed any elaborate inquiry. 66. This takes us to examine the next question as to what was the monthly rent of the suit premises – whether Rs.1600/- towards monthly rent and Rs.38,400/- towards maintenance charges as claimed by the respondent or Rs.40,000/- as claimed by the appellant. 67. In our view, the monthly rent of the suit premises was Rs.40,000/-. It is for the reason that Firstly, the respondent had been paying Rs.40,000/- per month to their previous landlord – GEHA for a long time; Second, the bifurcation of Rs.40,000/- was being sought by the respondent so that they may get the benefit of applicability of the Tenancy Act to defend therein tenant’s right which they failed to prove and lastly, the rent receipts filed by the parties clearly proved that the monthly rent of the suit premises was Rs.40,000/- and not Rs.1600/-. 68. This takes us to examine the next question as to whether the suit filed by the appellant invoking the provisions of the TP Act was maintainable or it should have been filed under the Tenancy Act. 69. In our opinion, the appellant rightly filed the suit by invoking the provisions of the TP Act. It is for the reason that once the monthly rent of the suit premises was found to exceed the limit prescribed under Section 3(f) of the Tenancy Act, the provisions of the Tenancy Act had no application to the suit premises.70. Section 3(f) of the Tenancy Act says that any premises let out for non-residential purpose when carries more than Rs. 10,000/- as monthly rent in the areas included within the limits of Municipal Corporation, the provisions of the Tenancy Act will not apply.71. In the case at hand, the monthly rent of the suit premises was Rs.40,000/- and, therefore, the appellant was well within their right to file summary suit against the tenants eviction and for recovery of the arrears of rent by taking recourse to the provisions of the TP Act read with Rule 1(B) of The Rules applicable to the suits filed on the original side jurisdiction of the High Court at Calcutta.72. In the light of the foregoing discussion, we are of the view that the respondent failed to raise any arguable and substantial defense as required under Rule 6 read with Rule 9 of the Rules and the three grounds raised for seeking leave to defend the suit were only for the sake of raising and had no factual or/and legal foundation to stand for trial in the suit and hence no leave can be granted to the respondent on such grounds under Rule 9 of the Rules. It was, therefore, rightly declined by the Single Judge but wrongly granted by the Division Bench.
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1
### Explanation:
issued by the Governor on 05.10.2005 under Section 3(2) ofof 1980, the suit premises then stood transferred and vested in the(see notification dated 05.10.2005) by operation of law and the appellant accordingly became the owner of the suit premises with effect from 05.10.2005.53. It is further not in dispute that the GEHA and their lawyer, vide letters dated 24.02.2006 and 28.04.2006, informed the respondent about the change of ownership of the suit premises and the appellant acquiring the ownership of the suit premises vide notification dated 05.10.2005.54. In our considered opinion, the aforementioned undisputed facts, which are matter of record, are sufficient to hold in the eviction suit that the appellant became the owner of the suit premises with effect from 05.10.2005.55. In our considered view, the respondent also attorned to the appellant and accepted the ownership of the appellant over the suit premises, which is prima facie proved by the three facts and circumstances as set out below.56. First, when the appellant sent a quit notice dated 17.05.2012 to the respondent under Section 106 ofct determining the tenancy and calling upon the respondent to pay the arrears of rent and vacate the suit premises, despite receipt of the quit notice, they did not reply to it.57. In our view, the respondent ought to have replied to the notice at the first available opportunity, which they failed to do so. It amounts to waiver on their part to challenge the invalidity or infirmity of the quit notice including the ownership issue raised therein.Second, the respondent by letters dated 13.06.2006, 27.06.2006, 05.07.2006 and 11.07.2006, sent to the appellant on the question of ownership of the suit premises and payment of rent had expressed their willingness to attorn and continue the tenancy with the appellant and also offered to pay rent to the appellant. (See pages 198 & 199 of the SLP Paperof the Single Judge)61. Third, the respondent in their civil suit (No.1183 of 2012) filed against the appellant in Paras 15, 17, 18 and relief clause (e) of the plaint admitted the ownership of the appellant over the suit premises and went to the extent of seeking the mandatory injunction against the appellant directing them to accept the monthly rent of the suit premises from the respondent.62. In other words, reading of the aforementioned paras in theplaint including the relief clause (e) would go to show that the respondent was all along willing to accept and indeed actually accepted the ownership of the appellant over the suit premises and, therefore, sought mandatory injunction against the appellant to accept them as tenant. The conduct of the respondent, therefore, disentitles them to now raise a new plea questioning the title of the appellant over the suit premises and a plea of attornment. Both, in our opinion, are wholly misconceived pleas and, therefore, deserve to be rejected.63. As mentioned above, the title of the landlord over the tenanted premises in a suit for eviction cannot be examined like a title suit. Similarly, the attornment can be proved by several circumstances including taking into consideration the conduct of the tenant qua landlord.64. The aforesaid three circumstances, in our opinion, are, therefore, more than sufficient to record a finding that the appellant was prima facie able to prove their title over the suit premises so also was able to prove the factumby the respondent in relation to the suit premises infavour thereby entitling the appellant to determine the contractual tenancy which was devolved upon them by operation of law.65. In the light of the foregoing discussion, we are unable to agree with the view taken by the Division Bench that there was some dispute or confusion as to who is the owner of the suit premises. In our view, there was neither any dispute and nor confusion and nor any ambiguity over the question of title over the suit premises which needed any elaborate inquiry.In our view, the monthly rent of the suit premises was Rs.It is for the reason that Firstly, the respondent had been paying Rs.40,000/per month to their previous landlord – GEHA for a long time; Second, the bifurcation of Rs.40,000/was being sought by the respondent so that they may get the benefit of applicability of the Tenancy Act to defend thereinright which they failed to prove and lastly, the rent receipts filed by the parties clearly proved that the monthly rent of the suit premises was Rs.40,000/9. In our opinion, the appellant rightly filed the suit by invoking the provisions oft. It is for the reason that once the monthly rent of the suit premises was found to exceed the limit prescribed under Section 3(f) of the Tenancy Act, the provisions of the Tenancy Act had no application to the suit premises.70. Section 3(f) of the Tenancy Act says that any premises let out forpurpose when carries more than Rs. 10,000/as monthly rent in the areas included within the limits of Municipal Corporation, the provisions of the Tenancy Act will not apply.71. In the case at hand, the monthly rent of the suit premises was Rs.40,000/and, therefore, the appellant was well within their right to file summary suit against theeviction and for recovery of the arrears of rent by taking recourse to the provisions ofct read with Rule 1(B) of The Rules applicable to the suits filed on the original side jurisdiction of the High Court at Calcutta.72. In the light of the foregoing discussion, we are of the view that the respondent failed to raise any arguable and substantial defense as required under Rule 6 read with Rule 9 of the Rules and the three grounds raised for seeking leave to defend the suit were only for the sake of raising and had no factual or/and legal foundation to stand for trial in the suit and hence no leave can be granted to the respondent on such grounds under Rule 9 of the Rules. It was, therefore, rightly declined by the Single Judge but wrongly granted by the Division Bench.
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Harpal Singh Vs. Ashok Kumar & Another | of the Schedule 3 aforesaid. (3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof. (4) A second appeal shall lie from the final order passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid.). This position of law has not been controverted in the present proceedings. 7. The validity of a decree can be challenged before an executing court only on the ground of an inherent lack of jurisdiction which renders the decree a nullity. In Hira Lal Patni v Sri Kali Nath (1962) 2 SCR 747 ), this Court held thus: …The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it… In Sunder Dass v Ram Prakash (1977) 2 SCC 662 ), this court held that: Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan [AIR 1954 SC 340 : (1955) 1 SCR 117 ] and Seth Hiralal Patni v. Sri Kali Nath [AIR 1962 SC 199 : (1962) 2 SCR 747 ]. It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent. [See also Gaon Sabha v Nathi (2004) 12 SCC 555 )] 8. In the present case, the finding of fact which was arrived at by the executing Court in the course of its decision on the objection to execution is that the land had ceased to be agricultural land and was not being used for purposes contemplated under the Delhi Land Reforms Act 1954. The High Court while affirming the view of the executing court made the following observations: …But in the present case, the Decree Holder had shown electricity bills pertaining to the same Khasra number and the Court also considered that most rural lands in Delhi have become urbanized and private unauthorized colonies have mushroomed on agricultural lands. Therefore, in fact, the said land had lost its character of agricultural land. Besides, the suit was filed under Section 6 of the Specific Relief Act for declaration and possession along with injunction and other consequential reliefs. The executing Court found that the objector had not shown as to how the said suit was not maintainable. It relied upon the dicta of the Supreme Court in Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199 which held that the validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it. But in the instant case there was no such inherent lack of jurisdiction. 9. The above findings have not been squarely challenged in these proceedings. The suit which was decreed on 30 May 2009 was a suit under Section 6 of the Specific Relief Act which in any event, did not require a determination of the question of title. The earlier suit was a suit for injunction. The finding of fact which has been arrived at is to the effect that the land in question had ceased to be agricultural in nature on the date of the institution of the suit. Hence, it cannot be held that the decree of the trial court was a nullity. The land was not governed, as a result, by the Delhi Land Reforms Act, 1954 since it was not agricultural and the bar under Section 185 was not attracted. There was no inherent lack of jurisdiction and the objection to the execution of the decree was without foundation. | 0[ds]8. In the present case, the finding of fact which was arrived at by the executing Court in the course of its decision on the objection to execution is that the land had ceased to be agricultural land and was not being used for purposes contemplated under the Delhi Land Reforms Act 1954The High Court while affirming the view of the executing court made the following observations:…But in the present case, the Decree Holder had shown electricity bills pertaining to the same Khasra number and the Court also considered that most rural lands in Delhi have become urbanized and private unauthorized colonies have mushroomed on agricultural lands. Therefore, in fact, the said land had lost its character of agricultural land. Besides, the suit was filed under Section 6 of the Specific Relief Act for declaration and possession along with injunction and other consequential reliefs. The executing Court found that the objector had not shown as to how the said suit was not maintainable. It relied upon the dicta of the Supreme Court in Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199 which held that the validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it. But in the instant case there was no such inherent lack of jurisdiction9. The above findings have not been squarely challenged in these proceedings. The suit which was decreed on 30 May 2009 was a suit under Section 6 of the Specific Relief Act which in any event, did not require a determination of the question of title. The earlier suit was a suit for injunction. The finding of fact which has been arrived at is to the effect that the land in question had ceased to be agricultural in nature on the date of the institution of the suit. Hence, it cannot be held that the decree of the trial court was a nullity. The land was not governed, as a result, by the Delhi Land Reforms Act, 1954 since it was not agricultural and the bar under Section 185 was not attracted. There was no inherent lack of jurisdiction and the objection to the execution of the decree was without foundation. | 0 | 2,337 | 481 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
### Input:
of the Schedule 3 aforesaid. (3) An appeal shall lie from the final order passed by a court mentioned in column 3 to the court or authority mentioned in column 8 thereof. (4) A second appeal shall lie from the final order passed in an appeal under sub-section (3) to the authority, if any, mentioned against it in column 9 of the Schedule aforesaid.). This position of law has not been controverted in the present proceedings. 7. The validity of a decree can be challenged before an executing court only on the ground of an inherent lack of jurisdiction which renders the decree a nullity. In Hira Lal Patni v Sri Kali Nath (1962) 2 SCR 747 ), this Court held thus: …The validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking in inherent jurisdiction in the sense that it could not have seisin of the case because the subject-matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject-matter of the suit or over the parties to it… In Sunder Dass v Ram Prakash (1977) 2 SCC 662 ), this court held that: Now, the law is well settled that an executing court cannot go behind the decree nor can it question its legality or correctness. But there is one exception to this general rule and that is that where the decree sought to be executed is a nullity for lack of inherent jurisdiction in the court passing it, its invalidity can be set up in an execution proceeding. Where there is lack of inherent jurisdiction, it goes to the root of the competence of the court to try the case and a decree which is a nullity is void and can be declared to be void by any court in which it is presented. Its nullity can be set up whenever and wherever it is sought to be enforced or relied upon and even at the stage of execution or even in collateral proceedings. The executing court can, therefore, entertain an objection that the decree is a nullity and can refuse to execute the decree. By doing so, the executing court would not incur the reproach that it is going behind the decree, because the decree being null and void, there would really be no decree at all. Vide Kiran Singh v. Chaman Paswan [AIR 1954 SC 340 : (1955) 1 SCR 117 ] and Seth Hiralal Patni v. Sri Kali Nath [AIR 1962 SC 199 : (1962) 2 SCR 747 ]. It is, therefore, obvious that in the present case, it was competent to the executing court to examine whether the decree for eviction was a nullity on the ground that the civil court had no inherent jurisdiction to entertain the suit in which the decree for eviction was passed. If the decree for eviction was a nullity, the executing court could declare it to be such and decline to execute it against the respondent. [See also Gaon Sabha v Nathi (2004) 12 SCC 555 )] 8. In the present case, the finding of fact which was arrived at by the executing Court in the course of its decision on the objection to execution is that the land had ceased to be agricultural land and was not being used for purposes contemplated under the Delhi Land Reforms Act 1954. The High Court while affirming the view of the executing court made the following observations: …But in the present case, the Decree Holder had shown electricity bills pertaining to the same Khasra number and the Court also considered that most rural lands in Delhi have become urbanized and private unauthorized colonies have mushroomed on agricultural lands. Therefore, in fact, the said land had lost its character of agricultural land. Besides, the suit was filed under Section 6 of the Specific Relief Act for declaration and possession along with injunction and other consequential reliefs. The executing Court found that the objector had not shown as to how the said suit was not maintainable. It relied upon the dicta of the Supreme Court in Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199 which held that the validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it. But in the instant case there was no such inherent lack of jurisdiction. 9. The above findings have not been squarely challenged in these proceedings. The suit which was decreed on 30 May 2009 was a suit under Section 6 of the Specific Relief Act which in any event, did not require a determination of the question of title. The earlier suit was a suit for injunction. The finding of fact which has been arrived at is to the effect that the land in question had ceased to be agricultural in nature on the date of the institution of the suit. Hence, it cannot be held that the decree of the trial court was a nullity. The land was not governed, as a result, by the Delhi Land Reforms Act, 1954 since it was not agricultural and the bar under Section 185 was not attracted. There was no inherent lack of jurisdiction and the objection to the execution of the decree was without foundation.
### Response:
0
### Explanation:
8. In the present case, the finding of fact which was arrived at by the executing Court in the course of its decision on the objection to execution is that the land had ceased to be agricultural land and was not being used for purposes contemplated under the Delhi Land Reforms Act 1954The High Court while affirming the view of the executing court made the following observations:…But in the present case, the Decree Holder had shown electricity bills pertaining to the same Khasra number and the Court also considered that most rural lands in Delhi have become urbanized and private unauthorized colonies have mushroomed on agricultural lands. Therefore, in fact, the said land had lost its character of agricultural land. Besides, the suit was filed under Section 6 of the Specific Relief Act for declaration and possession along with injunction and other consequential reliefs. The executing Court found that the objector had not shown as to how the said suit was not maintainable. It relied upon the dicta of the Supreme Court in Hira Lal Patni v. Sri Kali Nath, AIR 1962 SC 199 which held that the validity of a decree can be challenged in execution proceedings only on the ground that the court which passed the decree was lacking inherent jurisdiction in the sense that it could not have seisin of the case because the subject matter was wholly foreign to its jurisdiction or that the defendant was dead at the time the suit had been instituted or decree passed, or some such other ground which could have the effect of rendering the court entirely lacking in jurisdiction in respect of the subject matter of the suit or over the parties to it. But in the instant case there was no such inherent lack of jurisdiction9. The above findings have not been squarely challenged in these proceedings. The suit which was decreed on 30 May 2009 was a suit under Section 6 of the Specific Relief Act which in any event, did not require a determination of the question of title. The earlier suit was a suit for injunction. The finding of fact which has been arrived at is to the effect that the land in question had ceased to be agricultural in nature on the date of the institution of the suit. Hence, it cannot be held that the decree of the trial court was a nullity. The land was not governed, as a result, by the Delhi Land Reforms Act, 1954 since it was not agricultural and the bar under Section 185 was not attracted. There was no inherent lack of jurisdiction and the objection to the execution of the decree was without foundation.
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Guruji Shrihar Baliram Jivatode Vs. Vithalrao & Ors | caused to get Exhibits 55 and 56 printed and published and completely ignored the true effect of the statements contained therein. It proceeded on the erroneous impression that every false or unjustified criticism of a candidate amounts to a contravention of Section 123 (4). Dealing with Exhibits 55 and 56 this is what the learned trial Judge observed:"To say against anybody that he is responsible for imposition of a tax without justification through that persons selfish and pretentious friend like the President of the Municipal Council is, to say the least, to suggest that person is the direct cause of harassment on account of such taxation on poor people. It is said in the third paragraph of the pamphlet and then there is a direct allegation against the petitioner that it is the petitioner who caused the cultivators in the Rajura Taluq to be burdened with the expense of fixing the border stones and that in doing so the petitioner Vithalrao Dote has solely secured an advantege for Abid Hussain Thekedar. In the fourth paragraph, it is categorically alleged that the petitioner Vithalrao Dhote has exploited and harassed poor people in order to benefit his, i.e., Vithalrao selfish and pretentious friends and such harassment has caused untold miseries. That these allegations are scurrilous does not admit of any doubt. They are defamatory per se. Every citizen is entitled to be presumed to be innocent until contrary is proved. If, therefore, an allegation of a personal character is made against anyone, it is the maker of the allegation who has to establish that there is truth in the allegation." It is clear that the High Court failed to examine the effect of the statements contained in Exhibits 55 and 56 by the tests prescribed in Section 123 (4). Further, there is no proof in this case that the statements contained in Exhibits 55 and 56 are reasonably calculated to prejudice the election of the respondent. The trial Court did not give any finding to that effect. 14. This leaves us with the question whether the appellant and announced in his election meetings that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing boundary stones. The High Court has held that the appellant made that accusation while addressing election meetings at two places. If that finding is correct then undoubtedly there is a contravention of Sec. 123 (4) but after carefully examining the material on record we have come to the conclusion that that finding in unsustainable. 15. The election petition was filed on April 11, 1967. That petition merely set out what according to the petitioner are the contents of Exhibits 55 and 56. It is not stated therein that apart from the statements contained in those pamphlets any other false statement of fact relating to the personal character or conduct of the first respondent had been made either by the appellant or his supporters. The allegation that the appellant in his election meeting had stated that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing the boundary stones is not mentioned there. An application to amend the election petition was made on June 24, 1967. In that application also there is no reference to the allegation in question. The election petition was again amended on 3-7-1967. It was only then the following allegation was made:"He (the appellant) was falsely alleging that the petitioner was or had actively helped Abid Hussain for his selfish ends to make illegal gains and thus allege falsely corrupt motives to him." Even this allegation is vague. That apart, it is a highly belated allegation. It appears to be an afterthought. It is not necessary for us to decide in this case whether such an amendment could have been permitted after the limitation for filing the election petition had expired. But the very circumstance that the allegation in question was made several months after the election petition, was filed by itself casts serious doubt on the veracity of that allegation. This circumstance was completely overlooked by the High Court. 16. The witness who spoke in support of the said allegation are the first respondent (P. W. 2), P. W. 9, Arjan Kashinath Masirkar and P. W. 12, Nazir Hussain Akbar Ali. So far as P. W. 2 is concerned, he is undoubtedly an interested witness. In the circumstances, mentioned above, his evidence can gave little pursuance value. So far as P. W. 9 is concerned on his own showing he was highly interested in the 1st respondent and the Congress Party. As elicited during his cross-examination he was a Congress candidate for election as a Sarpanch and as a member of the Panchayat Samiti. The appellants cousin was his rival in that election. Admittedly, during the last election he canvassed for the respondent. Under these circumstances much reliance cannot be placed on the testimony of this witness. Then we come to the evidence of P. W. 12. During his cross-examination this is what he stated:"I have not received a summons. Vithalrao had asked me to produce the register where the hire of cycles is noted and that is how the chits which I have filed came with the register...." His evidence is to the effect that the appellant while presiding over the meeting at Rajura on February 13, 1967 stated that the first respondent had a share in the contract for fixing of border stones which was procured for him by Vithalrao. When he was cross-examined about that meeting this is what he stated:"I dont remember who was the President of the meeting, I will not be able to name at this distance of time the names of persons from the town or the villagers who were listening at the meeting. I will not be able to name a single person from amongst these." Obviously he is a procured witness. No reliance can be placed on his evidence. | 0[ds]4. The bulk of the evidence adduced in this case relates to the controversy whether the appellant was responsible for the printing and publication of Exhs. 55 and 56. The High Court has accepted the case of the first respondent that the appellant was responsible for printing and publishing those pamphlets. We have been taken through that evidence and we agree with the High Court on that aspect of the case. It is not necessary to deal with evidence as we are opinion that the statements contained in those pamphlets do not amount to corrupt practice under section 123 (4) of the Act. Section 123 (4) reads:8. It is trite to say that the burden of providing every one of the ingredients of the corrupt practice alleged is on him who alleges it. If he fails to establish any of them to the satisfaction of the Court he must failHaving been elected in the first general elections, Shri Vithalrao Dhote would work for the benefit of the people and develop the backward Rajura Taluka was our expectation. But the people of Rajura Taluka have been utterly disappointed by Shri Vithalrao Dhote. In this taluka the High School which was there in the times of Nizam is the only High School in whole of Rajura Taluka till today. Shri Vithalrao Dhote could not construct a single pucca road. Could not supply electricity to any village anywhere. Could not make arrangements for watering agriculture. In this taluka though there are thousands of acres of fallow land, for distributing it to landless, no effort was made by Shri Vithalrao Dhote. In the last five years no work for the benefit of the people has been done by Vithalrao DhoteIt is clear that the High Court failed to examine the effect of the statements contained in Exhibits 55 and 56 by the tests prescribed in Section 123 (4). Further, there is no proof in this case that the statements contained in Exhibits 55 and 56 are reasonably calculated to prejudice the election of the respondent. The trial Court did not give any finding to that effectThe High Court has held that the appellant made that accusation while addressing election meetings at two places. If that finding is correct then undoubtedly there is a contravention of Sec. 123 (4) but after carefully examining the material on record we have come to the conclusion that that finding in unsustainable15. The election petition was filed on April 11, 1967. That petition merely set out what according to the petitioner are the contents of Exhibits 55 and 56. It is not stated therein that apart from the statements contained in those pamphlets any other false statement of fact relating to the personal character or conduct of the first respondent had been made either by the appellant or his supporters. The allegation that the appellant in his election meeting had stated that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing the boundary stones is not mentioned there. An application to amend the election petition was made on June 24, 1967. In that application also there is no reference to the allegation in question. The election petition was again amended on 3-7-1967. | 0 | 5,194 | 587 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
### Input:
caused to get Exhibits 55 and 56 printed and published and completely ignored the true effect of the statements contained therein. It proceeded on the erroneous impression that every false or unjustified criticism of a candidate amounts to a contravention of Section 123 (4). Dealing with Exhibits 55 and 56 this is what the learned trial Judge observed:"To say against anybody that he is responsible for imposition of a tax without justification through that persons selfish and pretentious friend like the President of the Municipal Council is, to say the least, to suggest that person is the direct cause of harassment on account of such taxation on poor people. It is said in the third paragraph of the pamphlet and then there is a direct allegation against the petitioner that it is the petitioner who caused the cultivators in the Rajura Taluq to be burdened with the expense of fixing the border stones and that in doing so the petitioner Vithalrao Dote has solely secured an advantege for Abid Hussain Thekedar. In the fourth paragraph, it is categorically alleged that the petitioner Vithalrao Dhote has exploited and harassed poor people in order to benefit his, i.e., Vithalrao selfish and pretentious friends and such harassment has caused untold miseries. That these allegations are scurrilous does not admit of any doubt. They are defamatory per se. Every citizen is entitled to be presumed to be innocent until contrary is proved. If, therefore, an allegation of a personal character is made against anyone, it is the maker of the allegation who has to establish that there is truth in the allegation." It is clear that the High Court failed to examine the effect of the statements contained in Exhibits 55 and 56 by the tests prescribed in Section 123 (4). Further, there is no proof in this case that the statements contained in Exhibits 55 and 56 are reasonably calculated to prejudice the election of the respondent. The trial Court did not give any finding to that effect. 14. This leaves us with the question whether the appellant and announced in his election meetings that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing boundary stones. The High Court has held that the appellant made that accusation while addressing election meetings at two places. If that finding is correct then undoubtedly there is a contravention of Sec. 123 (4) but after carefully examining the material on record we have come to the conclusion that that finding in unsustainable. 15. The election petition was filed on April 11, 1967. That petition merely set out what according to the petitioner are the contents of Exhibits 55 and 56. It is not stated therein that apart from the statements contained in those pamphlets any other false statement of fact relating to the personal character or conduct of the first respondent had been made either by the appellant or his supporters. The allegation that the appellant in his election meeting had stated that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing the boundary stones is not mentioned there. An application to amend the election petition was made on June 24, 1967. In that application also there is no reference to the allegation in question. The election petition was again amended on 3-7-1967. It was only then the following allegation was made:"He (the appellant) was falsely alleging that the petitioner was or had actively helped Abid Hussain for his selfish ends to make illegal gains and thus allege falsely corrupt motives to him." Even this allegation is vague. That apart, it is a highly belated allegation. It appears to be an afterthought. It is not necessary for us to decide in this case whether such an amendment could have been permitted after the limitation for filing the election petition had expired. But the very circumstance that the allegation in question was made several months after the election petition, was filed by itself casts serious doubt on the veracity of that allegation. This circumstance was completely overlooked by the High Court. 16. The witness who spoke in support of the said allegation are the first respondent (P. W. 2), P. W. 9, Arjan Kashinath Masirkar and P. W. 12, Nazir Hussain Akbar Ali. So far as P. W. 2 is concerned, he is undoubtedly an interested witness. In the circumstances, mentioned above, his evidence can gave little pursuance value. So far as P. W. 9 is concerned on his own showing he was highly interested in the 1st respondent and the Congress Party. As elicited during his cross-examination he was a Congress candidate for election as a Sarpanch and as a member of the Panchayat Samiti. The appellants cousin was his rival in that election. Admittedly, during the last election he canvassed for the respondent. Under these circumstances much reliance cannot be placed on the testimony of this witness. Then we come to the evidence of P. W. 12. During his cross-examination this is what he stated:"I have not received a summons. Vithalrao had asked me to produce the register where the hire of cycles is noted and that is how the chits which I have filed came with the register...." His evidence is to the effect that the appellant while presiding over the meeting at Rajura on February 13, 1967 stated that the first respondent had a share in the contract for fixing of border stones which was procured for him by Vithalrao. When he was cross-examined about that meeting this is what he stated:"I dont remember who was the President of the meeting, I will not be able to name at this distance of time the names of persons from the town or the villagers who were listening at the meeting. I will not be able to name a single person from amongst these." Obviously he is a procured witness. No reliance can be placed on his evidence.
### Response:
0
### Explanation:
4. The bulk of the evidence adduced in this case relates to the controversy whether the appellant was responsible for the printing and publication of Exhs. 55 and 56. The High Court has accepted the case of the first respondent that the appellant was responsible for printing and publishing those pamphlets. We have been taken through that evidence and we agree with the High Court on that aspect of the case. It is not necessary to deal with evidence as we are opinion that the statements contained in those pamphlets do not amount to corrupt practice under section 123 (4) of the Act. Section 123 (4) reads:8. It is trite to say that the burden of providing every one of the ingredients of the corrupt practice alleged is on him who alleges it. If he fails to establish any of them to the satisfaction of the Court he must failHaving been elected in the first general elections, Shri Vithalrao Dhote would work for the benefit of the people and develop the backward Rajura Taluka was our expectation. But the people of Rajura Taluka have been utterly disappointed by Shri Vithalrao Dhote. In this taluka the High School which was there in the times of Nizam is the only High School in whole of Rajura Taluka till today. Shri Vithalrao Dhote could not construct a single pucca road. Could not supply electricity to any village anywhere. Could not make arrangements for watering agriculture. In this taluka though there are thousands of acres of fallow land, for distributing it to landless, no effort was made by Shri Vithalrao Dhote. In the last five years no work for the benefit of the people has been done by Vithalrao DhoteIt is clear that the High Court failed to examine the effect of the statements contained in Exhibits 55 and 56 by the tests prescribed in Section 123 (4). Further, there is no proof in this case that the statements contained in Exhibits 55 and 56 are reasonably calculated to prejudice the election of the respondent. The trial Court did not give any finding to that effectThe High Court has held that the appellant made that accusation while addressing election meetings at two places. If that finding is correct then undoubtedly there is a contravention of Sec. 123 (4) but after carefully examining the material on record we have come to the conclusion that that finding in unsustainable15. The election petition was filed on April 11, 1967. That petition merely set out what according to the petitioner are the contents of Exhibits 55 and 56. It is not stated therein that apart from the statements contained in those pamphlets any other false statement of fact relating to the personal character or conduct of the first respondent had been made either by the appellant or his supporters. The allegation that the appellant in his election meeting had stated that the first respondent had a share in the profits earned by Abid Hussain in the matter of fixing the boundary stones is not mentioned there. An application to amend the election petition was made on June 24, 1967. In that application also there is no reference to the allegation in question. The election petition was again amended on 3-7-1967.
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Karanpura Development Co., Ltd Vs. Raja Kamakshya Narain Singh | reference to the fourth, the suggestion of the Legal Department proceeded on a misapprehension of what had really been agreed to by the parties. Thus, all the essential terms of the agreement must be held to have been sanctioned by the Board by its letter dated 9-10-1917, and is of no consequence, as laid down in 40 Ind App 117 (PC) (J) and 1915 PC 27 (AIR V.2) (K) that the document as finally drafted had not been submitted again for its approval. We should accordingly construe the letter dated 9-10-1917 as sufficient sanction under S. 18.35. The learned Judges of the High Court were of the opinion that R. 242 framed under S. 70 of the Act required that the sanction should be recited in the deed, and they referred to the deed dated 26-3-1915 where that had been done.But R. 242 applied only to leases, and is in terms inapplicable to the deed dated 23-11-1917 which is an agreement.And both sides have argued the case on the footing that the deed in question is governed by the last clause of S. 18. We have no hesitation in holding that the Board directed by its letter dated 9-10-1917 the execution of the agreement dated 23-11-1917, and that it was validly executed under S. 18. The result, therefore, is that the deed dated 23-11-1917 is not open to attack on any of the grounds urged by the respondent, and must be upheld.36. One other contention of the respondent remains to be considered, and that arises on the statement of the appellant that it does not contest the finding of the High Court that the deed dated 1-6-1937 is void. It will be recalled that under the deeds dated 26-3-1915 and 23-11-1917 the licensees would be entitled to an extension of the period for 12 years from 26-3-1939 to 26-3-1951 provided that they had taken on lease a minimum area of 20,000 bighas, and that the appellant had, in fact, taken on lease only a total extent of 17,539 bighas under six leases during the years 1922 to 1933. It was also provided in those deed that for the areas taken in excess of 10,000 bighas, the minimum royalty would become payable after 26-3-1939. The appellant applied to the Court of Wards sometime in 1934 for amendment of the deed dated 26-3-1915 and 23-11-1917 so as to provide that the payment of minimum royalty was to commence from 26-3-1951, unless railway facilities were available earlier. This was sanctioned by the Board, and the deed dated 1-6-1937 incorporates this amendment in the deeds dated 26-3-1915 and 23-11-1917. As a condition of the grant of this concession, the Board required the appellant to take a lease of 2,461 bighas to make up the covenanted extent of 20,000 bighas. The appellant accordingly applied for three leases of the total extent of 2,461 bighas, and the Board gave sanction to the same on 15-7-1937, and on 2-8-1937, the lease deed were actually executed. One of them, that relating to Mauza Saunda, contained, in accordance with the terms of the deed dated 1-6-1937, the following covenant: "Provided always that no minimum royalty shall be payable until the expiration of 36 years from the said 26th day of March 1915 or until railway facilities shall be available as aforesaid, whichever even shall first happen". There is some dispute as to whether the other two leases contained similar covenants, but that is immaterial for the present discussion, because if the lease of Mauza Saunda is bad on account of the aforesaid clause as contended by the respondent, then the total area taken on lease will be less than the minimum 20,000 bighas, and the appellant will have no right to the benefit of the third extension, and the suit for specific performance must fail.37. Now, the contention of the respondent is that the leases dated 2-8-1937 are bad on two grounds. He firstly argues that as the deed dated 1-6-1937 has been held to be bad, the clause in the lease providing for the postponement of payment of minimum of royalty based thereon must also be held to be bad - that is conceded by the appellant - and that as a deed cannot be held to be partly bad, the whole of it must be held to be void. The fact that a clause in a deed is not binding on the ground that it is unauthorised cannot ipso facto render the whole deed void unless it forms such an integral part of the transaction as to render it impossible to sever the good from the bad. That is not the position here. The effect of declaring the proviso void will have the rest of the deed whole and intact. The leases without the proviso are perfectly valid, and indeed, they will be more advantageous to the ward.38.Secondly, it is contended that the sanction that was accorded by the Board was to the lease with the covenant which has been held to be void, and that the deed without that covenant has not been sanctioned. This contention again is clearly untenable. Section 18 only requires that the transaction should be entered into with the sanction of the Board. When that has been done, the force of the section is spent. Whether the transaction turns out to be good or bad on the merits can have no effect on the sanction, which had been granted before it was entered into. If the deed is bad on the merits, it will fail on that ground and not on the ground that by reason thereof, the sanction becomes ineffective. And the result is the same whether the deed is bad in part or in toto. The contention therefore that the lease deeds dated 2-8-1937 are inoperative must be rejected.The result is that the deeds dated 26-3-1915 and 23-11-1917 are valid but not the clause postponing the payment of minimum royalty in the lease deed or deeds of 2-8-1937 is inoperative. | 1[ds]We have no hesitation in holding that the Board directed by its letter dated 9-10-1917 the execution of the agreement dated 23-11-1917, and that it was validly executed under S. 18.result, therefore, is that the deed dated 23-11-1917 is not open to attack on any of the grounds urged by the respondent, and must be upheld.Now, the contention of the respondent is that the leases dated 2-8-1937 are bad on two grounds. He firstly argues that as the deed dated 1-6-1937 has been held to be bad, the clause in the lease providing for the postponement of payment of minimum of royalty based thereon must also be held to be bad - that is conceded by the appellant - and that as a deed cannot be held to be partly bad, the whole of it must be held to befact that a clause in a deed is not binding on the ground that it is unauthorised cannot ipso facto render the whole deed void unless it forms such an integral part of the transaction as to render it impossible to sever the good from the bad. That is not the position here. The effect of declaring the proviso void will have the rest of the deed whole and intact. The leases without the proviso are perfectly valid, and indeed, they will be more advantageous to the ward.38.Secondly, it is contended that the sanction that was accorded by the Board was to the lease with the covenant which has been held to be void, and that the deed without that covenant has not been sanctioned. This contention again is clearly untenable. Section 18 only requires that the transaction should be entered into with the sanction of the Board. When that has been done, the force of the section is spent. Whether the transaction turns out to be good or bad on the merits can have no effect on the sanction, which had been granted before it was enteredthe deed is bad on the merits, it will fail on that ground and not on the ground that by reason thereof, the sanction becomes ineffective. And the result is the same whether the deed is bad in part or in toto. The contention therefore that the lease deeds dated 2-8-1937 are inoperative must be rejected.The result is that the deeds dated 26-3-1915 and 23-11-1917 are valid but not the clause postponing the payment of minimum royalty in the lease deed or deeds of 2-8-1937 is inoperative. | 1 | 11,701 | 445 | ### 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:
reference to the fourth, the suggestion of the Legal Department proceeded on a misapprehension of what had really been agreed to by the parties. Thus, all the essential terms of the agreement must be held to have been sanctioned by the Board by its letter dated 9-10-1917, and is of no consequence, as laid down in 40 Ind App 117 (PC) (J) and 1915 PC 27 (AIR V.2) (K) that the document as finally drafted had not been submitted again for its approval. We should accordingly construe the letter dated 9-10-1917 as sufficient sanction under S. 18.35. The learned Judges of the High Court were of the opinion that R. 242 framed under S. 70 of the Act required that the sanction should be recited in the deed, and they referred to the deed dated 26-3-1915 where that had been done.But R. 242 applied only to leases, and is in terms inapplicable to the deed dated 23-11-1917 which is an agreement.And both sides have argued the case on the footing that the deed in question is governed by the last clause of S. 18. We have no hesitation in holding that the Board directed by its letter dated 9-10-1917 the execution of the agreement dated 23-11-1917, and that it was validly executed under S. 18. The result, therefore, is that the deed dated 23-11-1917 is not open to attack on any of the grounds urged by the respondent, and must be upheld.36. One other contention of the respondent remains to be considered, and that arises on the statement of the appellant that it does not contest the finding of the High Court that the deed dated 1-6-1937 is void. It will be recalled that under the deeds dated 26-3-1915 and 23-11-1917 the licensees would be entitled to an extension of the period for 12 years from 26-3-1939 to 26-3-1951 provided that they had taken on lease a minimum area of 20,000 bighas, and that the appellant had, in fact, taken on lease only a total extent of 17,539 bighas under six leases during the years 1922 to 1933. It was also provided in those deed that for the areas taken in excess of 10,000 bighas, the minimum royalty would become payable after 26-3-1939. The appellant applied to the Court of Wards sometime in 1934 for amendment of the deed dated 26-3-1915 and 23-11-1917 so as to provide that the payment of minimum royalty was to commence from 26-3-1951, unless railway facilities were available earlier. This was sanctioned by the Board, and the deed dated 1-6-1937 incorporates this amendment in the deeds dated 26-3-1915 and 23-11-1917. As a condition of the grant of this concession, the Board required the appellant to take a lease of 2,461 bighas to make up the covenanted extent of 20,000 bighas. The appellant accordingly applied for three leases of the total extent of 2,461 bighas, and the Board gave sanction to the same on 15-7-1937, and on 2-8-1937, the lease deed were actually executed. One of them, that relating to Mauza Saunda, contained, in accordance with the terms of the deed dated 1-6-1937, the following covenant: "Provided always that no minimum royalty shall be payable until the expiration of 36 years from the said 26th day of March 1915 or until railway facilities shall be available as aforesaid, whichever even shall first happen". There is some dispute as to whether the other two leases contained similar covenants, but that is immaterial for the present discussion, because if the lease of Mauza Saunda is bad on account of the aforesaid clause as contended by the respondent, then the total area taken on lease will be less than the minimum 20,000 bighas, and the appellant will have no right to the benefit of the third extension, and the suit for specific performance must fail.37. Now, the contention of the respondent is that the leases dated 2-8-1937 are bad on two grounds. He firstly argues that as the deed dated 1-6-1937 has been held to be bad, the clause in the lease providing for the postponement of payment of minimum of royalty based thereon must also be held to be bad - that is conceded by the appellant - and that as a deed cannot be held to be partly bad, the whole of it must be held to be void. The fact that a clause in a deed is not binding on the ground that it is unauthorised cannot ipso facto render the whole deed void unless it forms such an integral part of the transaction as to render it impossible to sever the good from the bad. That is not the position here. The effect of declaring the proviso void will have the rest of the deed whole and intact. The leases without the proviso are perfectly valid, and indeed, they will be more advantageous to the ward.38.Secondly, it is contended that the sanction that was accorded by the Board was to the lease with the covenant which has been held to be void, and that the deed without that covenant has not been sanctioned. This contention again is clearly untenable. Section 18 only requires that the transaction should be entered into with the sanction of the Board. When that has been done, the force of the section is spent. Whether the transaction turns out to be good or bad on the merits can have no effect on the sanction, which had been granted before it was entered into. If the deed is bad on the merits, it will fail on that ground and not on the ground that by reason thereof, the sanction becomes ineffective. And the result is the same whether the deed is bad in part or in toto. The contention therefore that the lease deeds dated 2-8-1937 are inoperative must be rejected.The result is that the deeds dated 26-3-1915 and 23-11-1917 are valid but not the clause postponing the payment of minimum royalty in the lease deed or deeds of 2-8-1937 is inoperative.
### Response:
1
### Explanation:
We have no hesitation in holding that the Board directed by its letter dated 9-10-1917 the execution of the agreement dated 23-11-1917, and that it was validly executed under S. 18.result, therefore, is that the deed dated 23-11-1917 is not open to attack on any of the grounds urged by the respondent, and must be upheld.Now, the contention of the respondent is that the leases dated 2-8-1937 are bad on two grounds. He firstly argues that as the deed dated 1-6-1937 has been held to be bad, the clause in the lease providing for the postponement of payment of minimum of royalty based thereon must also be held to be bad - that is conceded by the appellant - and that as a deed cannot be held to be partly bad, the whole of it must be held to befact that a clause in a deed is not binding on the ground that it is unauthorised cannot ipso facto render the whole deed void unless it forms such an integral part of the transaction as to render it impossible to sever the good from the bad. That is not the position here. The effect of declaring the proviso void will have the rest of the deed whole and intact. The leases without the proviso are perfectly valid, and indeed, they will be more advantageous to the ward.38.Secondly, it is contended that the sanction that was accorded by the Board was to the lease with the covenant which has been held to be void, and that the deed without that covenant has not been sanctioned. This contention again is clearly untenable. Section 18 only requires that the transaction should be entered into with the sanction of the Board. When that has been done, the force of the section is spent. Whether the transaction turns out to be good or bad on the merits can have no effect on the sanction, which had been granted before it was enteredthe deed is bad on the merits, it will fail on that ground and not on the ground that by reason thereof, the sanction becomes ineffective. And the result is the same whether the deed is bad in part or in toto. The contention therefore that the lease deeds dated 2-8-1937 are inoperative must be rejected.The result is that the deeds dated 26-3-1915 and 23-11-1917 are valid but not the clause postponing the payment of minimum royalty in the lease deed or deeds of 2-8-1937 is inoperative.
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Union of India Vs. Sandur Manganese & Iron Ores Ltd. & Others | both Section 11(2) and Section 11(4) should be applicable to both virgin and previously held areas, the same has been well reasoned in the impugned judgment and the mere fact that different views on the same subject are possible is no ground to review the earlier judgment passed by this Bench. 22) It has been time and again held that the power of review jurisdiction can be exercised for the correction of a mistake and not to substitute a view. In Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC 715 , this Court held as under:- “9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule I CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise". 23) This Court, on numerous occasions, had deliberated upon the very same issue, arriving at the conclusion that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC. 24) In the present case, the error contemplated in the impugned judgment is not one which is apparent on the face of the record rather the dispute is wholly founded on the point of interpretation and applicability of Section 11(2) and 11(4) of the MMDR Act. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Hence, in review jurisdiction, the court shall interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment, which we fail to notice in the present case. 25) For the above reasons, the second ground for review petition is liable to be rejected. 26) Further, the contention regarding MoU entered into by the State Government and investments made thereunder is concerned, this Court has noticed this fact and rejected the contention made by the respondents in Sandur (supra). It is relevant to point out that the State of Karnataka is stated to have committed to JSW Steels Limited on 11.10.1994 for grant of mining leases but the same has been invoked by JSW Steels after a lapse of 8 years and more precisely, after 5 years of commencing commercial operations in its steel plant by making an application on 24.10.2002. Once an area is notified for re-grant and applications are invited from the mining public for grant of mining lease, the applications must be disposed of in terms of the provisions of the MMDR Act and the MC Rules and not de hors. In para 80 of Sandur Manganese (supra), this Court has held as follows: “80. It is clear that the State Government is purely a delegate of Parliament and a statutory functionary, for the purposes of Section 11(3) of the Act, hence it cannot act in a manner that is inconsistent with the provisions of Section 11(1) of the MMDR Act in the grant of mining leases. Furthermore, Section 2 of the Act clearly states that the regulation of mines and mineral development comes within the purview of the Union Government and not the State Government. As a matter of fact, the respondents have not been able to point out any other provision in the MMDR Act or the MC Rules permitting grant of mining lease based on past commitments. As rightly pointed out, the State Government has no authority under the MMDR Act to make commitments to any person that it will, in future, grant a mining lease in the event that the person makes investment in any project. Assuming that the State Government had made any such commitment, it could not be possible for it to take an inconsistent position and proceed to notify a particular area. Further, having notified the area, the State Government certainly could not thereafter honour an alleged commitment by ousting other applicants even if they are more deserving on the merit criteria as provided in Section 11(3)." Hence, the petitioner cannot be permitted to re-argue the very same point. 27) Regarding the issue of Mineral Policies, this Court has already held in Sandur (supra) that in view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the MC Rules. 28) In view of the above, the petitioner-Union of India has not invoked any valid ground for exercising the power under review jurisdiction. In addition to the same, after the judgment in Sandur (supra), another coordinate Bench of this Court followed the ratio decidendi in Monnet Ispat and Energy Ltd. vs. Union of India & Ors., 2012 (11) SCC 1. 29) For the aforesaid reasons, we are unable to accept any of the contentions raised by Learned Attorney General, therefore, the review petition is disposed of by deleting the misquoted lines in the Expert Committee Report. 30) In view of the above order and the directions issued by us in para 98 of Sandur (supra), we grant a further period of 4 months from the date of receipt of copy of this order to comply with the same. 31) | 0[ds]In the present case, the error contemplated in the impugned judgment is not one which is apparent on the face of the record rather the dispute is wholly founded on the point of interpretation and applicability of Section 11(2) and 11(4) of the MMDR Act. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Hence, in review jurisdiction, the court shall interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment, which we fail to notice in the presentthe issue of Mineral Policies, this Court has already held in Sandur (supra) that in view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the MCview of the above, the petitioner-Union of India has not invoked any valid ground for exercising the power under review jurisdiction. In addition to the same, after the judgment in Sandur (supra), another coordinate Bench of this Court followed the ratio decidendi in Monnet Ispat and Energy Ltd. vs. Union of India & Ors., 2012 (11) SCCthe aforesaid reasons, we are unable to accept any of the contentions raised by Learned Attorney General, therefore, the review petition is disposed of by deleting the misquoted lines in the Expert Committeeview of the above order and the directions issued by us in para 98 of Sandur (supra), we grant a further period of 4 months from the date of receipt of copy of this order to comply with the same. | 0 | 3,086 | 354 | ### Instruction:
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both Section 11(2) and Section 11(4) should be applicable to both virgin and previously held areas, the same has been well reasoned in the impugned judgment and the mere fact that different views on the same subject are possible is no ground to review the earlier judgment passed by this Bench. 22) It has been time and again held that the power of review jurisdiction can be exercised for the correction of a mistake and not to substitute a view. In Parsion Devi & Ors. vs. Sumitri Devi & Ors., (1997) 8 SCC 715 , this Court held as under:- “9. Under Order 47 Rule 1 CPC a judgment may be open to review inter alia if there is a mistake or an error apparent on the face of the record. An error which is not self-evident and has to be detected by a process of reasoning, can hardly be said to be an error apparent on the face of the record justifying the court to exercise its power of review under Order 47 Rule I CPC. In exercise of the jurisdiction under Order 47 Rule 1 CPC it is not permissible for an erroneous decision to be "reheard and corrected". A review petition, it must be remembered has a limited purpose and cannot be allowed to be "an appeal in disguise". 23) This Court, on numerous occasions, had deliberated upon the very same issue, arriving at the conclusion that review proceedings are not by way of an appeal and have to be strictly confined to the scope and ambit of Order 47 Rule 1 of CPC. 24) In the present case, the error contemplated in the impugned judgment is not one which is apparent on the face of the record rather the dispute is wholly founded on the point of interpretation and applicability of Section 11(2) and 11(4) of the MMDR Act. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Hence, in review jurisdiction, the court shall interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment, which we fail to notice in the present case. 25) For the above reasons, the second ground for review petition is liable to be rejected. 26) Further, the contention regarding MoU entered into by the State Government and investments made thereunder is concerned, this Court has noticed this fact and rejected the contention made by the respondents in Sandur (supra). It is relevant to point out that the State of Karnataka is stated to have committed to JSW Steels Limited on 11.10.1994 for grant of mining leases but the same has been invoked by JSW Steels after a lapse of 8 years and more precisely, after 5 years of commencing commercial operations in its steel plant by making an application on 24.10.2002. Once an area is notified for re-grant and applications are invited from the mining public for grant of mining lease, the applications must be disposed of in terms of the provisions of the MMDR Act and the MC Rules and not de hors. In para 80 of Sandur Manganese (supra), this Court has held as follows: “80. It is clear that the State Government is purely a delegate of Parliament and a statutory functionary, for the purposes of Section 11(3) of the Act, hence it cannot act in a manner that is inconsistent with the provisions of Section 11(1) of the MMDR Act in the grant of mining leases. Furthermore, Section 2 of the Act clearly states that the regulation of mines and mineral development comes within the purview of the Union Government and not the State Government. As a matter of fact, the respondents have not been able to point out any other provision in the MMDR Act or the MC Rules permitting grant of mining lease based on past commitments. As rightly pointed out, the State Government has no authority under the MMDR Act to make commitments to any person that it will, in future, grant a mining lease in the event that the person makes investment in any project. Assuming that the State Government had made any such commitment, it could not be possible for it to take an inconsistent position and proceed to notify a particular area. Further, having notified the area, the State Government certainly could not thereafter honour an alleged commitment by ousting other applicants even if they are more deserving on the merit criteria as provided in Section 11(3)." Hence, the petitioner cannot be permitted to re-argue the very same point. 27) Regarding the issue of Mineral Policies, this Court has already held in Sandur (supra) that in view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the MC Rules. 28) In view of the above, the petitioner-Union of India has not invoked any valid ground for exercising the power under review jurisdiction. In addition to the same, after the judgment in Sandur (supra), another coordinate Bench of this Court followed the ratio decidendi in Monnet Ispat and Energy Ltd. vs. Union of India & Ors., 2012 (11) SCC 1. 29) For the aforesaid reasons, we are unable to accept any of the contentions raised by Learned Attorney General, therefore, the review petition is disposed of by deleting the misquoted lines in the Expert Committee Report. 30) In view of the above order and the directions issued by us in para 98 of Sandur (supra), we grant a further period of 4 months from the date of receipt of copy of this order to comply with the same. 31)
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In the present case, the error contemplated in the impugned judgment is not one which is apparent on the face of the record rather the dispute is wholly founded on the point of interpretation and applicability of Section 11(2) and 11(4) of the MMDR Act. In review jurisdiction, mere disagreement with the view of the judgment cannot be the ground for invoking the same. As long as the point is already dealt with and answered, the parties are not entitled to challenge the impugned judgment in the guise that an alternative view is possible under the review jurisdiction. Hence, in review jurisdiction, the court shall interfere only when there is a glaring omission or patent mistake or when a grave error has crept in the impugned judgment, which we fail to notice in the presentthe issue of Mineral Policies, this Court has already held in Sandur (supra) that in view of the specific parliamentary declaration as discussed and explained by this Court in various decisions, there is no question of the State having any power to frame a policy de hors the MMDR Act and the MCview of the above, the petitioner-Union of India has not invoked any valid ground for exercising the power under review jurisdiction. In addition to the same, after the judgment in Sandur (supra), another coordinate Bench of this Court followed the ratio decidendi in Monnet Ispat and Energy Ltd. vs. Union of India & Ors., 2012 (11) SCCthe aforesaid reasons, we are unable to accept any of the contentions raised by Learned Attorney General, therefore, the review petition is disposed of by deleting the misquoted lines in the Expert Committeeview of the above order and the directions issued by us in para 98 of Sandur (supra), we grant a further period of 4 months from the date of receipt of copy of this order to comply with the same.
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NATIONAL INVESTIGATION AGENCY Vs. ZAHOOR AHMAD SHAH WATALI | it only places limitations on such power. This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are ‘in addition to the limitations under the Code or any other law for the time being in force’. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. It cannot be doubted that a Designated Court is ‘a court other than the High Court or the Court of Session’ within the meaning of Section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) of the Act.’and went on to add: (SCC p. 704, para 345)‘Reverting to Section 20(8), if either of the two conditions mentioned therein is not satisfied, the ban operates and the accused person cannot be released on bail but of course it is subject to Section 167(2) as modified by Section 20(4) of the TADA Act in relation to a case under the provisions of TADA.’ Thus, the ambit and scope of Section 20(8) of TADA is no longer res integra and from the above discussion it follows that both the provisions i.e. Section 20(4) and 20(8) of TADA operate in different situations and are controlled and guided by different considerations.” 33. We fail to understand as to how this decision will be of any avail to the respondent. In our opinion, the Designated Court had rightly rejected the bail application after adverting to the relevant material/evidence indicative of the fact that there are reasonable grounds for believing that the accusation against the respondent is prima facie true.34. With reference to the document D¬132(a), the High Court was impressed by the argument that the same would be inadmissible. To buttress that opinion of the High Court, the respondent would rely on the decision of this Court in V.C. Shukla (supra). Further, it was submitted that in light of Section 34 of the Evidence Act, the said document could not be admitted in evidence, since it was not an entry in the books of account regularly kept in the course of business. In any case, that document by itself would not be sufficient in the absence of any independent evidence. Learned Attorney General, relying on the underlying principle in Khoday Distilleries Ltd. and Ors. Vs. State of Karnataka and Ors. 21 , would contend that there cannot be business in crime and, as such, Section 34 of the Evidence Act will have no application. He further submits that the prosecution may use the facts noted in the said document and prove the same against the respondent by other evidence. This argument need not detain us. For, we find force in the argument of the learned Attorney General that the issue of admissibility and credibility of the material and evidence presented by the Investigating Officer would be a matter for trial. Furthermore, indubitably, the prosecution is not solely relying on the document D¬132(a) recovered from the residence of Ghulam Mohammad Bhatt (W¬29). There are also other incriminatory documents recovered from respondent (Accused No.10) himself during the search, including other independent evidence, which, indeed, will have to be proved during the trial. 21 (1995) 1 SCC 574 ( para 60)35. The appellant has relied on the exposition in Salim Khan (supra), to contend that in cases where the High Court adopted a totally erroneous approach, as in the present case, discarding the crucial material/evidence which is referred to in the report under Section 173 Cr.P.C. and presented before the Designated Court, then the order granting bail by the High Court cannot be countenanced. The argument of the respondent is that the said decision would make no difference as it is concerning an application for cancellation of bail made by the informant. However, we find force in the argument of the appellant that the High Court, in the present case, adopted an inappropriate approach whilst considering the prayer for grant of bail. The High Court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true. Indeed, in the present case, we are not called upon to consider the prayer for cancellation of bail as such but to examine the correctness of the approach of the High Court in granting bail to the accused despite the materials and evidence indicating that accusations made against him are prima facie true.36. In a decision of this Court in Chenna Boyanna Krishna Yadav (supra), to which reference has been made, the Court has re¬stated the twin conditions to be considered by the Court before grant of bail in relation to MCOCA offences. We are of the view that in the present case, the Designated Court rightly opined that there are reasonable grounds for believing that the accusation against the respondent is prima facie true. As we are not inclined to accept the prayer for bail, in our opinion, it is not necessary to dilate on other aspects to obviate prolixity.37. A fortiori, we deem it proper to reverse the order passed by the High Court granting bail to the respondent. Instead, we agree with the conclusion recorded by the Designated Court that in the facts of the present case, the respondent is not entitled to grant of bail in connection with the stated offences, particularly those falling under Chapters IV and VI of the 1967 Act. | 1[ds]17. By virtue of the proviso to sub¬section (5), it is the duty of the Court to be satisfied that there are reasonable grounds for believing that the accusation against the accused is prima facie true or otherwise. Our attention was invited to the decisions of this Court, which has had an occasion to deal with similar special provisions in TADA and MCOCA. The principle underlying those decisions may have some bearing while considering the prayer for bail in relation to offences under the 1967 Act as well. Notably, under the special enactments such as TADA, MCOCA and the Narcotic Drugs and Psychotropic Substances Act, 1985, the Court is required to record its opinion that there are reasonable grounds for believing that the accused isof the alleged offence. There is degree of difference between the satisfaction to be recorded by the Court that there are reasonable grounds for believing that the accused isof such offence and the satisfaction to be recorded for the purposes of the 1967 Act that there are reasonable grounds for believing that the accusation against such person ise. By its very nature, the expressionwould mean that the materials/evidence collated by the Investigating Agency in reference to the accusation against the concerned accused in the first information report, must prevail until contradicted and overcome or disproved by other evidence, and on the face of it, shows the complicity of such accused in the commission of the stated offence. It must be good and sufficient on its face to establish a given fact or the chain of facts constituting the stated offence, unless rebutted or contradicted. In one sense, the degree of satisfaction is lighter when the Court has to opine that the accusation isas compared to the opinion of accusedof such offence as required under the other special enactments. In any case, the degree of satisfaction to be recorded by the Court for opining that there are reasonable grounds for believing that the accusation against the accused is prima facie true, is lighter than the degree of satisfaction to be recorded for considering a discharge application or framing of charges in relation to offences under the 1967 Act. Nevertheless, we may take guidance from the exposition in the case of Ranjitsing Brahmajeetsing Sharma (supra), wherein a three¬Judge Bench of this Court was called upon to consider the scope of power of the Court to grant bail.A priori, the exercise to be undertaken by the Court at this stage ¬ of giving reasons for grant or non-grant of bail ¬ is markedly different from discussing merits or demerits of the evidence. The elaborate examination or dissection of the evidence is not required to be done at this stage. The Court is merely expected to record a finding on the basis of broadprobabilities regarding the involvement of the accused in the commission of the stated offence or otherwise. From the analysis of the impugned judgment, it appears to us that the High Court has ventured into an area of examining the merits and demerits of the evidence. For, it noted that the evidence in the form of statements of witnesses under Section 161 are not admissible. Further, the documents pressed into service by the Investigating Agency were not admissible in evidence. It also noted that it was unlikely that the document had been recovered from the residence of Ghulam Mohammad Bhatt till 16 th August, 2017 (paragraph 61 of the impugned judgment). Similarly, the approach of the High Court in completely discarding the statements of the protected witnesses recorded under Section 164 of Cr.P.C., on the specious ground that the same was kept in a sealed cover and was not even perused by the Designated Court and also because reference to such statements having been recorded was not found in the charge¬ sheet already filed against the respondent is, in our opinion, in complete disregard of the duty of the Court to record its opinion that the accusation made against the concerned accused is prima facie true or otherwise. That opinion must be reached by the Court not only in reference to the accusation in the FIR but also in reference to the contents of the case diary and including the charge-sheet (report under Section 173 of Cr.P.C.) and other material gathered by the Investigating Agency during investigation. Be it noted that the special provision, Section 43D of the 1967 Act, applies right from the stage of registration of FIR for offences under Chapters IV and VI of the 1967 Act until the conclusion of the trial thereof. To wit, soon after the arrest of the accused on the basis of the FIR registered against him, but before filing of the charge-sheet by the Investigating Agency; after filing of the first charge-sheet and before the filing of the supplementary or final charge-sheet consequent to further investigation under Section 173(8) Cr.P.C., until framing of the charges or after framing of the charges by the Court and recording of evidence of key witnesses etc. However, once charges are framed, it would be safe to assume that a very strong suspicion was founded upon the materials before the Court, which prompted the Court to form a presumptive opinion as to the existence of the factual ingredients constituting the offence alleged against the accused, to justify the framing of charge. In that situation, the accused may have to undertake an arduous task to satisfy the court that despite the framing of charge, the materials presented along with the charge-sheet (report under Section 173 of Cr.P.C.), do not make out reasonable grounds for believing that the accusation against him is prima facie true. Similar opinion is required to be formed by the Court whilst considering the prayer for bail, made after filing of the first report made under Section 173 of the Code, as in the present case.19. For that, the totality of the material gathered by the Investigating Agency and presented along with the report and including the case diary, is required to be reckoned and not by analysing individual pieces of evidence or circumstance. In any case, the question of discarding the document at this stage, on the ground of being inadmissible in evidence, is not permissible. For, the issue of admissibility of the document/evidence would be a matter for trial. The Court must look at the contents of the document and take such document into account as itwill have to be answered keeping in mind the totality of materials including the one presented along with the police report. Be it noted that the prosecution is relying on several documents forming part of the first charge-sheet (pending further investigation) filed against the respondent (Accused No.10) allegedly showing his involvement in the commission of the stated offences. Reference has been made to some of the crucial documents mentioned in the chart handed over to the Court by the appellant. The same, inter alia, readDuring the hearing, emphasis was placed by the learned Attorney General on documents D¬132, D-132(a)/23, D¬3/6, D¬3g/20, D¬3h/28, D¬3j to D¬3j/5, D¬9b, D¬9c, D¬154 and D¬ 185/10. Besides these documents, our attention was also invited to the statements of Ghulam Mohammad Bhatt (W¬29) dated 30 th August, 2017, and 23 rd November, 2017, as well as the redacted statements of protected witnesses (recorded under Section 164, which have now been taken on record by the Designated Court in terms of order dated 11 th January, 2019. Notably, the order passed by the Designated Court permitting redaction of those statements has not been assailed by the respondent. In our opinion, the High Court, having noticed that the Designated Court had not looked at the stated statements presented in a sealed cover, coupled with the fact that the application under Section 44 filed by the Investigating Agency was pending before the Designated Court, and before finally answering the prayer for grant of bail, should have directed the Designated Court to first decide the said application and if allowed, consider the redacted statements, to form its opinion as to whether there are reasonable grounds for believing that the accusation made against the respondent is prima facie true or otherwise. For, in terms of Section 43D, it is the bounden duty of the Court to peruse the case diary and/or the report made under Section 173 of the Code and all other relevant material/evidence produced by the Investigating Agency, for recording its opinion. We could have relegated the parties before the High Court but the counsel appearing for the respondent, on instructions, stated that the respondent would prefer to await the decision of the Designated Court and, depending on the outcome of the application under Section 44 of the Act, would contest the proceedings before this Court itself. Accordingly, at the request of the respondent, we kept the present appeal pending. Since the Designated Court has finally disposed of the application preferred by the Investigating Agency vide order dated 11 th January, 2019, the correctness whereof has not been challenged by the respondent, the redacted statements of the concerned protected witnesses have been taken on record.22. Accordingly, we have analysed the matter not only in light of the accusations in the FIR and the charge¬sheet or the police report made under Section 173, but also the documentary evidence and statements of the prospective witnesses recorded under Sections 161 and 164, including the redacted statements of the protected witnesses, for considering the prayer for bail.23. As regards the redacted statements, objection of the respondent was that the certificate given by the competent authority is not in conformity with the certificate required to be given in terms of Section 164(4) of Cr.P.C. This objection has been justly countered by the learned Attorney General with the argument that the objection borders on the issue of admissibility of the said statements. We find force in the submission that the issue regarding admissibility of the statements and efficacy of the certificates given by the competent authority, appended to the redacted statements would be a matter for trial and subject to the evidence in reference to Section 463 of Cr.P.C. and cannot be overlooked at this stage. Viewed thus, the exposition in the case of Ramchandra Keshav Adke (dead) by LRs. and Ors. Vs. Govind Joti Chavare and Ors. (1975) 1 SCC 559 = AIR 1975 SC 915 , in paragraph 25 of the reported judgment will be of no avail to the respondent.24. After having analyzed the documents and the statements forming part of the charge¬sheet as well as the redacted statements now taken on record, we disagree with the conclusion recorded by the High Court. In our opinion, taking into account the totality of the report made under Section 173 of the Code and the accompanying documents and the evidence/material already presented to the Court, including the redacted statements of the protected witnesses recorded under Section 164 of the Code, there are reasonable grounds to believe that the accusations made against the respondent are prima facie true. Be it noted, further investigation is in progress. We may observe that since the prayer for bail is to be rejected, it may not be appropriate for us to dilate on matters which may eventually prejudice the respondent(Accused No.10) in any manner in the course of the trial. Suffice it to observe that the material produced by the Investigating Agency thus far (pending further investigation) shows the linkage of the respondent (Accused No.10) with A¬3, A¬4, A¬5 and A¬6 and, likewise, linkages between the respondent (Accused No.10) and A¬3 to A¬12, as revealed from the CDR analysis.28. Reverting to the documents on which emphasis has been placed, document D-132 is the Seizure Memo of properties seized from the premises of Ghulam Mohammad Bhatt (W¬29), the then Munshi/Accountant of the respondent (Accused No.10). Document D¬132(a) is the green page document, seized during the search of the residence of said Ghulam Mohammad Bhatt, containing information about foreign contributions and expenditures of the respondent (Accused No.10) during 2015/2016. Whether this document is admissible in evidence would be a matter for trial. Be that as it may, besides the said document, the statement of Ghulam Mohammad Bhatt (W-29) has been recorded on 30 th August, 2017 and 1 st November, 2017. Whether the credibility of the said witness should be accepted cannot be put in issue at this stage. The statement does make reference to the diaries recovered from his residence showing transfer of substantial cash amounts to different parties, which he has explained by stating that cash transactions were looked after by the respondent (Accused No.10) himself. He had admitted the recovery of the green colour document from his residence, bearing signature of the respondent (Accused No.10) and mentioning about the cash amounts received and disbursed during the relevant period between 2015 and 2016. The accusation against the respondent (Accused No.10) is that accused A¬3 to A¬10 are part of the All Parties Hurriyat Conference which calls itself a political front, whereas their agenda is to create an atmosphere conducive to the goal of cessation of J & K from the Union of India. The role attributed to the respondent (Accused No.10) is that of being part of the larger conspiracy and to act as a fund raiser and finance conduit. Ample material has been collected to show the linkages between the Hurriyat leaders of the J & K and terrorists/terrorist organizations and their continuous activities to wage war against Government of India.In reference to these accusations, the entry in the diaries and the green-colour document, recovered from the residence of Ghulam Mohammad Bhatt, is significant. Further, the seizure memo described as document D¬3/6, in respect of search and seizure of articles/documents seized from the premises of the respondent (Accused No.10) dated 3 rd June, 2017, would unravel the activities of the respondent, including regarding his financial deals. Another crucial document described as D¬3g/20 is a contact diary seized from the respondent vide Memo D¬3, which contains the Pakistan National name and contactwhose name figures in document D¬132(a)/23. The Codepertains to Pakistan. Another contact diary was seized from the respondent vide Memo D-3, which, at page D¬3h/28 contains the same name and contact, namely,The documents D¬3j to D¬3j/5 also indicate the involvement of the respondent in terrorist activities, including that three cases of TADA have been registered against him in the past and investigated and one case of J & K PSA, 1978. The High Court erroneously proceeded on the premise that the charge-sheet makes no reference to any other criminal case against the respondent. Additionally, the charge-sheet is accompanied with documents D¬9b and D¬9c, which are photographs of ex¬militant Aftab Hilali Shah @ Shahid¬ul¬Islam (A¬3) holding AK¬47, seen with other terrorists. These photographs were seized from the residence of the said ex¬militant on 3 rd June, 2017. The prosecution case is that the respondent (Accused No.10) was in constant touch with the said ex-militant Aftab Hilali Shah @ Shahid¬ul¬Islam (A¬3), as noticed from the inter¬linkage chart depicted above. That fact is backed by the CDR analysis report, also part of the charge¬sheet. The charge-sheet also contains document D¬185/10, which is a contact list of accused Nayeem Khan (A¬5) retrieved through forensic analysis, having mobile numbers of persons associated with Hurriyat party; and of one Mudasir Cheema Pak who is none other than the First Secretary of Pakistan High Commission. His name also figures in document D¬132(a)/23. The Designated Court, besides adverting to the aforementioned documents, also adverted to other documents and the statements of the prospective witnesses (Ws-1, 28, 29, 38, 39, 43, 44, 48 and 52). The High Court has not appreciated the said material which found favour with the Designated Court to record its opinion that there are reasonable grounds for believing that the accusation against the respondent is prima facie true. The view so expressed by the Designated Court commends to us. Suffice it to observe that the High Court adopted a tenuous approach ¬ by first discarding the document D¬132(a) and then discarding the statement of witnesses recorded under Section 161 and also the statements recorded under Section 164, presented by the Investigating Agency in a sealed cover. As aforesaid, the High Court ought to have taken into account the totality of the materials/evidences which depicted the involvement of the respondent in the commission of the stated offences and being a member of a larger conspiracy, besides the offence under Section 17 for raising funds for terrorist activities.30. In the case of Niranjan Singh Karam Singh Punjabi (supra), the Court essentially considered the scope and ambit of the enquiry by the Trial Court at the stage ofIn that context, the Court made observations in paragraphs 6 and 8 of the said judgment which must be understood accordingly. In the present case, however, we are called upon to consider the prayer for bail in the context of the purport of the proviso to Section 43D(5) of the 1967 Act which mandates that the accused person involved in the commission of offence referable to Chapters IV and VI of the 1967 Act shall not be released on bail or on bond. However, the Court may release such accused on bail only if it is of the opinion, on perusal of the case diary and/or the report made under Section 173 of Cr.P.C. that there arefor believing that the accusation against such person is prima facie true. Conversely, if in the opinion of the Court, there are reasonable grounds for believing that the accusation against such person is prima facie true, the question of granting bail would not arise as the bar under the first part of the proviso of no bail in such cases would operate.31. The fact that there is a high burden on the accused in terms of the special provisions contained in Section 43D(5) to demonstrate that the prosecution has not been able to show that there exists reasonable grounds to show that the accusation against him is prima facie true, does not alter the legal position expounded in K. Veeraswami (supra), to the effect that the charge-sheet need not contain detailed analysis of the evidence. It is for the Court considering the application for bail to assess the material/evidence presented by the Investigating Agency along with the report under Section 173 of Cr.P.C. in its entirety, to form its opinion as to whether there are reasonable grounds for believing that the accusation against the named accused is prima facie true or otherwise.We fail to understand as to how this decision will be of any avail to the respondent. In our opinion, the Designated Court had rightly rejected the bail application after adverting to the relevant material/evidence indicative of the fact that there are reasonable grounds for believing that the accusation against the respondent is prima facie true.34. With reference to the document D¬132(a), the High Court was impressed by the argument that the same would be inadmissible. To buttress that opinion of the High Court, the respondent would rely on the decision of this Court in V.C. Shukla (supra). Further, it was submitted that in light of Section 34 of the Evidence Act, the said document could not be admitted in evidence, since it was not an entry in the books of account regularly kept in the course of business. In any case, that document by itself would not be sufficient in the absence of any independent evidence. Learned Attorney General, relying on the underlying principle in Khoday Distilleries Ltd. and Ors. Vs. State of Karnataka and Ors. 21 , would contend that there cannot be business in crime and, as such, Section 34 of the Evidence Act will have no application. He further submits that the prosecution may use the facts noted in the said document and prove the same against the respondent by other evidence. This argument need not detain us. For, we find force in the argument of the learned Attorney General that the issue of admissibility and credibility of the material and evidence presented by the Investigating Officer would be a matter for trial. Furthermore, indubitably, the prosecution is not solely relying on the document D¬132(a) recovered from the residence of Ghulam Mohammad Bhatt (W¬29). There are also other incriminatory documents recovered from respondent (Accused No.10) himself during the search, including other independent evidence, which, indeed, will have to be proved during the trial. 21 (1995) 1 SCC 574 ( para 60)35. The appellant has relied on the exposition in Salim Khan (supra), to contend that in cases where the High Court adopted a totally erroneous approach, as in the present case, discarding the crucial material/evidence which is referred to in the report under Section 173 Cr.P.C. and presented before the Designated Court, then the order granting bail by the High Court cannot be countenanced. The argument of the respondent is that the said decision would make no difference as it is concerning an application for cancellation of bail made by the informant. However, we find force in the argument of the appellant that the High Court, in the present case, adopted an inappropriate approach whilst considering the prayer for grant of bail. The High Court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true. Indeed, in the present case, we are not called upon to consider the prayer for cancellation of bail as such but to examine the correctness of the approach of the High Court in granting bail to the accused despite the materials and evidence indicating that accusations made against him are prima facie true.36. In a decision of this Court in Chenna Boyanna Krishna Yadav (supra), to which reference has been made, the Court has re¬stated the twin conditions to be considered by the Court before grant of bail in relation to MCOCA offences. We are of the view that in the present case, the Designated Court rightly opined that there are reasonable grounds for believing that the accusation against the respondent is prima facie true. As we are not inclined to accept the prayer for bail, in our opinion, it is not necessary to dilate on other aspects to obviate prolixity.37. A fortiori, we deem it proper to reverse the order passed by the High Court granting bail to the respondent. Instead, we agree with the conclusion recorded by the Designated Court that in the facts of the present case, the respondent is not entitled to grant of bail in connection with the stated offences, particularly those falling under Chapters IV and VI of the 1967 Act. | 1 | 20,929 | 4,266 | ### Instruction:
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it only places limitations on such power. This is made explicit by Section 20(9) which enacts that the limitations on granting of bail specified in Section 20(8) are ‘in addition to the limitations under the Code or any other law for the time being in force’. But it does not necessarily follow that the power of a Designated Court to grant bail is relatable to Section 439 of the Code. It cannot be doubted that a Designated Court is ‘a court other than the High Court or the Court of Session’ within the meaning of Section 437 of the Code. The exercise of the power to grant bail by a Designated Court is not only subject to the limitations contained therein, but is also subject to the limitations placed by Section 20(8) of the Act.’and went on to add: (SCC p. 704, para 345)‘Reverting to Section 20(8), if either of the two conditions mentioned therein is not satisfied, the ban operates and the accused person cannot be released on bail but of course it is subject to Section 167(2) as modified by Section 20(4) of the TADA Act in relation to a case under the provisions of TADA.’ Thus, the ambit and scope of Section 20(8) of TADA is no longer res integra and from the above discussion it follows that both the provisions i.e. Section 20(4) and 20(8) of TADA operate in different situations and are controlled and guided by different considerations.” 33. We fail to understand as to how this decision will be of any avail to the respondent. In our opinion, the Designated Court had rightly rejected the bail application after adverting to the relevant material/evidence indicative of the fact that there are reasonable grounds for believing that the accusation against the respondent is prima facie true.34. With reference to the document D¬132(a), the High Court was impressed by the argument that the same would be inadmissible. To buttress that opinion of the High Court, the respondent would rely on the decision of this Court in V.C. Shukla (supra). Further, it was submitted that in light of Section 34 of the Evidence Act, the said document could not be admitted in evidence, since it was not an entry in the books of account regularly kept in the course of business. In any case, that document by itself would not be sufficient in the absence of any independent evidence. Learned Attorney General, relying on the underlying principle in Khoday Distilleries Ltd. and Ors. Vs. State of Karnataka and Ors. 21 , would contend that there cannot be business in crime and, as such, Section 34 of the Evidence Act will have no application. He further submits that the prosecution may use the facts noted in the said document and prove the same against the respondent by other evidence. This argument need not detain us. For, we find force in the argument of the learned Attorney General that the issue of admissibility and credibility of the material and evidence presented by the Investigating Officer would be a matter for trial. Furthermore, indubitably, the prosecution is not solely relying on the document D¬132(a) recovered from the residence of Ghulam Mohammad Bhatt (W¬29). There are also other incriminatory documents recovered from respondent (Accused No.10) himself during the search, including other independent evidence, which, indeed, will have to be proved during the trial. 21 (1995) 1 SCC 574 ( para 60)35. The appellant has relied on the exposition in Salim Khan (supra), to contend that in cases where the High Court adopted a totally erroneous approach, as in the present case, discarding the crucial material/evidence which is referred to in the report under Section 173 Cr.P.C. and presented before the Designated Court, then the order granting bail by the High Court cannot be countenanced. The argument of the respondent is that the said decision would make no difference as it is concerning an application for cancellation of bail made by the informant. However, we find force in the argument of the appellant that the High Court, in the present case, adopted an inappropriate approach whilst considering the prayer for grant of bail. The High Court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true. Indeed, in the present case, we are not called upon to consider the prayer for cancellation of bail as such but to examine the correctness of the approach of the High Court in granting bail to the accused despite the materials and evidence indicating that accusations made against him are prima facie true.36. In a decision of this Court in Chenna Boyanna Krishna Yadav (supra), to which reference has been made, the Court has re¬stated the twin conditions to be considered by the Court before grant of bail in relation to MCOCA offences. We are of the view that in the present case, the Designated Court rightly opined that there are reasonable grounds for believing that the accusation against the respondent is prima facie true. As we are not inclined to accept the prayer for bail, in our opinion, it is not necessary to dilate on other aspects to obviate prolixity.37. A fortiori, we deem it proper to reverse the order passed by the High Court granting bail to the respondent. Instead, we agree with the conclusion recorded by the Designated Court that in the facts of the present case, the respondent is not entitled to grant of bail in connection with the stated offences, particularly those falling under Chapters IV and VI of the 1967 Act.
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offence referable to Chapters IV and VI of the 1967 Act shall not be released on bail or on bond. However, the Court may release such accused on bail only if it is of the opinion, on perusal of the case diary and/or the report made under Section 173 of Cr.P.C. that there arefor believing that the accusation against such person is prima facie true. Conversely, if in the opinion of the Court, there are reasonable grounds for believing that the accusation against such person is prima facie true, the question of granting bail would not arise as the bar under the first part of the proviso of no bail in such cases would operate.31. The fact that there is a high burden on the accused in terms of the special provisions contained in Section 43D(5) to demonstrate that the prosecution has not been able to show that there exists reasonable grounds to show that the accusation against him is prima facie true, does not alter the legal position expounded in K. Veeraswami (supra), to the effect that the charge-sheet need not contain detailed analysis of the evidence. It is for the Court considering the application for bail to assess the material/evidence presented by the Investigating Agency along with the report under Section 173 of Cr.P.C. in its entirety, to form its opinion as to whether there are reasonable grounds for believing that the accusation against the named accused is prima facie true or otherwise.We fail to understand as to how this decision will be of any avail to the respondent. In our opinion, the Designated Court had rightly rejected the bail application after adverting to the relevant material/evidence indicative of the fact that there are reasonable grounds for believing that the accusation against the respondent is prima facie true.34. With reference to the document D¬132(a), the High Court was impressed by the argument that the same would be inadmissible. To buttress that opinion of the High Court, the respondent would rely on the decision of this Court in V.C. Shukla (supra). Further, it was submitted that in light of Section 34 of the Evidence Act, the said document could not be admitted in evidence, since it was not an entry in the books of account regularly kept in the course of business. In any case, that document by itself would not be sufficient in the absence of any independent evidence. Learned Attorney General, relying on the underlying principle in Khoday Distilleries Ltd. and Ors. Vs. State of Karnataka and Ors. 21 , would contend that there cannot be business in crime and, as such, Section 34 of the Evidence Act will have no application. He further submits that the prosecution may use the facts noted in the said document and prove the same against the respondent by other evidence. This argument need not detain us. For, we find force in the argument of the learned Attorney General that the issue of admissibility and credibility of the material and evidence presented by the Investigating Officer would be a matter for trial. Furthermore, indubitably, the prosecution is not solely relying on the document D¬132(a) recovered from the residence of Ghulam Mohammad Bhatt (W¬29). There are also other incriminatory documents recovered from respondent (Accused No.10) himself during the search, including other independent evidence, which, indeed, will have to be proved during the trial. 21 (1995) 1 SCC 574 ( para 60)35. The appellant has relied on the exposition in Salim Khan (supra), to contend that in cases where the High Court adopted a totally erroneous approach, as in the present case, discarding the crucial material/evidence which is referred to in the report under Section 173 Cr.P.C. and presented before the Designated Court, then the order granting bail by the High Court cannot be countenanced. The argument of the respondent is that the said decision would make no difference as it is concerning an application for cancellation of bail made by the informant. However, we find force in the argument of the appellant that the High Court, in the present case, adopted an inappropriate approach whilst considering the prayer for grant of bail. The High Court ought to have taken into account the totality of the material and evidence on record as it is and ought not to have discarded it as being inadmissible. The High Court clearly overlooked the settled legal position that, at the stage of considering the prayer for bail, it is not necessary to weigh the material, but only form opinion on the basis of the material before it on broad probabilities. The Court is expected to apply its mind to ascertain whether the accusations against the accused are prima face true. Indeed, in the present case, we are not called upon to consider the prayer for cancellation of bail as such but to examine the correctness of the approach of the High Court in granting bail to the accused despite the materials and evidence indicating that accusations made against him are prima facie true.36. In a decision of this Court in Chenna Boyanna Krishna Yadav (supra), to which reference has been made, the Court has re¬stated the twin conditions to be considered by the Court before grant of bail in relation to MCOCA offences. We are of the view that in the present case, the Designated Court rightly opined that there are reasonable grounds for believing that the accusation against the respondent is prima facie true. As we are not inclined to accept the prayer for bail, in our opinion, it is not necessary to dilate on other aspects to obviate prolixity.37. A fortiori, we deem it proper to reverse the order passed by the High Court granting bail to the respondent. Instead, we agree with the conclusion recorded by the Designated Court that in the facts of the present case, the respondent is not entitled to grant of bail in connection with the stated offences, particularly those falling under Chapters IV and VI of the 1967 Act.
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Madhusudan Gordhandas & Co Vs. Madhu Woollen Industries Pvt. Ltd | the claim to support winding up. It is surprising that a claim of the year 1965 was never pursued until it was included as an item of debt in the petition for winding up the company. With regard to the claim for rent, the company pursuant to an agreement between the company and Ravi Industries Private Ltd. credited Rowe Industries with the sum of Rupees 1,52,000 with the result that a sum of Rupees 1,45, 500 would be payable by the company to Ravi Industries Ltd. in respect of rent. The company alleges that Ravi Industries Pvt. Ltd. supported the company in the High Court and that they have taken a completely different position in this Court. In this Court the company has also relied on a piece of writing dated 24 September, 1971 wherein Ravi Industries Private Ltd. acknowledged payment of Rupees 1,52,000 to Rowe Industries Pvt. Ltd. and further agreed to write off the amount of Rupees 1,45,500. Ravi Industries Pvt. Ltd. is disputing the same. This appears to be a matter of substantial dispute. The Court cannot go into these questions to settle debts with doubts. 28. Counsel for the appellants extracted observations from the judgment of the High Court that it was never in dispute that the company was insolvent and it was therefore contended that the company should be wound up. Broadly stated, the balance-sheet shows the share capital of the company to be Rupees 5,51,500, the liabilities to be Rupees 9,77,829.77 and the assets to be Rs. 8,87,177.93. The assets were less than the liability by Rupees 90,000. Accumulated losses of the company for five years appear to be Rupees 6,21,177.53. The plant and machinery which are shown in the balance-sheet at Rs. 6.07,544.58 are agreed to be sold at Rs. 4,50.000. There would then be a shortfall in the value of the fixed insets by about Rupees 1,50,000 and if that amount is added to the sum of Rupees 90,000 representing the difference between the assets and liabilities the shortfall in the assets of the company would be about Rupees 2,50.000. 29. The appellants contended that the shortfall in the assets of the company by about Rupees 2,50,000 after the sale of the machinery would indicate first that the substratum of the company was gone and secondly that the company was insolvent. An allegation that the substratum of the company is gone is to be alleged and proved as a fact. The sale of the machinery was alleged in the petition for winding up to indicate that the substratum of the company had disappeared. It was also said that there was no possibility of the company doing business at a profit. In determining whether or not the substratum of the company has gone, the objects of the company and the case of the company on that question will have to be looked into. In the present case the company alleged that with the proceeds of sale the company intended to enter into some other profitable business. The mere fact that the company has suffered trading losses will not destroy its substratum unless there is no reasonable prospect of it ever making a profit in the future, and the Court is reluctant to hold that it has no such prospect (See Re. Suburban Hotel Co., (1867) 2 Ch App 737 and Davis and Co v. Brunswick (Australia) Ltd. (1936) 1 All ER 299) The company alleged trial out of the proceeds of sale of machinery the company would have sufficient money for carrying on export business even if the company were to take into consideration the amount of Rupees 1,45,000 alleged to be due on account of rent. Export business, buying and selling yarn and commission agency are some of the business which the company can carry on within its objects. One of the Directors of the Company is Kishore Nandlal Shah who carries on export business under the name and style of M/s. Nandkishore and Co in partnership with others Nandkishore and Company are creditors of the Company to the extent of Rupees 4,92,000. The company will not have to meet that claim now. On the contrary, the Nandkishore group will bring in money to the company. This Nandkishore group is alleged by the company to help the company in the export business. The Company has not abandoned objects of business. There is no such allegation or proof. It cannot in the facts and circumstances of the present case be held that the substratum of the company is gone Nor can it be held in the facts and circumstances of the present case that the company is unable to meet the outstandings of any of its admitted creditors. The company has deposited in Court the disputed claims of the appellants. The company has not ceased carrying on its business. Therefore the company will meet the dues as and when they fall due. The company has reasonable prospect of business and resources. 30. Counsel on behalf of the company contended that the appellants presented the petition out of improper motive. Improper motive can be spelt out where the petition is presented to coerce the company in satisfying some groundless claims made against it by the petitioner. The facts and circumstances of the present case indicate that motive. The appellants were Directors. They sold their shares. They went out of the management of the company in the month of August, 1969, They were parties to the proposed sale. Just when the sale of the machinery was going to be effected the appellants. presented a petition for winding up. In the recent English decision in Mann v. Goldstein, (1968) 1 WLR 1091 it was held that even though it appeared from the evidence that the company was insolvent, as the debts were substantially disputed the Court restrained the prosecution of the petition as an abuse of the process of the Court. It is apparent that the appellant, did not present the petition for any legitimate purpose. | 0[ds]23. In the present case the claims of the appellants axe disputed in fact and in law. The Company has given prima facie evidence that the appellants are not entitled to any claim for erection work, because there was no transaction between the company and the appellants or those persons in whose names the appellants claimed the amounts. The company has raised the defence of lack of privity. The company has raised the defence of limitation. As to the appellants, claim for compensation for use of shed the company denies any privity between the company and the appellants. The company has proved the resolution of the company that the company will pay rent to Ravi Industries for the use of the shed. As to the three claims of the appellants for invoices one is proved by the company to be utterly unmeritorious. The Company produced a receipt granted by the appellants for the invoice amount. The falsehood of the appellants claim has been exposed. The Company however stated that the indebtedness is for the sum of Rs. 14,850 and the company alleges the agreement between the company and the appellants that payment will be made out of the proceeds of sale. On these facts and on the principles of law to which reference has been made the High Court was correct in refusing the order for winding up24. Since the inception of the company Jayantilal Katakia a partner of the appellants was the Chairman of the Company until 22 August, 1969. His two brothers were also Directors of the Company since its inception till 22 August, 1969. The Bombay group had also Directors of the Company25. The Company proved the unanimous resolution of the Board at a meeting held on 21 June, 1969 for sale of machinery of the company. The Katakia Brothers were present at the meeting. The Katakia Brothers thereafter sold their three shares to the Valia group. The cumulative evidence in support of the case of the company is not only that the Katakia Brothers consented to and approved of the sale of machinery but also parted with their shares of the Company. The three shares were sold by the Katakia Brothers shortly after each of them had written a letter on 27 July 1969 expressly stating that they had no objection to the sale of the machinery and the letter was issued in order to enable the company to hold an Extra-ordinary General meeting on the subject. The Company relied on the resolution of the Board meeting on 24 October, 1969 where it was recorded that the Valia group would sell their 367 shares and 3 other shares which they had purchased from the appellants to the Nandkishore group and the appellants would accept Rs 14,850 in settlement of the sum of Rs. 72, 000 due from the company and the company would make that payment out of proceeds of sale of the machinery. The Board at a meeting held on 17 September, 1969 resolved that the proposal of R. K. Khanna to purchase the machinery be accepted. On 20 December, 1969 an agreement was signed between R. K. Khanna and the company for the sale of the machinery. At the Annual General Meeting of the company on 8 January, 1970 the Resolution for, sale of the machinery was unanimously passed by the company26. It is in this background that the appellants impeached the proposed sale of the machinery as unauthorised and improvident. The appellants themselves were parties to the proposed sale. The appellants themselves wanted to buy the machinery at a higher figure. These matters are within the province of the management of the company. Where theshareholders27. It will appear from the judgment of the High Court that the creditors for the sum of Rs. 7,50,000 supported the company and resisted the appellants application for winding up. There was some controversy as to whether all the creditors appeared or not. At the hearing of this appeal the company gave, a list of the creditors and notices were issued to the creditors. Apart from the appellants, two other creditors who supported the appellants were Ravi Industries Ltd. whose name appears as one of the creditors as on 2 August, 1971 in the list of creditors furnished by the company and K. S. Patel and Co. with a claim for Rupees 44,477,56 though their name does not appear in the list. Among the creditors who supported the company the largest amount was represented by Nandkishore and Company with a claim for Rupees 4. 95,999. The two creditors who supported the claim of the appellants in regard to the prayer for winding up were Ravi Industries Ltd. with a claim for Rupees 2,97,500 on account of rent and K. S. Patel and Co. of Bombay with a claim for Rupees 44.477.56. It may be stated here that this claim of Rs. 44,477.56 was made on account of erection work of machinery and this identical claim was included in the list of expenses claimed by the appellants on account of erection work. The company disputed the claim. The High Court correctly found that the appellants could not sustain the claim to support winding up. It is surprising that a claim of the year 1965 was never pursued until it was included as an item of debt in the petition for winding up the company. With regard to the claim for rent, the company pursuant to an agreement between the company and Ravi Industries Private Ltd. credited Rowe Industries with the sum of Rupees 1,52,000 with the result that a sum of Rupees 1,45, 500 would be payable by the company to Ravi Industries Ltd. in respect of rent. The company alleges that Ravi Industries Pvt. Ltd. supported the company in the High Court and that they have taken a completely different position in this Court. In this Court the company has also relied on a piece of writing dated 24 September, 1971 wherein Ravi Industries Private Ltd. acknowledged payment of Rupees 1,52,000 to Rowe Industries Pvt. Ltd. and further agreed to write off the amount of Rupees 1,45,500. Ravi Industries Pvt. Ltd. is disputing the same. This appears to be a matter of substantial dispute. The Court cannot go into these questions to settle debts with doubts28. Counsel for the appellants extracted observations from the judgment of the High Court that it was never in dispute that the company was insolvent and it was therefore contended that the company should be wound up. Broadly stated, the balance-sheet shows the share capital of the company to be Rupees 5,51,500, the liabilities to be Rupees 9,77,829.77 and the assets to be Rs. 8,87,177.93. The assets were less than the liability by Rupees 90,000. Accumulated losses of the company for five years appear to be Rupees 6,21,177.53. The plant and machinery which are shown in the balance-sheet at Rs. 6.07,544.58 are agreed to be sold at Rs. 4,50.000. There would then be a shortfall in the value of the fixed insets by about Rupees 1,50,000 and if that amount is added to the sum of Rupees 90,000 representing the difference between the assets and liabilities the shortfall in the assets of the company would be about Rupees 2,50.000n the present case the company alleged that with the proceeds of sale the company intended to enter into some other profitable business. The mere fact that the company has suffered trading losses will not destroy its substratum unless there is no reasonable prospect of it ever making a profit in the future, and the Court is reluctant to hold that it has no such prospect (See Re. Suburban Hotel Co., (1867) 2 Ch App 737 and Davis and Co v. Brunswick (Australia) Ltd. (1936) 1 All ER 299) The company alleged trial out of the proceeds of sale of machinery the company would have sufficient money for carrying on export business even if the company were to take into consideration the amount of Rupees 1,45,000 alleged to be due on account of rent. Export business, buying and selling yarn and commission agency are some of the business which the company can carry on within its objects. One of the Directors of the Company is Kishore Nandlal Shah who carries on export business under the name and style of M/s. Nandkishore and Co in partnership with others Nandkishore and Company are creditors of the Company to the extent of Rupees 4,92,000. The company will not have to meet that claim now. On the contrary, the Nandkishore group will bring in money to the company. This Nandkishore group is alleged by the company to help the company in the export business. The Company has not abandoned objects of business. There is no such allegation or proof. It cannot in the facts and circumstances of the present case be held that the substratum of the company is gone Nor can it be held in the facts and circumstances of the present case that the company is unable to meet the outstandings of any of its admitted creditors. The company has deposited in Court the disputed claims of the appellants. The company has not ceased carrying on its business. Therefore the company will meet the dues as and when they fall due. The company has reasonable prospect of business and resourcesThe facts and circumstances of the present case indicate that motive. The appellants were Directors. They sold their shares. They went out of the management of the company in the month of August, 1969, They were parties to the proposed sale. Just when the sale of the machinery was going to be effected the appellants. presented a petition for winding up. In the recent Englishdecision in Mann v. Goldstein, (1968) 1 WLR1091 it was held that even though it appeared from the evidence that the company was insolvent, as the debts were substantially disputed the Court restrained the prosecution of the petition as an abuse of the process of the Court. It is apparent that the appellant, did not present the petition for any legitimate purpose17. The High Court correctly gave four principal reasons to reject the claims of the appellants to wind up the company as creditors. First, that the books of account of the company did not show the alleged claims of the appellants save and except the sum of Rs. 72,556.01. Second, many of the alleged claims are barred by limitation. There is no allegation by the appellants to support acknowledgement of any claim to oust the plea of limitation. Thirdly, the Katakia Brothers who were the Directors resigned in the month of August, 1969 and their three shares were transferred in the month of December, 1969 and up to the month of December, 1969 there was not a single letter of demand to the company in respect of any claim. Fourthly, one of Katakia Brothers was the Chairman of the Board of Directors and therefore the Katakias were in the knowledge as to the affairs of the company and the books of accounts and they signed the balance sheets which did not reflect any claim of the appellants except the two invoices for the amounts of Rs. 14,650 and Rs. 36,000. The High Court characterised the claim of the appellants as tainted by the vice of dishonesty18. The alleged debts of the appellants are disputed, denied, doubted and at least in one instance proved to be dishonest by the production of a receipt granted by the appellants. The books of the company do not show any of the claims excepting in respect of two invoices for Rs. 14,650 and Rupees 36,000. It was said by the appellants that the books would not bind the appellants. The appellants did not give any statutory notice to raise any presumption of inability to pay debt. The appellants would therefore be required to prove their claim20. Two rules are well settled. First if the debt is bona fide disputed and the defence is a substantial one, the Court will not wind up the company. The court has dismissed. a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon and the sum demanded by the creditor was unreasonable (See London and Paris Banking Corporation, (1874) 19 Eq. 444). Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been done properly was not allowed. (See Re. Brighton Club and Norfolk Hotel Co. Ltd., (1865) 35 Beav. 204)21. Where the debt is undisputed the Court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt (See Re. A Company 94 SJ 369). Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the Court will make a winding up order without requiring the creditor to quantify the debt precisely (See Re. Tweeds Garages Ltd., 1962 Ch. 406).The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends22. Another rule which the Court follows is that if there is opposition to the making of the winding up order by the creditors the Court will consider their wishes and may decline to make the winding up order. Under Section 557 ofthe Companies Act, 1956 in all matters relating to the winding up of the company the Court may ascertain the wishes of the creditors. The wishes of theshareholdersare also considered though perhaps the Court may attach greater weight to the views of the creditors. The law on this point is stated in Palmers Company Law, 21st Edition page 742 as follows: "This right to a winding up order is, however, qualified by another rule, viz., that the Court will regard the wishes of the majority in value of the creditors, and if, for some good reason, they object to a winding up order, the Court in its discretion may refuse the order". The wishes of the creditors will however be tested by the Court on the grounds as to whether the case of the persons opposing the winding up is reasonable; secondly whether there are matters which should be inquired into and investigated if a winding up order is made. It is also well settled that a winding up order will not be made on a creditors petition if it would not benefit him or the companys creditors generally. The grounds furnished by the creditors opposing the winding up will have an important bearing on the reasonable of the case, (See Re. P. and J. Wacrae Ltd., (1961) 1 All ER 302). | 0 | 4,902 | 2,730 | ### Instruction:
Predict whether the case will result in an affirmative (1) or negative (0) decision for the appeal, and then provide a thorough explanation using key sentences to support your prediction.
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the claim to support winding up. It is surprising that a claim of the year 1965 was never pursued until it was included as an item of debt in the petition for winding up the company. With regard to the claim for rent, the company pursuant to an agreement between the company and Ravi Industries Private Ltd. credited Rowe Industries with the sum of Rupees 1,52,000 with the result that a sum of Rupees 1,45, 500 would be payable by the company to Ravi Industries Ltd. in respect of rent. The company alleges that Ravi Industries Pvt. Ltd. supported the company in the High Court and that they have taken a completely different position in this Court. In this Court the company has also relied on a piece of writing dated 24 September, 1971 wherein Ravi Industries Private Ltd. acknowledged payment of Rupees 1,52,000 to Rowe Industries Pvt. Ltd. and further agreed to write off the amount of Rupees 1,45,500. Ravi Industries Pvt. Ltd. is disputing the same. This appears to be a matter of substantial dispute. The Court cannot go into these questions to settle debts with doubts. 28. Counsel for the appellants extracted observations from the judgment of the High Court that it was never in dispute that the company was insolvent and it was therefore contended that the company should be wound up. Broadly stated, the balance-sheet shows the share capital of the company to be Rupees 5,51,500, the liabilities to be Rupees 9,77,829.77 and the assets to be Rs. 8,87,177.93. The assets were less than the liability by Rupees 90,000. Accumulated losses of the company for five years appear to be Rupees 6,21,177.53. The plant and machinery which are shown in the balance-sheet at Rs. 6.07,544.58 are agreed to be sold at Rs. 4,50.000. There would then be a shortfall in the value of the fixed insets by about Rupees 1,50,000 and if that amount is added to the sum of Rupees 90,000 representing the difference between the assets and liabilities the shortfall in the assets of the company would be about Rupees 2,50.000. 29. The appellants contended that the shortfall in the assets of the company by about Rupees 2,50,000 after the sale of the machinery would indicate first that the substratum of the company was gone and secondly that the company was insolvent. An allegation that the substratum of the company is gone is to be alleged and proved as a fact. The sale of the machinery was alleged in the petition for winding up to indicate that the substratum of the company had disappeared. It was also said that there was no possibility of the company doing business at a profit. In determining whether or not the substratum of the company has gone, the objects of the company and the case of the company on that question will have to be looked into. In the present case the company alleged that with the proceeds of sale the company intended to enter into some other profitable business. The mere fact that the company has suffered trading losses will not destroy its substratum unless there is no reasonable prospect of it ever making a profit in the future, and the Court is reluctant to hold that it has no such prospect (See Re. Suburban Hotel Co., (1867) 2 Ch App 737 and Davis and Co v. Brunswick (Australia) Ltd. (1936) 1 All ER 299) The company alleged trial out of the proceeds of sale of machinery the company would have sufficient money for carrying on export business even if the company were to take into consideration the amount of Rupees 1,45,000 alleged to be due on account of rent. Export business, buying and selling yarn and commission agency are some of the business which the company can carry on within its objects. One of the Directors of the Company is Kishore Nandlal Shah who carries on export business under the name and style of M/s. Nandkishore and Co in partnership with others Nandkishore and Company are creditors of the Company to the extent of Rupees 4,92,000. The company will not have to meet that claim now. On the contrary, the Nandkishore group will bring in money to the company. This Nandkishore group is alleged by the company to help the company in the export business. The Company has not abandoned objects of business. There is no such allegation or proof. It cannot in the facts and circumstances of the present case be held that the substratum of the company is gone Nor can it be held in the facts and circumstances of the present case that the company is unable to meet the outstandings of any of its admitted creditors. The company has deposited in Court the disputed claims of the appellants. The company has not ceased carrying on its business. Therefore the company will meet the dues as and when they fall due. The company has reasonable prospect of business and resources. 30. Counsel on behalf of the company contended that the appellants presented the petition out of improper motive. Improper motive can be spelt out where the petition is presented to coerce the company in satisfying some groundless claims made against it by the petitioner. The facts and circumstances of the present case indicate that motive. The appellants were Directors. They sold their shares. They went out of the management of the company in the month of August, 1969, They were parties to the proposed sale. Just when the sale of the machinery was going to be effected the appellants. presented a petition for winding up. In the recent English decision in Mann v. Goldstein, (1968) 1 WLR 1091 it was held that even though it appeared from the evidence that the company was insolvent, as the debts were substantially disputed the Court restrained the prosecution of the petition as an abuse of the process of the Court. It is apparent that the appellant, did not present the petition for any legitimate purpose.
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in Court the disputed claims of the appellants. The company has not ceased carrying on its business. Therefore the company will meet the dues as and when they fall due. The company has reasonable prospect of business and resourcesThe facts and circumstances of the present case indicate that motive. The appellants were Directors. They sold their shares. They went out of the management of the company in the month of August, 1969, They were parties to the proposed sale. Just when the sale of the machinery was going to be effected the appellants. presented a petition for winding up. In the recent Englishdecision in Mann v. Goldstein, (1968) 1 WLR1091 it was held that even though it appeared from the evidence that the company was insolvent, as the debts were substantially disputed the Court restrained the prosecution of the petition as an abuse of the process of the Court. It is apparent that the appellant, did not present the petition for any legitimate purpose17. The High Court correctly gave four principal reasons to reject the claims of the appellants to wind up the company as creditors. First, that the books of account of the company did not show the alleged claims of the appellants save and except the sum of Rs. 72,556.01. Second, many of the alleged claims are barred by limitation. There is no allegation by the appellants to support acknowledgement of any claim to oust the plea of limitation. Thirdly, the Katakia Brothers who were the Directors resigned in the month of August, 1969 and their three shares were transferred in the month of December, 1969 and up to the month of December, 1969 there was not a single letter of demand to the company in respect of any claim. Fourthly, one of Katakia Brothers was the Chairman of the Board of Directors and therefore the Katakias were in the knowledge as to the affairs of the company and the books of accounts and they signed the balance sheets which did not reflect any claim of the appellants except the two invoices for the amounts of Rs. 14,650 and Rs. 36,000. The High Court characterised the claim of the appellants as tainted by the vice of dishonesty18. The alleged debts of the appellants are disputed, denied, doubted and at least in one instance proved to be dishonest by the production of a receipt granted by the appellants. The books of the company do not show any of the claims excepting in respect of two invoices for Rs. 14,650 and Rupees 36,000. It was said by the appellants that the books would not bind the appellants. The appellants did not give any statutory notice to raise any presumption of inability to pay debt. The appellants would therefore be required to prove their claim20. Two rules are well settled. First if the debt is bona fide disputed and the defence is a substantial one, the Court will not wind up the company. The court has dismissed. a petition for winding up where the creditor claimed a sum for goods sold to the company and the company contended that no price had been agreed upon and the sum demanded by the creditor was unreasonable (See London and Paris Banking Corporation, (1874) 19 Eq. 444). Again, a petition for winding up by a creditor who claimed payment of an agreed sum for work done for the company when the company contended that the work had not been done properly was not allowed. (See Re. Brighton Club and Norfolk Hotel Co. Ltd., (1865) 35 Beav. 204)21. Where the debt is undisputed the Court will not act upon a defence that the company has the ability to pay the debt but the company chooses not to pay that particular debt (See Re. A Company 94 SJ 369). Where however there is no doubt that the company owes the creditor a debt entitling him to a winding up order but the exact amount of the debt is disputed the Court will make a winding up order without requiring the creditor to quantify the debt precisely (See Re. Tweeds Garages Ltd., 1962 Ch. 406).The principles on which the court acts are first that the defence of the company is in good faith and one of substance, secondly, the defence is likely to succeed in point of law and thirdly the company adduces prima facie proof of the facts on which the defence depends22. Another rule which the Court follows is that if there is opposition to the making of the winding up order by the creditors the Court will consider their wishes and may decline to make the winding up order. Under Section 557 ofthe Companies Act, 1956 in all matters relating to the winding up of the company the Court may ascertain the wishes of the creditors. The wishes of theshareholdersare also considered though perhaps the Court may attach greater weight to the views of the creditors. The law on this point is stated in Palmers Company Law, 21st Edition page 742 as follows: "This right to a winding up order is, however, qualified by another rule, viz., that the Court will regard the wishes of the majority in value of the creditors, and if, for some good reason, they object to a winding up order, the Court in its discretion may refuse the order". The wishes of the creditors will however be tested by the Court on the grounds as to whether the case of the persons opposing the winding up is reasonable; secondly whether there are matters which should be inquired into and investigated if a winding up order is made. It is also well settled that a winding up order will not be made on a creditors petition if it would not benefit him or the companys creditors generally. The grounds furnished by the creditors opposing the winding up will have an important bearing on the reasonable of the case, (See Re. P. and J. Wacrae Ltd., (1961) 1 All ER 302).
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VODAFONE IDEA LTD. (EARLIER KNOWN AS VODAFONE MOBILE SERVICES LIMITED) Vs. ASSISTANT COMMISSIONER OF INCOME TAX CIRCLE 26 (2) & ANR. | suit has been instituted by the plaintiff in the Judge, Small Cause Court claiming the right and interest in the immovable property. 35. A statutory provision containing non obstante clause has to be given full effect. This Court in Union of India v. G.M. Kokil (1984) Supp. SCC 196 has laid down in para 11 as below: (SCC p. 203) 11. … It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non obstante clause in Section 70, namely, notwithstanding anything contained in that Act must mean notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act. … 18. In the premises, we hold that in respect of Assessment Years ending on 31 st March 2017 or before, if a notice was issued in conformity with the requirements stated in sub-section (2) of Section 143 of the Act, it shall not be necessary to process the refund under sub- section (1) of Section 143 of the Act and that the requirement to process the return shall stand overridden. 19. We must now deal with the issue whether any intimation is required to be given to the assessee that because of initiation of proceedings pursuant to notice under sub-section (2) of Section 143 of the Act processing of return in terms of sub-section (1) of Section 143 of the Act, would stand deferred. The processing of return in terms of sub- section (1A) of Section 143 of the Act is to be done through centralized processing and as stated earlier, the scope of processing under sub- section (1) of Section 143 of the Act is purely summary in character. Once deeper scrutiny is undertaken and the matter is being considered from the perspective whether there is any avoidance of tax in any manner, issuance of notice under sub-section (2) itself is sufficient indication. Sub-section (1D) of Section 143 of the Act does not contemplate either issuance of any such intimation or further application of mind that the processing must be kept in abeyance. It would not, therefore, be proper to read into said provision the requirement to send a separate intimation. In our view, issuance of notice under sub-section (2) of Section 143 is enough to trigger the required consequence. Any other intimation is neither contemplated by the statute nor would it achieve any purpose. 20. Consequently, the submission that the intimation dated 23.07.2018 must be held to be invalid, inter alia on the ground that it was issued well after the period within which the return was required to be processed under sub-section (1) of Section 143 of the Act, must be rejected. 21. However, insofar as returns filed in respect of assessment year commencing on or after the 1 st April, 2017, a different regime has been contemplated by the Parliament. Section 241-A of the Act requires a separate recording of satisfaction on part of the Assessing Officer that having regard to the fact that a notice has been issued under sub-section (2) of Section 143, the grant of refund is likely to adversely affect the revenue; whereafter, with the previous approval of the Principal Commissioner or Commissioner and for reasons to be recorded in writing, the refund can be withheld. Since the statute now envisages exercise of power of withholding of refund in a particular manner, it goes without saying that for assessment year commencing after 01.04.2017 the requirements of Section 241-A of the Act must be satisfied. 22. We will, therefore, have to see whether insofar as AY 2017-18 is concerned, the order dated 14.03.2019 satisfies the required statutory parameters or not. In terms of second proviso to sub-section (1) of Section 143 of the Act, the required intimation under said sub-section must be given before the expiry of one year from the end of the financial year in which the return is made. In respect of AY 2017-18, the return having been filed on 25.11.2017, period available in terms of said second proviso was upto 31.03.2019, without taking into account the fact that revised return was filed on 13.07.2018. In the present case, the exercise of power on 14.03.2019 was not only after issuance of notice under sub-section (2) of Section 143 and after recording due satisfaction in terms of Section 241-A of the Act, but was also well within the period contemplated by sub-section (1) of Section 143 of the Act for causing due intimation. Whether the satisfaction recorded in terms of said Section 241-A of the Act was otherwise correct or not and whether case for withholding of refund was made out or not, are not the issues that arise for our consideration. For the present purposes, whether exercise of power is facially in conformity with the statutory provisions is the issue and we are satisfied that there is nothing in the exercise of power that led to the passing of the order dated 14.03.2019 which could be said to have violated any statutory requirements. 23. Insofar as AY 2014-15 is concerned, final assessment order passed under Section 143(3) of the Act indicates that the appellant is entitled to refund of Rs.733 Crores; while for AY 2015-16 there is a demand of Rs.582 Crores. During the course of hearing, it was suggested on behalf of the respondents that demands in respect of earlier assessment years including the liability as a result of order dated 28.12.2019 as referred to in para 5.1 hereinabove being outstanding, the respondents would be entitled to invoke the requisite power under Section 245 of the Act to set off the amount of refund payable in respect of AY 2014-15 against tax remaining payable. | 0[ds]13. The nature of exercise of power under sub-section (1) as against that under sub-sections (2) and (3) is thus completely different. In the former case, the matter is processed, only to check whether any apparent inconsistencies are evident on the face of the return and connected material which may call for any adjustment while in the latter case, the matter is scrutinized after taking into account such evidence as the assessee may produce. The exercise in the latter case is to ensure that there is no understating of income or overstating of loss or under- payment of the tax in any manner. In other words, the veracity of the return is checked threadbare rather than considering mere apparent inconsistencies from the return. Thus, the nature of power under these two provisions, as found by this Court in CIT v. Gujarat Electricity Board (2003) 260 ITR 84 continues to bear the same distinctionThe power under sub-section (1) of Section 143 of the Act is summary in nature designed to cause adjustments which are apparent from the return while that under sub-sections (2) and (3) is to scrutinize the return and cause deeper probe to arrive at the correct determination of the liability of the assessee14. The exercise of power under Sub-sections (2) and (3) of Section 143 of the Act is thus premised on non-acceptance of what is evident from the return itself and to ensure that there is no avoidance of tax in any manner. The dimension of such power is far greater and deeper than mere adjustments to be made in respect of what is available from the return. Once such scrutiny is undertaken and proceedings are initiated by issuance of a notice under sub-section (2) of Section 143, it would be anomalous and incongruent that while such proceedings so initiated are pending, the return be processed under sub-section (1) of Section 143, which may in a given case, entail payment of refund. Logically, the outcome of the exercise initiated through notice under sub-section (2) of Section 143, must determine whether any refund is due and payable. If the return itself is under probe and scrutiny, such return cannot be the foundation to sustain a claim for refund till such scrutiny is not complete. Considering the nature of power exercisable under these two limbs of Section 143, the inescapable conclusion is that the processing of return under sub-section (1) of Section 143 must await the further exercise of power of scrutiny assessment under sub-sections (2) and (3) of Section 143. If the power under sub-section (2) of Section 143 of the Act is initiated in a manner known to law, there cannot be any insistence that the processing under sub-section (1) of Section 143 be completed and refund be made before the scrutiny pursuant to notice under sub-section (2) of Section 143 is over15. The afore-stated conclusion is fortified and strengthened by clear stipulation to that effect in sub-section (1D) of Section 143. Irrespective of some change in the text of said provision which was sought to be introduced by Finance Act 2016 and not accepted by Finance Act, 2017, the legislative intent is clear from the expression, … the processing of a return shall not be necessary, where a notice has been issued to the assessee under sub-section (2) and by use of non-obstante clause. Though the period for which it would not be necessary to process the return was sought to be specified by Finance Act, 2016, mere absence of such period in the provision as it stands today, makes no difference. The above quoted portion from the provision and use of non-obstante clause indicate with sufficient clarity the intent of the Parliament that in cases where notice under sub-section (2) is issued and proceedings are initiated, the processing of a return under sub-section (1) shall not be necessary18. In the premises, we hold that in respect of Assessment Years ending on 31 st March 2017 or before, if a notice was issued in conformity with the requirements stated in sub-section (2) of Section 143 of the Act, it shall not be necessary to process the refund under sub- section (1) of Section 143 of the Act and that the requirement to process the return shall stand overriddenThe processing of return in terms of sub- section (1A) of Section 143 of the Act is to be done through centralized processing and as stated earlier, the scope of processing under sub- section (1) of Section 143 of the Act is purely summary in character. Once deeper scrutiny is undertaken and the matter is being considered from the perspective whether there is any avoidance of tax in any manner, issuance of notice under sub-section (2) itself is sufficient indication. Sub-section (1D) of Section 143 of the Act does not contemplate either issuance of any such intimation or further application of mind that the processing must be kept in abeyance. It would not, therefore, be proper to read into said provision the requirement to send a separate intimation. In our view, issuance of notice under sub-section (2) of Section 143 is enough to trigger the required consequence. Any other intimation is neither contemplated by the statute nor would it achieve any purpose20. Consequently, the submission that the intimation dated 23.07.2018 must be held to be invalid, inter alia on the ground that it was issued well after the period within which the return was required to be processed under sub-section (1) of Section 143 of the Act, must be rejected21. However, insofar as returns filed in respect of assessment year commencing on or after the 1 st April, 2017, a different regime has been contemplated by the Parliament. Section 241-A of the Act requires a separate recording of satisfaction on part of the Assessing Officer that having regard to the fact that a notice has been issued under sub-section (2) of Section 143, the grant of refund is likely to adversely affect the revenue; whereafter, with the previous approval of the Principal Commissioner or Commissioner and for reasons to be recorded in writing, the refund can be withheldSince the statute now envisages exercise of power of withholding of refund in a particular manner, it goes without saying that for assessment year commencing after 01.04.2017 the requirements of Section 241-A of the Act must be satisfiedIn terms of second proviso to sub-section (1) of Section 143 of the Act, the required intimation under said sub-section must be given before the expiry of one year from the end of the financial year in which the return is made. In respect of AY 2017-18, the return having been filed on 25.11.2017, period available in terms of said second proviso was upto 31.03.2019, without taking into account the fact that revised return was filed on 13.07.2018In the present case, the exercise of power on 14.03.2019 was not only after issuance of notice under sub-section (2) of Section 143 and after recording due satisfaction in terms of Section 241-A of the Act, but was also well within the period contemplated by sub-section (1) of Section 143 of the Act for causing due intimationWhether the satisfaction recorded in terms of said Section 241-A of the Act was otherwise correct or not and whether case for withholding of refund was made out or not, are not the issues that arise for our consideration. For the present purposes, whether exercise of power is facially in conformity with the statutory provisions is the issue and we are satisfied that there is nothing in the exercise of power that led to the passing of the order dated 14.03.2019 which could be said to have violated any statutory requirements23. Insofar as AY 2014-15 is concerned, final assessment order passed under Section 143(3) of the Act indicates that the appellant is entitled to refund of Rs.733 Crores; while for AY 2015-16 there is a demand of Rs.582 Crores. During the course of hearing, it was suggested on behalf of the respondents that demands in respect of earlier assessment years including the liability as a result of order dated 28.12.2019 as referred to in para 5.1 hereinabove being outstanding, the respondents would be entitled to invoke the requisite power under Section 245 of the Act to set off the amount of refund payable in respect of AY 2014-15 against tax remaining payable. | 0 | 15,189 | 1,551 | ### 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:
suit has been instituted by the plaintiff in the Judge, Small Cause Court claiming the right and interest in the immovable property. 35. A statutory provision containing non obstante clause has to be given full effect. This Court in Union of India v. G.M. Kokil (1984) Supp. SCC 196 has laid down in para 11 as below: (SCC p. 203) 11. … It is well known that a non obstante clause is a legislative device which is usually employed to give overriding effect to certain provisions over some contrary provisions that may be found either in the same enactment or some other enactment, that is to say, to avoid the operation and effect of all contrary provisions. Thus the non obstante clause in Section 70, namely, notwithstanding anything contained in that Act must mean notwithstanding anything to the contrary contained in that Act and as such it must refer to the exempting provisions which would be contrary to the general applicability of the Act. … 18. In the premises, we hold that in respect of Assessment Years ending on 31 st March 2017 or before, if a notice was issued in conformity with the requirements stated in sub-section (2) of Section 143 of the Act, it shall not be necessary to process the refund under sub- section (1) of Section 143 of the Act and that the requirement to process the return shall stand overridden. 19. We must now deal with the issue whether any intimation is required to be given to the assessee that because of initiation of proceedings pursuant to notice under sub-section (2) of Section 143 of the Act processing of return in terms of sub-section (1) of Section 143 of the Act, would stand deferred. The processing of return in terms of sub- section (1A) of Section 143 of the Act is to be done through centralized processing and as stated earlier, the scope of processing under sub- section (1) of Section 143 of the Act is purely summary in character. Once deeper scrutiny is undertaken and the matter is being considered from the perspective whether there is any avoidance of tax in any manner, issuance of notice under sub-section (2) itself is sufficient indication. Sub-section (1D) of Section 143 of the Act does not contemplate either issuance of any such intimation or further application of mind that the processing must be kept in abeyance. It would not, therefore, be proper to read into said provision the requirement to send a separate intimation. In our view, issuance of notice under sub-section (2) of Section 143 is enough to trigger the required consequence. Any other intimation is neither contemplated by the statute nor would it achieve any purpose. 20. Consequently, the submission that the intimation dated 23.07.2018 must be held to be invalid, inter alia on the ground that it was issued well after the period within which the return was required to be processed under sub-section (1) of Section 143 of the Act, must be rejected. 21. However, insofar as returns filed in respect of assessment year commencing on or after the 1 st April, 2017, a different regime has been contemplated by the Parliament. Section 241-A of the Act requires a separate recording of satisfaction on part of the Assessing Officer that having regard to the fact that a notice has been issued under sub-section (2) of Section 143, the grant of refund is likely to adversely affect the revenue; whereafter, with the previous approval of the Principal Commissioner or Commissioner and for reasons to be recorded in writing, the refund can be withheld. Since the statute now envisages exercise of power of withholding of refund in a particular manner, it goes without saying that for assessment year commencing after 01.04.2017 the requirements of Section 241-A of the Act must be satisfied. 22. We will, therefore, have to see whether insofar as AY 2017-18 is concerned, the order dated 14.03.2019 satisfies the required statutory parameters or not. In terms of second proviso to sub-section (1) of Section 143 of the Act, the required intimation under said sub-section must be given before the expiry of one year from the end of the financial year in which the return is made. In respect of AY 2017-18, the return having been filed on 25.11.2017, period available in terms of said second proviso was upto 31.03.2019, without taking into account the fact that revised return was filed on 13.07.2018. In the present case, the exercise of power on 14.03.2019 was not only after issuance of notice under sub-section (2) of Section 143 and after recording due satisfaction in terms of Section 241-A of the Act, but was also well within the period contemplated by sub-section (1) of Section 143 of the Act for causing due intimation. Whether the satisfaction recorded in terms of said Section 241-A of the Act was otherwise correct or not and whether case for withholding of refund was made out or not, are not the issues that arise for our consideration. For the present purposes, whether exercise of power is facially in conformity with the statutory provisions is the issue and we are satisfied that there is nothing in the exercise of power that led to the passing of the order dated 14.03.2019 which could be said to have violated any statutory requirements. 23. Insofar as AY 2014-15 is concerned, final assessment order passed under Section 143(3) of the Act indicates that the appellant is entitled to refund of Rs.733 Crores; while for AY 2015-16 there is a demand of Rs.582 Crores. During the course of hearing, it was suggested on behalf of the respondents that demands in respect of earlier assessment years including the liability as a result of order dated 28.12.2019 as referred to in para 5.1 hereinabove being outstanding, the respondents would be entitled to invoke the requisite power under Section 245 of the Act to set off the amount of refund payable in respect of AY 2014-15 against tax remaining payable.
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inescapable conclusion is that the processing of return under sub-section (1) of Section 143 must await the further exercise of power of scrutiny assessment under sub-sections (2) and (3) of Section 143. If the power under sub-section (2) of Section 143 of the Act is initiated in a manner known to law, there cannot be any insistence that the processing under sub-section (1) of Section 143 be completed and refund be made before the scrutiny pursuant to notice under sub-section (2) of Section 143 is over15. The afore-stated conclusion is fortified and strengthened by clear stipulation to that effect in sub-section (1D) of Section 143. Irrespective of some change in the text of said provision which was sought to be introduced by Finance Act 2016 and not accepted by Finance Act, 2017, the legislative intent is clear from the expression, … the processing of a return shall not be necessary, where a notice has been issued to the assessee under sub-section (2) and by use of non-obstante clause. Though the period for which it would not be necessary to process the return was sought to be specified by Finance Act, 2016, mere absence of such period in the provision as it stands today, makes no difference. The above quoted portion from the provision and use of non-obstante clause indicate with sufficient clarity the intent of the Parliament that in cases where notice under sub-section (2) is issued and proceedings are initiated, the processing of a return under sub-section (1) shall not be necessary18. In the premises, we hold that in respect of Assessment Years ending on 31 st March 2017 or before, if a notice was issued in conformity with the requirements stated in sub-section (2) of Section 143 of the Act, it shall not be necessary to process the refund under sub- section (1) of Section 143 of the Act and that the requirement to process the return shall stand overriddenThe processing of return in terms of sub- section (1A) of Section 143 of the Act is to be done through centralized processing and as stated earlier, the scope of processing under sub- section (1) of Section 143 of the Act is purely summary in character. Once deeper scrutiny is undertaken and the matter is being considered from the perspective whether there is any avoidance of tax in any manner, issuance of notice under sub-section (2) itself is sufficient indication. Sub-section (1D) of Section 143 of the Act does not contemplate either issuance of any such intimation or further application of mind that the processing must be kept in abeyance. It would not, therefore, be proper to read into said provision the requirement to send a separate intimation. In our view, issuance of notice under sub-section (2) of Section 143 is enough to trigger the required consequence. Any other intimation is neither contemplated by the statute nor would it achieve any purpose20. Consequently, the submission that the intimation dated 23.07.2018 must be held to be invalid, inter alia on the ground that it was issued well after the period within which the return was required to be processed under sub-section (1) of Section 143 of the Act, must be rejected21. However, insofar as returns filed in respect of assessment year commencing on or after the 1 st April, 2017, a different regime has been contemplated by the Parliament. Section 241-A of the Act requires a separate recording of satisfaction on part of the Assessing Officer that having regard to the fact that a notice has been issued under sub-section (2) of Section 143, the grant of refund is likely to adversely affect the revenue; whereafter, with the previous approval of the Principal Commissioner or Commissioner and for reasons to be recorded in writing, the refund can be withheldSince the statute now envisages exercise of power of withholding of refund in a particular manner, it goes without saying that for assessment year commencing after 01.04.2017 the requirements of Section 241-A of the Act must be satisfiedIn terms of second proviso to sub-section (1) of Section 143 of the Act, the required intimation under said sub-section must be given before the expiry of one year from the end of the financial year in which the return is made. In respect of AY 2017-18, the return having been filed on 25.11.2017, period available in terms of said second proviso was upto 31.03.2019, without taking into account the fact that revised return was filed on 13.07.2018In the present case, the exercise of power on 14.03.2019 was not only after issuance of notice under sub-section (2) of Section 143 and after recording due satisfaction in terms of Section 241-A of the Act, but was also well within the period contemplated by sub-section (1) of Section 143 of the Act for causing due intimationWhether the satisfaction recorded in terms of said Section 241-A of the Act was otherwise correct or not and whether case for withholding of refund was made out or not, are not the issues that arise for our consideration. For the present purposes, whether exercise of power is facially in conformity with the statutory provisions is the issue and we are satisfied that there is nothing in the exercise of power that led to the passing of the order dated 14.03.2019 which could be said to have violated any statutory requirements23. Insofar as AY 2014-15 is concerned, final assessment order passed under Section 143(3) of the Act indicates that the appellant is entitled to refund of Rs.733 Crores; while for AY 2015-16 there is a demand of Rs.582 Crores. During the course of hearing, it was suggested on behalf of the respondents that demands in respect of earlier assessment years including the liability as a result of order dated 28.12.2019 as referred to in para 5.1 hereinabove being outstanding, the respondents would be entitled to invoke the requisite power under Section 245 of the Act to set off the amount of refund payable in respect of AY 2014-15 against tax remaining payable.
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Kunju Kesavan Vs. M.M. Philip & Others | clear and there was doubt whether this Bhagavathi Valli, was exempted or not. The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff made the following plea in the replication :"The suit property was obtained as makkathayam property, by Bhagavathi Valli, under the Ezhava Act. And as per the provisions in the said Act, the said property was obtained exclusively by Vasudevan, subsequent to the death of the said Bhagavathi Valli and Sivaraman".and the notification was field to controvert his allegation. In our opinion, the subject of exemption was properly raised between the parties and considered in the High Court and the courts below. The High Court differed from the District Court with regard to the notification and held that Bhagavathi Valli was exempted from the operation of part IV of the Ezhava Act. We shall now consider whether the finding on this part of the case given by the District Judge or that given by the High Court is correct.18. Exh. II is a notification issued in 1102 M. E. It reads :"Whereas the undermentioned persons have applied to the Government, under Section 33 (1) (i) of the Travancore Ezhava Regulation, Act 3 of 1100 M. E., praying to exempt them from the provisions of Part IV of the said regulation, and whereas the Government have become convinced of the truth of their application, on making enquiries.The Government have exempted each of the following persons, from the provisions of Part IV of the Travancore Ezhava Regulation, Act 3 of 1100 M. E.Huzur, Trivandrum (By order)8th January 1927 K. GeorgeChief Secretary to Government.""S. No. Full name of the person. Address.170. Bhagavathi Valli belonging to the branch of Bhagavathi of Pinarummoottu tarwad Thottuvarambu Bungalow,Katakampalli Pakuthi, Trivandrum Taluk.171. Bhagavathi Narayani of-do- -do-172. Narayani Gouri of -do- -do-".... ..."83. Narayanan Lakshmanan of Pinarummoctu Vanchiyoor Pakuthi, Trivandrum".... ... ..."185. Bhagavathi Valli of -do- -do-186. Bhagavathi Narayani -do-."... ... ...It was contended by the answering respondent that Bhagavathi Valli at No. 170 is this Bhagavathi Valli. His witness, Mathen Kuruvila, an advocate, deposed that Bhagavathi Valli shown at No. 170 was Bhagavathi Valliamma and Bhagavathi Narrayani at No. 171 was her sister and Narayani Gouri at No. 172 was Narayanis daughter. The plaintiff admitted that he had seen Bhagavathi Narayani on several occasions, that their house was called Thottuvarambu that Pinnarummoottu Veedu was the name of the tarwad house, that Thottuvarambu Veedu is in Katakam Palli Pakuthi, and that he did not know whether Gouri was also residing in Thottuvarambu Veedu. Dr. Seyid Muhammed refers to a number of documents in which the address of Bhagavathi Valli was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri. These documents were of the years 1928 to 1938. They are exhibits C, D, K, L, M, Q, and R. He contends that in all these documents except one (exh. Q), the address of Bhagavathi Valli or of her sister was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri which is not the address shown in exh. II, and that Bhagavathi Valli at No. 170 was not this Bhagavathi Valli. In exh. Q, however, Bhagavathi Narayani, deposing in an earlier suit in 1110 M. E. (1935), gave her address as "Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri and now in Thottuvaramba Bungalow in Katakampulli Pakuthi." And stated that she had an elder sister by name Bhagavathi Valli who was residing in the Veedu. It is, therefore, clear that the tarwad had two places of residence, one Veedu in Vanchiyoor Pathirikari Muri, and the other, a bungalow called Thottuvaramba in Katakampalli Pakuthi. One of these addresses is given in Exh. II. It would, therefore, follow that the address as given in Exh. II does not show that this was some other Bhagavathi Valli, Indeed, the points which identify the suit Bhagavathi Valli with the Bhagavathi Valli mentioned at No. 170 are numerous. The name is correctly described. It is also a fact that she belonged to the Bhagavathi Bhagavathi Branch. Further she was of Pinarummoottu tarwad. Then follow two other names, namely, Bhagavathi Narayani and Narayani Gouri who also belonged to the same branch and tarwad and who could be none other than her sister and her niece. Even the address is correct. It is, therefore, quite clear that the High Court was right in holding that the identity had been established. The observation of the learned District Judge that there were many Bhagavathi Vallis in the list is not borne out on the record of this case, because the only other Bhagavathi Valli mentioned at No. 185 may or may not be the same Bhagavathi Valli whose name is mentioned in conjunction with one Narayanan Lakshmanan of Pinarummootu, Vanchiyoor Pakuthi. Trivandrum. In the other notification, under which exemption from Part VII of the Act was notified, the branch of Bhagavathi Bhagavathi of Pinarummoottial tarwad was again shown to be at Thottuvaramba Bungalow in Katakampalli Pakuthi in Trivamdrum Taluk, while Pinarummoottil tarwad was shown as at Pathirikari Muri in Vanchiyoor Pakuthi in Trivandrum. This again proves that the tarwad had two houses which were occupied by different branches.19. We are satisfied that the exemption under the Act has been duly proved in this case. Since Bhagavathi Valli was not subject to Part IV of the Ezhava Act, it is obvious that under the pure Marumakkathayam law, Meenakshi and Vasudevan were not her heirs, but Bhagavathi Narayani and her daughter Gouri. Of these, Gouri Narayani joined in executing the document R in favour of the answering respondent, which was executed by the legal representatives of the original mortgagee. In our opinion, therefore, the High Court was right in holding that the present appellant was not entitled to redeem the otti, having never enjoyed the jenmom rights. | 0[ds]17. We do not think that the plaintiff in the case was taken by surprise. The notification must have been filed with the written statement, because there is nothing to show that it was tendered subsequently after obtaining the orders of the court. The plaintiff was also cross-examined with respect to the address of Bhagavathi Valli, and the only witness examined on the side of the defendant deposed about the notification and was not cross-examined on this point. The plaintiff did not seek the permission of the court to lead evidence on this point. Nor did he object to the reception of this evidence. Even before the District Judge, the contention was not that the evidence was wrongly received without a proper plea and issue but that the notification was not clear and there was doubt whether this Bhagavathi Valli, was exempted or not. The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate thewas contended by the answering respondent that Bhagavathi Valli at No. 170 is this Bhagavathi Valli. His witness, Mathen Kuruvila, an advocate, deposed that Bhagavathi Valli shown at No. 170 was Bhagavathi Valliamma and Bhagavathi Narrayani at No. 171 was her sister and Narayani Gouri at No. 172 was Narayanis daughter. The plaintiff admitted that he had seen Bhagavathi Narayani on several occasions, that their house was called Thottuvarambu that Pinnarummoottu Veedu was the name of the tarwad house, that Thottuvarambu Veedu is in Katakam Palli Pakuthi, and that he did not know whether Gouri was also residing in Thottuvarambu Veedu. Dr. Seyid Muhammed refers to a number of documents in which the address of Bhagavathi Valli was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri. These documents were of the years 1928 to 1938. They are exhibits C, D, K, L, M, Q, and R. He contends that in all these documents except one (exh. Q), the address of Bhagavathi Valli or of her sister was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri which is not the address shown in exh. II, and that Bhagavathi Valli at No. 170 was not this Bhagavathi Valli. In exh. Q, however, Bhagavathi Narayani, deposing in an earlier suit in 1110 M. E. (1935), gave her address as "Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri and now in Thottuvaramba Bungalow in Katakampulli Pakuthi." And stated that she had an elder sister by name Bhagavathi Valli who was residing in the Veedu. It is, therefore, clear that the tarwad had two places of residence, one Veedu in Vanchiyoor Pathirikari Muri, and the other, a bungalow called Thottuvaramba in Katakampalli Pakuthi. One of these addresses is given in Exh. II. It would, therefore, follow that the address as given in Exh. II does not show that this was some other Bhagavathi Valli, Indeed, the points which identify the suit Bhagavathi Valli with the Bhagavathi Valli mentioned at No. 170 are numerous. The name is correctly described. It is also a fact that she belonged to the Bhagavathi Bhagavathi Branch. Further she was of Pinarummoottu tarwad. Then follow two other names, namely, Bhagavathi Narayani and Narayani Gouri who also belonged to the same branch and tarwad and who could be none other than her sister and her niece. Even the address is correct. It is, therefore, quite clear that the High Court was right in holding that the identity had been established. The observation of the learned District Judge that there were many Bhagavathi Vallis in the list is not borne out on the record of this case, because the only other Bhagavathi Valli mentioned at No. 185 may or may not be the same Bhagavathi Valli whose name is mentioned in conjunction with one Narayanan Lakshmanan of Pinarummootu, Vanchiyoor Pakuthi. Trivandrum. In the other notification, under which exemption from Part VII of the Act was notified, the branch of Bhagavathi Bhagavathi of Pinarummoottial tarwad was again shown to be at Thottuvaramba Bungalow in Katakampalli Pakuthi in Trivamdrum Taluk, while Pinarummoottil tarwad was shown as at Pathirikari Muri in Vanchiyoor Pakuthi in Trivandrum. This again proves that the tarwad had two houses which were occupied by different branches.19. We are satisfied that the exemption under the Act has been duly proved in this case. Since Bhagavathi Valli was not subject to Part IV of the Ezhava Act, it is obvious that under the pure Marumakkathayam law, Meenakshi and Vasudevan were not her heirs, but Bhagavathi Narayani and her daughter Gouri. Of these, Gouri Narayani joined in executing the document R in favour of the answering respondent, which was executed by the legal representatives of the original mortgagee. In our opinion, therefore, the High Court was right in holding that the present appellant was not entitled to redeem the otti, having never enjoyed the jenmom rights. | 0 | 4,745 | 930 | ### 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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clear and there was doubt whether this Bhagavathi Valli, was exempted or not. The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate the decision. The plea was hardly needed in view of the fact that the plaintiff made the following plea in the replication :"The suit property was obtained as makkathayam property, by Bhagavathi Valli, under the Ezhava Act. And as per the provisions in the said Act, the said property was obtained exclusively by Vasudevan, subsequent to the death of the said Bhagavathi Valli and Sivaraman".and the notification was field to controvert his allegation. In our opinion, the subject of exemption was properly raised between the parties and considered in the High Court and the courts below. The High Court differed from the District Court with regard to the notification and held that Bhagavathi Valli was exempted from the operation of part IV of the Ezhava Act. We shall now consider whether the finding on this part of the case given by the District Judge or that given by the High Court is correct.18. Exh. II is a notification issued in 1102 M. E. It reads :"Whereas the undermentioned persons have applied to the Government, under Section 33 (1) (i) of the Travancore Ezhava Regulation, Act 3 of 1100 M. E., praying to exempt them from the provisions of Part IV of the said regulation, and whereas the Government have become convinced of the truth of their application, on making enquiries.The Government have exempted each of the following persons, from the provisions of Part IV of the Travancore Ezhava Regulation, Act 3 of 1100 M. E.Huzur, Trivandrum (By order)8th January 1927 K. GeorgeChief Secretary to Government.""S. No. Full name of the person. Address.170. Bhagavathi Valli belonging to the branch of Bhagavathi of Pinarummoottu tarwad Thottuvarambu Bungalow,Katakampalli Pakuthi, Trivandrum Taluk.171. Bhagavathi Narayani of-do- -do-172. Narayani Gouri of -do- -do-".... ..."83. Narayanan Lakshmanan of Pinarummoctu Vanchiyoor Pakuthi, Trivandrum".... ... ..."185. Bhagavathi Valli of -do- -do-186. Bhagavathi Narayani -do-."... ... ...It was contended by the answering respondent that Bhagavathi Valli at No. 170 is this Bhagavathi Valli. His witness, Mathen Kuruvila, an advocate, deposed that Bhagavathi Valli shown at No. 170 was Bhagavathi Valliamma and Bhagavathi Narrayani at No. 171 was her sister and Narayani Gouri at No. 172 was Narayanis daughter. The plaintiff admitted that he had seen Bhagavathi Narayani on several occasions, that their house was called Thottuvarambu that Pinnarummoottu Veedu was the name of the tarwad house, that Thottuvarambu Veedu is in Katakam Palli Pakuthi, and that he did not know whether Gouri was also residing in Thottuvarambu Veedu. Dr. Seyid Muhammed refers to a number of documents in which the address of Bhagavathi Valli was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri. These documents were of the years 1928 to 1938. They are exhibits C, D, K, L, M, Q, and R. He contends that in all these documents except one (exh. Q), the address of Bhagavathi Valli or of her sister was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri which is not the address shown in exh. II, and that Bhagavathi Valli at No. 170 was not this Bhagavathi Valli. In exh. Q, however, Bhagavathi Narayani, deposing in an earlier suit in 1110 M. E. (1935), gave her address as "Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri and now in Thottuvaramba Bungalow in Katakampulli Pakuthi." And stated that she had an elder sister by name Bhagavathi Valli who was residing in the Veedu. It is, therefore, clear that the tarwad had two places of residence, one Veedu in Vanchiyoor Pathirikari Muri, and the other, a bungalow called Thottuvaramba in Katakampalli Pakuthi. One of these addresses is given in Exh. II. It would, therefore, follow that the address as given in Exh. II does not show that this was some other Bhagavathi Valli, Indeed, the points which identify the suit Bhagavathi Valli with the Bhagavathi Valli mentioned at No. 170 are numerous. The name is correctly described. It is also a fact that she belonged to the Bhagavathi Bhagavathi Branch. Further she was of Pinarummoottu tarwad. Then follow two other names, namely, Bhagavathi Narayani and Narayani Gouri who also belonged to the same branch and tarwad and who could be none other than her sister and her niece. Even the address is correct. It is, therefore, quite clear that the High Court was right in holding that the identity had been established. The observation of the learned District Judge that there were many Bhagavathi Vallis in the list is not borne out on the record of this case, because the only other Bhagavathi Valli mentioned at No. 185 may or may not be the same Bhagavathi Valli whose name is mentioned in conjunction with one Narayanan Lakshmanan of Pinarummootu, Vanchiyoor Pakuthi. Trivandrum. In the other notification, under which exemption from Part VII of the Act was notified, the branch of Bhagavathi Bhagavathi of Pinarummoottial tarwad was again shown to be at Thottuvaramba Bungalow in Katakampalli Pakuthi in Trivamdrum Taluk, while Pinarummoottil tarwad was shown as at Pathirikari Muri in Vanchiyoor Pakuthi in Trivandrum. This again proves that the tarwad had two houses which were occupied by different branches.19. We are satisfied that the exemption under the Act has been duly proved in this case. Since Bhagavathi Valli was not subject to Part IV of the Ezhava Act, it is obvious that under the pure Marumakkathayam law, Meenakshi and Vasudevan were not her heirs, but Bhagavathi Narayani and her daughter Gouri. Of these, Gouri Narayani joined in executing the document R in favour of the answering respondent, which was executed by the legal representatives of the original mortgagee. In our opinion, therefore, the High Court was right in holding that the present appellant was not entitled to redeem the otti, having never enjoyed the jenmom rights.
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17. We do not think that the plaintiff in the case was taken by surprise. The notification must have been filed with the written statement, because there is nothing to show that it was tendered subsequently after obtaining the orders of the court. The plaintiff was also cross-examined with respect to the address of Bhagavathi Valli, and the only witness examined on the side of the defendant deposed about the notification and was not cross-examined on this point. The plaintiff did not seek the permission of the court to lead evidence on this point. Nor did he object to the reception of this evidence. Even before the District Judge, the contention was not that the evidence was wrongly received without a proper plea and issue but that the notification was not clear and there was doubt whether this Bhagavathi Valli, was exempted or not. The parties went to trial, fully understanding the central fact whether the succession as laid down in the Ezhava Act applied to Bhagavathi Valli or not. The absence of an issue, therefore, did not lead to a mis-trial sufficient to vitiate thewas contended by the answering respondent that Bhagavathi Valli at No. 170 is this Bhagavathi Valli. His witness, Mathen Kuruvila, an advocate, deposed that Bhagavathi Valli shown at No. 170 was Bhagavathi Valliamma and Bhagavathi Narrayani at No. 171 was her sister and Narayani Gouri at No. 172 was Narayanis daughter. The plaintiff admitted that he had seen Bhagavathi Narayani on several occasions, that their house was called Thottuvarambu that Pinnarummoottu Veedu was the name of the tarwad house, that Thottuvarambu Veedu is in Katakam Palli Pakuthi, and that he did not know whether Gouri was also residing in Thottuvarambu Veedu. Dr. Seyid Muhammed refers to a number of documents in which the address of Bhagavathi Valli was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri. These documents were of the years 1928 to 1938. They are exhibits C, D, K, L, M, Q, and R. He contends that in all these documents except one (exh. Q), the address of Bhagavathi Valli or of her sister was shown as Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri which is not the address shown in exh. II, and that Bhagavathi Valli at No. 170 was not this Bhagavathi Valli. In exh. Q, however, Bhagavathi Narayani, deposing in an earlier suit in 1110 M. E. (1935), gave her address as "Pinarummoottu Veedu in Vanchiyoor Pathirikari Muri and now in Thottuvaramba Bungalow in Katakampulli Pakuthi." And stated that she had an elder sister by name Bhagavathi Valli who was residing in the Veedu. It is, therefore, clear that the tarwad had two places of residence, one Veedu in Vanchiyoor Pathirikari Muri, and the other, a bungalow called Thottuvaramba in Katakampalli Pakuthi. One of these addresses is given in Exh. II. It would, therefore, follow that the address as given in Exh. II does not show that this was some other Bhagavathi Valli, Indeed, the points which identify the suit Bhagavathi Valli with the Bhagavathi Valli mentioned at No. 170 are numerous. The name is correctly described. It is also a fact that she belonged to the Bhagavathi Bhagavathi Branch. Further she was of Pinarummoottu tarwad. Then follow two other names, namely, Bhagavathi Narayani and Narayani Gouri who also belonged to the same branch and tarwad and who could be none other than her sister and her niece. Even the address is correct. It is, therefore, quite clear that the High Court was right in holding that the identity had been established. The observation of the learned District Judge that there were many Bhagavathi Vallis in the list is not borne out on the record of this case, because the only other Bhagavathi Valli mentioned at No. 185 may or may not be the same Bhagavathi Valli whose name is mentioned in conjunction with one Narayanan Lakshmanan of Pinarummootu, Vanchiyoor Pakuthi. Trivandrum. In the other notification, under which exemption from Part VII of the Act was notified, the branch of Bhagavathi Bhagavathi of Pinarummoottial tarwad was again shown to be at Thottuvaramba Bungalow in Katakampalli Pakuthi in Trivamdrum Taluk, while Pinarummoottil tarwad was shown as at Pathirikari Muri in Vanchiyoor Pakuthi in Trivandrum. This again proves that the tarwad had two houses which were occupied by different branches.19. We are satisfied that the exemption under the Act has been duly proved in this case. Since Bhagavathi Valli was not subject to Part IV of the Ezhava Act, it is obvious that under the pure Marumakkathayam law, Meenakshi and Vasudevan were not her heirs, but Bhagavathi Narayani and her daughter Gouri. Of these, Gouri Narayani joined in executing the document R in favour of the answering respondent, which was executed by the legal representatives of the original mortgagee. In our opinion, therefore, the High Court was right in holding that the present appellant was not entitled to redeem the otti, having never enjoyed the jenmom rights.
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UNION OF INDIA Vs. TARSEM SINGH | of the 2013 Act.) In any case, as has been pointed out hereinabove, the case of Chajju Ram (supra), has been referred to a larger Bench. In this view of the matter, we are of the view that the view of the Punjab and Haryana High Court is correct, whereas the view of the Rajasthan High Court is not correct. 39. We were also referred to the judgment of a learned Single Judge of the Karnataka High Court reported as Lalita vs Union of India AIR 2003 Karnataka 165, as well as a judgment of the Division Bench of the Madras High Court in T. Chakrapani vs Union of India, both of which distinguished the Requisition Act cases and relied upon Nagpur Improvement Trust (supra) in order to reach the same conclusion as the Punjab and Haryana High Court. Both these judgments are also correct. 40. One more argument was raised by learned counsel appearing on behalf of the Respondents, which is that nothing survives in these mattes in view of orders passed by this Court in Union of India v. T. Chakrapani – the Division Bench judgment of the Madras High Court having come before this Court. This order is quoted by us in full :?In view of the statement made by Shri Ranjit Kumar, learned Solicitor General of India on an earlier date of the hearing that solatium in terms of the impugned order of the High Court would be granted for the instant acquisitions made under the provisions of the National Highways Act, 1956, no subsisting issue remains in the present appeals as also in the special leave petition. The appeals as also the special leave petition are accordingly closed. The respondents – writ petitioners be paid solatium as due in terms of the impugned order(s) along with interest thereon.?We were also referred to an order in Sunita Mehra v. Union of India (2016) SCC OnLine 1128, in which this Court held :"6. The only point agitated before us by the learned Solicitor General is that in paragraph 23 of the impugned judgment of the High Court, it has been held that land- owners would ?henceforth? be entitled to solatium and interest as envisaged by the provisions of Sections 23 and 28 of the Land Acquisition Act, 1894. In the ultimate paragraph of the impugned judgment it has, however, been mentioned that in respect of all acquisitions made under the National Highways Act, 1956, solatium and interest in terms similar to those contained in Sections 23(2) and 28 of the Land Acquisition Act, 1894 will have to be paid. 7. Learned Solicitor General has pointed out that there is an apparent inconsistency in the judgment, which needs to be clarified. It has also been submitted by the learned Solicitor General that the order of the High Court should be clarified to mean that the issue of grant of interest and solatium should not be allowed to be reopened without any restriction or reference to time. Learned Solicitor General has particularly submitted that to understand the order of the High Court in any other manner would not only seriously burden the public exchequer but would also amount to overlooking the delay that may have occurred on the part of the land- owner(s) in approaching the Court and may open floodgates for en masse litigation on the issue. 8. We have considered the submissions advanced. In Gurpreet Singh v. Union of India, (2006) 8 SCC 457 , this Court, though in a different context, had restricted the operation of the judgment of this Court in Sunder v. Union of India, (2001) 7 SCC 211 and had granted the benefit of interest on solatium only in respect of pending proceedings. We are of the view that a similar course should be adopted in the present case also. Accordingly, it is directed that the award of solatium and interest on solatium should be made effective only to proceedings pending on the date of the High Court order in Golden Iron & Steel Forgins v. Union of India i.e. 28.03.2008. Concluded cases should not be opened. As for future proceedings, the position would be covered by the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (came into force on 01.01.2014), which Act has been made applicable to acquisitions under the National Highways Act, 1956 by virtue of notification/order issued under the provisions of the Act of 2013.?41. There is no doubt that the learned Solicitor General, in the aforesaid two orders, has conceded the issue raised in these cases. This assumes importance in view of the plea of Shri Divan that the impugned judgments should be set aside on the ground that when the arbitral awards did not provide for solatium or interest, no Section 34 petition having been filed by the landowners on this score, the Division Bench judgments that are impugned before us ought not to have allowed solatium and/or interest. Ordinarily, we would have acceded to this plea, but given the fact that the Government itself is of the view that solatium and interest should be granted even in cases that arise between 1997 and 2015, in the interest of justice we decline to interfere with such orders, given our discretionary jurisdiction under Article 136 of the Constitution of India. We therefore declare that the provisions of the Land Acquisition Act relating to solatium and interest contained in Section 23(1A) and (2) and interest payable in terms of section 28 proviso will apply to acquisitions made under the National Highways Act. Consequently, the provision of Section 3J is, to this extent, violative of Article 14 of the Constitution of India and, therefore, declared to be unconstitutional. Accordingly, Appeal @ SLP (C) No. 9599/2019 is dismissed. 42. Coming to the individual appeals in the case, Shri Mukul Rohatgi has raised essentially 11 grounds, which, according to him, require the Court?s attention. We will deal with each of these grounds seriatim hereinbelow: | 0[ds]6. Having heard the learned counsel on both sides, it is necessary to first mention that the National Highways Act, 1956, as originally enacted, did not provide for acquisition of land. Thus, till the National Highways Laws (Amendment) Act, 1997, all acquisitions for the purpose of National Highways were made under the Land Acquisition Act, and the owners were given, in addition to market value, solatium as well as interest under the provisions of thatthe solatium that is paid to a landowner is on account of the fact that a landowner, who may not be willing to part with his land, has now to do so, and that too at a value fixed legislatively and not through negotiation, by which, arguably, such land owner would get the best price for the property to be sold. Once this is understood in its correct perspective, it is clear that ?solatium? is part and parcel of compensation that is payable for compulsory acquisition of land.As has been stated by us hereinabove, solatium and interest were awarded to landowners for compulsory acquisition of their lands for the purpose of National Highways until the 1997 Amendment Act. Interestingly, after the Land Acquisition Act has been repealed and The Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 has come intoThe First Schedule to the said Act provides that solatium equivalent to 100% of the market value multiplied by various factors, depending on whether the land is situated in a rural or urban area, constitutes minimum compensation package to be given to those whose land is acquired. The Fourth Schedule to this Act, to be read along with Section 105, expressly includes under Item 7, the National Highways Act, 1956. In Item 9, this Schedule also includes The Requisitioning and Acquisition of Immovable Property Act, 1952. By a notification dated 28 th August, 2015 issued under Section 105 read with Section 113 of the 2013 Act, it is provided that the 2013 Act compensation provisions will apply to acquisitions that take place under the National Highways Act. The result is that both before the 1997 Amendment Act and after the coming into force of the 2013 Act, solatium and interest is payable to landowners whose property is compulsorily acquired for purposes of National Highways. This is one other very important circumstance to be borne in mind when judging the constitutional validity of the 1997 Amendment Act for the interregnum period from 1997 to, we were referred to three judgments in Property Owners? Association v. State of Maharashtra. In the first of these judgments reported in (1996) 4 SCC 49 , this Court has referred the matter to five learned Judges on the vexed question as to whether Article 31-C survived at all in view of the declaration contained in Minerva Mills v. Union of India 1981 (1) SCR 206 to the effect that the amended Article 31-C was constitutionally invalid. As the aforesaid declaration would not revive the original Article 31-C, the Article became a dead letter. When the same case travelled to five learned Judges reported in (2001) 4 SCC 455 , this Court was of the opinion that the views expressed in Sanjeev Coke (supra) require reconsideration in view of the fact that Sanjeev Coke (supra) adopted the reasoning of Krishna Iyer, J. in State of Karnataka vs Shri Ranganatha Reddy (1977) 4 SCC 471 and not the reasoning of the majority judgment of Untwalai, J. who stated that he must not be understood to agree with all that has been said by Krishna Iyer, J. in his judgment. The Court, therefore, referred the matter to seven learned Judges. When the matter came up before the seven learned Judges, reported in (2013) 7 SCC 522 , this Court held that the statement made in Sanjeev Coke (supra), followed by several other judgments, that the ?material resources of the community? would include privately owned resources, would be prima facie incorrect and hence the matter was referred to nine learned Judges of this Court, which reference is still pending. We have not deemed it necessary to refer this case to be tagged along with the reference to nine learned Judges, as we will assume for the purpose of this case that Article 31-C, as originally enacted, continues to exist and that the ?material resources of the community? would include private property as well.Shri Divan next referred us to State of Tamil Nadu vs L. Abu Kavur Bai (1984) 1 SCC 515 , which held that the Tamil Nadu Stage Carriage and Contract Carriages (Acquisition) Act, 1973 was protected by Article 31-C of the Constitution of India. This was held on the footing that a nationalisation measure would fall within Article 39(b) as the word ?distribution? is a word of extremely wide import, which would include nationalisation of transport as a distributive process for the good of the community. This situation is far removed from the Amendment Act to the National Highways Act in the present case, which is not a nationalisation measure at all, but is a measure to speed up the acquisition process. Shri Divan then relied upon this Court?s judgment in Maharashtra SEB vs Thana Electric Supply Co. (1989) 3 SCC 616 , in which the Indian Electricity (Maharashtra Amendment) Act, 1976 was engrafted on to the Electricity Act, 1910, the effect of which was to substitute market value of the undertaking that was compulsorily acquired, with the concept of an ?amount?, which was the book value of the undertaking at the time of its delivery. Even as per this Act, by virtue of the compulsory acquisition of the undertaking, the licensee was given a solatium of 10% of such book value. Importantly, this Court, after holding that nationalisation would come within the expression ?distribution? for the purposes of Article 39(b), engrafted another test when legislation claims the protection of Article 31-C. The Court held that the protection of Article 31-C is accorded only to those provisions which are basically and essentially necessary for giving effect to the objects of Article 39(b) – See paragraph 43. This case is again distinguishable for the same reason as pointed out qua State of Tamil Nadu v. L. Abu Kavur Bai (supra) as this is a nationalisation measure far removed from the object of the 1997 Amendment Act to the National Highways Act. It is interesting to note that despite the fact that a challenge under Articles 14 and 31 were bound to fail in view of the protective umbrella of Article 31-C, yet the Amendment Act had still provided for 10% solatium as the legislature had correctly appreciated that solatium is a part of compensation given for the compulsory nature of acquisition of property.Shri Divan then referred us to Tinsukhia Electric Supply Co. Ltd. vs State of Assam (1989) 3 SCC 709 , in which the Indian Electricity (Assam Amendment) Act, 1973 and the Tinsukhia and Dibrugarh Electric Supply Undertakings (Acquisition) Act, 1973 were challenged. These being nationalisation measures, this Court held that these enactments were entitled to the protection of Article 31-C. This nationalisation statute, again, is very far removed from the Amendment Act, 1997 to the National Highways Act.It is well-settled that in order that a law avail of the protection of Article 31-C, it is not necessary that any declaration be made in that behalf. (See State of Maharashtra vs Basantibai Mohanlal Khetan (1986) 2 SCC 516 at 530). It is also important to remember that in order that a law be shielded by Article 31-C, the said law must have a direct and rational nexus with the principles contained in Article 39(b). (See Assam Sillimanite Ltd. vs Union of India 1991 Supp 3 SCR 273 atWhen we examine the Objects and Reasons which led to the 1997 amendment of the National Highways Act, we do not find mentioned therein any object relating to distribution of the material resources of the community. The object of the Amendment Act has no relationship whatsoever to the Directive Principle contained in Article 39(b), inasmuch as its limited object is to expedite the process of land acquisition by avoiding inordinate delays therein. The object of the Amendment Act was not to acquire land for the purpose of national highways as, pre-amendment, the Land Acquisition Act provided for this. The object of the Amendment Act was fulfilled by providing a scheme different from that contained in the Land Acquisition Act, making it clear that the stage of offer of an amount by way of compensation is removed altogether; vesting takes place as soon as the Section 3D notification is issued; and most importantly, the tardy Court process is replaced by arbitration. Obviously, these objects have no direct and rational nexus with the Directive Principle contained in Article 39(b). Article 31-C is, therefore, out of harm?stest of Article 31-C?s protection being accorded only to those provisions which are basically and essentially necessary for giving effect to the objects of Article 39(b) is lifted from Akadasi Padhan vs State of Orissa 1963 Supp. (2) SCR 691, where this Court held, with reference to Article 19(6), that qua laws passed creating a State monopoly, it is only those essential and basic provisions which are protected by the latter part of Article 19(6). This Court stated the testIn dealing with the question about the precise denotation of the clause ?a law relating to?, it is necessary to bear in mind that this clause occurs in Article 19(6) which is, in a sense, an exception to the main provision of Article 19(1)(g). Laws protected by Article 19(6) are regarded as valid even though they impinge upon the fundamental right guaranteed under Article 19(1)(g). That is the effect of the scheme contained in Article 19(1) read with Clauses (2) to (6) of the said Article. That being so, it would be unreasonable to place upon the relevant clause an unduly wide and liberal construction. ?A law relating to? a State monopoly cannot, in the context, include all the provisions contained in the said law whether they have direct relation with the creation of the monopoly or not. In our opinion, the said expression should be construed to mean the law relating to the monopoly in its absolutely essential features. If a law is passed creating a State monopoly, the Court should enquire what are the provisions of the said law which are basically and essentially necessary for creating the State monopoly. It is only those essential and basic provisions which are protected by the latter part of Article 19(6). If there are other provisions made by the Act which are subsidiary, incidental or helpful to the operation of the monopoly, they do not fall under the said part and their validity must be judged under the first part of Article 19(6). In other words, the effect of the amendment made in Article 19(6) is to protect the law relating to the creation of monopoly and that means that it is only the provisions of the law which are integrally and essentially connected with the creation of the monopoly that are protected. The rest of the provisions which may be incidental do not fall under the latter part of Article 19(6) and would inevitably have to satisfy the test of the first part of Article 19(6).? (at pageif the Amendment Act, 1997 be regarded as an Act to carry out the purposes of Article 39(b), the object of the Amendment Act is not served by removing solatium and interest from compensation to be awarded. It is obvious, therefore, that the grant of compensation without solatium and interest is not basically and essentially necessary to carry out the object of the Amendment Act, 1997, even if it is to be considered as an acquisition Act pure and simple, for the object of the said Amendment Act as we have seen is to obviate delays in the acquisition process of acquiring land for National Highways. On application of this test as well, it is clear that the grant of compensation without solatium and interest, not being basically and essentially necessary to carry out the object of the Amendment Act, would not receive the protective umbrella of Article 31-C and, therefore, any infraction of Article 14 can be inquired into by the22. Both, P. Vajravelu Mudaliar (supra) and Nagpur Improvement Trust (supra) clinch the issue in favour of the Respondents, as has been correctly held by the Punjab and Haryana High Court in M/s Golden Iron and Steel Forging (supra). First and foremost, it is important to note that, as has been seen hereinabove, the object of the 1997 Amendment was to speed up the process of acquiring lands for National Highways. This object has been achieved in the manner set out hereinabove. It will be noticed that the awarding of solatium and interest has nothing to do with achieving this object, as it is nobody?s case that land acquisition for the purpose of national highways slows down as a result of award of solatium and interest. Thus, a classification made between different sets of landowners whose lands happen to be acquired for the purpose of National Highways and landowners whose lands are acquired for other public purposes has no rational relation to the object sought to be achieved by the Amendment Act, i.e. speedy acquisition of lands for the purpose of National Highways. On this ground alone, the Amendment Act falls foul of Article 14.Even otherwise, in P. Vajravelu Mudaliar (supra), despite the fact that the object of the Amendment Act was to acquire lands for housing schemes at a low price, yet the Amendment Act was struck down when it provided for solatium at the rate of 5% instead of 15%, that was provided in the Land Acquisition Act, the Court holding that whether adjacent lands of the same quality and value are acquired for a housing scheme or some other public purpose such as a hospital is a differentiation between two sets of landowners having no reasonable relation to the object sought to be achieved. More pertinently, another example is given – out of two adjacent plots belonging to the same individual one may be acquired under the principal Act for a particular public purpose and one acquired under the Amending Act for a housing scheme, which, when looked at from the point of view of the landowner, would be discriminatory, having no rational relation to the object sought to be achieved, which is compulsory acquisition of property for public purposes.Nagpur Improvement Trust (supra) has clearly held that ordinarily a classification based on public purpose is not permissible under Article 14 for the purpose of determining compensation. Also, in para 30, the Seven-Judge Bench unequivocally states that it is immaterial whether it is one Acquisition Act or another Acquisition Act under which the land is acquired, as, if the existence of these two Acts would enable the State to give one owner different treatment from another who is similarly situated, Article 14 would be infracted. In the facts of these cases, it is clear that from the point of view of the landowner it is immaterial that his land is acquired under the National Highways Act and not the Land Acquisition Act, as solatium cannot be denied on account of this fact alone.A contention was taken by Shri Divan in that Article 31-A second proviso would make it clear that compensation at a rate which shall not be less than the market value would be payable only in the circumstances mentioned therein and not otherwise. For this reason, the Nagpur Improvement Trust case is distinguishable, as one of the instances given therein is that it would not be possible to discriminate between landowners who are similarly situate by giving one landowner compensation at let us say 60% of the market value and the other owner 100% of the market value.The Nagpur Improvement Trust case has to be read as a whole. Merely emphasising one example from the passages that have been extracted above (supra) will not make the ratio of the said judgment inapplicable. Besides, the second proviso to Article 31-A deals with persons whose lands are acquired when such person is cultivating the same personally. The reason for awarding compensation at a rate which is not less than market value is in order that a farmer, who is cultivating the land personally, gets other land of equivalent value, which he can then cultivate personally. As such farmer is at the centre of agrarian reform legislation, such legislation would be turned on its head if lands were to be acquired without adequately compensating him instead of from absentee landlords whose lands are then to be given to the landless and to such persons if they personally cultivate lands less than the ceiling area under State Agricultural Ceiling Acts. We think that any reference to the second proviso of Article 31-A is wholly irrelevant to the question before us and cannot under any circumstance be used in order to distinguish a judgment which otherwise applies on all fours.However, it was argued that a line of judgments have distinguished P. Vajravelu Mudaliar (supra) and Nagpur Improvement Trust (supra) and that this line of judgments should be followed in preference to the aforesaid two judgments.For our purposes, it is enough to state that the line of judgments under the 1952 Act and the Defence of India Act, 1971, which contained a two-step process, namely, requisition which may be followed by acquisition, are wholly distinguishable for the reasons stated in those judgments. As was stated in Chajju Ram (supra), the object of a Requisition Act is completely different from an Acquisition Act. In a Requisition Act, private property is taken for public purposes only temporarily – when the reason for requisition ends, ordinarily the property is handed back to the owner. This being the case, in requisition statutes handing back of the property is the rule and acquisition of the property the exception, as property can only be acquired for the two reasons set out in Section 7 of the 1952 Act and Section 30 of the Defence of India Act, 1971. Also, as has been pointed out in Hari Krishnan Khosla (supra), what gets acquired is only rights as to ownership, possession having been taken over by requisition. In addition, the owner has already received compensation for remaining out of possession during the period when the property is under requisition. For all these reasons, the aforesaid judgments are wholly distinguishable from the acquisition measure in thisAmit Sibal, learned Senior Advocate, on the other hand, has argued, referring to Sections 3(b), 9 and 31(1) of the Land Acquisition Act that easementary rights are compensated even under the Land Acquisition Act and in point of fact the sum of 10% payable under Section 3G(2) of the National Highways Act is really in the nature of a cap beyond which no further compensation can be granted. Even otherwise, according to the learned Senior Advocate, granting of compensation under Section 3G(2) would have no bearing on interest and solatium that is payable under the Land Acquisition Act and not under the National Highways Act.Section 3G(2) makes it clear that rights of user and rights in the nature of easement being valuable property rights, compensation must be payable therefor. It is obvious that there is no double payment to the owner on this score as the owner and/or any other person has to prove that a right in the nature of an easement has also been taken away. Obviously, the right of user being subsumed in acquisition of ownership, the owner cannot get a double benefit on this score. The right of user is, therefore, referable only to persons other than the owner, who may have tenancy rights, and other rights of license on land which is acquired under the National Highwaysreading of these Sections shows that a person who is interested in an easement affecting land can claim compensation therefor under the aforesaid provisions of the Land Acquisition Act. Under both the Land Acquisition Act and the National Highways Act, such claims have to be proved in accordance with law, the difference being that under the Land Acquisition Act actuals are payable, whereas under the National Highways Act, a fixed amount of 10% of the amount determined by the competent authority is payable. It is, therefore, wholly incorrect to state that extra amounts are payable to the owner under the National Highways Act, which are not so payable under the Land Acquisition Act. Also, both Acts contemplate payment of compensation to persons whose easementary rights have been affected by the acquisition. In any event, this contention cannot possibly answer non-payment of solatium and interest under the National Highways Act, which has been dealt with in extenso in thisis thus clear that the Ordinance as well as the notification have applied the principle contained in Nagpur Improvement Trust (supra), as the Central Government has considered it necessary to extend the benefits available to landowners generally under the 2013 Act to similarly placed landowners whose lands are acquired under the 13 enactments specified in the Fourth Schedule, the National Highways Act being one of the aforesaid enactments. This being the case, it is clear that the Government has itself accepted that the principle of Nagpur Improvement Trust (supra) would apply to acquisitions which take place under the National Highways Act, and that solatium and interest would be payable under the 2013 Act to persons whose lands are acquired for the purpose of National Highways as they are similarly placed to those landowners whose lands have been acquired for other public purposes under the 2013 Act. This being the case, it is clear that even the Government is of the view that it is not possible to discriminate between landowners covered by the 2013 Act and landowners covered by the National Highways Act, when it comes to compensation to be paid for lands acquired under either of the enactments. The judgments delivered under the 1952 Act as well as the Defence of India Act, 1971, may, therefore, require a re-look in the light of this development. (The Defence of India Act, 1971, was a temporary statute which remained in force only during the period of operation of a proclamation of emergency and for a period of six months thereafter – vide Section 1(3) of the Act. As this Act has since expired, it is not included in the Fourth Schedule of the 2013 Act.) In any case, as has been pointed out hereinabove, the case of Chajju Ram (supra), has been referred to a larger Bench. In this view of the matter, we are of the view that the view of the Punjab and Haryana High Court is correct, whereas the view of the Rajasthan High Court is not correct.We were also referred to the judgment of a learned Single Judge of the Karnataka High Court reported as Lalita vs Union of India AIR 2003 Karnataka 165, as well as a judgment of the Division Bench of the Madras High Court in T. Chakrapani vs Union of India, both of which distinguished the Requisition Act cases and relied upon Nagpur Improvement Trust (supra) in order to reach the same conclusion as the Punjab and Haryana High Court. Both these judgments are also correct.There is no doubt that the learned Solicitor General, in the aforesaid two orders, has conceded the issue raised in these cases. This assumes importance in view of the plea of Shri Divan that the impugned judgments should be set aside on the ground that when the arbitral awards did not provide for solatium or interest, no Section 34 petition having been filed by the landowners on this score, the Division Bench judgments that are impugned before us ought not to have allowed solatium and/or interest. Ordinarily, we would have acceded to this plea, but given the fact that the Government itself is of the view that solatium and interest should be granted even in cases that arise between 1997 and 2015, in the interest of justice we decline to interfere with such orders, given our discretionary jurisdiction under Article 136 of the Constitution of India. We therefore declare that the provisions of the Land Acquisition Act relating to solatium and interest contained in Section 23(1A) and (2) and interest payable in terms of section 28 proviso will apply to acquisitions made under the National Highways Act. Consequently, the provision of Section 3J is, to this extent, violative of Article 14 of the Constitution of India and, therefore, declared to be unconstitutional. Accordingly, Appeal @ SLP (C) No. 9599/2019 is dismissed. | 0 | 19,082 | 4,635 | ### Instruction:
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of the 2013 Act.) In any case, as has been pointed out hereinabove, the case of Chajju Ram (supra), has been referred to a larger Bench. In this view of the matter, we are of the view that the view of the Punjab and Haryana High Court is correct, whereas the view of the Rajasthan High Court is not correct. 39. We were also referred to the judgment of a learned Single Judge of the Karnataka High Court reported as Lalita vs Union of India AIR 2003 Karnataka 165, as well as a judgment of the Division Bench of the Madras High Court in T. Chakrapani vs Union of India, both of which distinguished the Requisition Act cases and relied upon Nagpur Improvement Trust (supra) in order to reach the same conclusion as the Punjab and Haryana High Court. Both these judgments are also correct. 40. One more argument was raised by learned counsel appearing on behalf of the Respondents, which is that nothing survives in these mattes in view of orders passed by this Court in Union of India v. T. Chakrapani – the Division Bench judgment of the Madras High Court having come before this Court. This order is quoted by us in full :?In view of the statement made by Shri Ranjit Kumar, learned Solicitor General of India on an earlier date of the hearing that solatium in terms of the impugned order of the High Court would be granted for the instant acquisitions made under the provisions of the National Highways Act, 1956, no subsisting issue remains in the present appeals as also in the special leave petition. The appeals as also the special leave petition are accordingly closed. The respondents – writ petitioners be paid solatium as due in terms of the impugned order(s) along with interest thereon.?We were also referred to an order in Sunita Mehra v. Union of India (2016) SCC OnLine 1128, in which this Court held :"6. The only point agitated before us by the learned Solicitor General is that in paragraph 23 of the impugned judgment of the High Court, it has been held that land- owners would ?henceforth? be entitled to solatium and interest as envisaged by the provisions of Sections 23 and 28 of the Land Acquisition Act, 1894. In the ultimate paragraph of the impugned judgment it has, however, been mentioned that in respect of all acquisitions made under the National Highways Act, 1956, solatium and interest in terms similar to those contained in Sections 23(2) and 28 of the Land Acquisition Act, 1894 will have to be paid. 7. Learned Solicitor General has pointed out that there is an apparent inconsistency in the judgment, which needs to be clarified. It has also been submitted by the learned Solicitor General that the order of the High Court should be clarified to mean that the issue of grant of interest and solatium should not be allowed to be reopened without any restriction or reference to time. Learned Solicitor General has particularly submitted that to understand the order of the High Court in any other manner would not only seriously burden the public exchequer but would also amount to overlooking the delay that may have occurred on the part of the land- owner(s) in approaching the Court and may open floodgates for en masse litigation on the issue. 8. We have considered the submissions advanced. In Gurpreet Singh v. Union of India, (2006) 8 SCC 457 , this Court, though in a different context, had restricted the operation of the judgment of this Court in Sunder v. Union of India, (2001) 7 SCC 211 and had granted the benefit of interest on solatium only in respect of pending proceedings. We are of the view that a similar course should be adopted in the present case also. Accordingly, it is directed that the award of solatium and interest on solatium should be made effective only to proceedings pending on the date of the High Court order in Golden Iron & Steel Forgins v. Union of India i.e. 28.03.2008. Concluded cases should not be opened. As for future proceedings, the position would be covered by the provisions of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (came into force on 01.01.2014), which Act has been made applicable to acquisitions under the National Highways Act, 1956 by virtue of notification/order issued under the provisions of the Act of 2013.?41. There is no doubt that the learned Solicitor General, in the aforesaid two orders, has conceded the issue raised in these cases. This assumes importance in view of the plea of Shri Divan that the impugned judgments should be set aside on the ground that when the arbitral awards did not provide for solatium or interest, no Section 34 petition having been filed by the landowners on this score, the Division Bench judgments that are impugned before us ought not to have allowed solatium and/or interest. Ordinarily, we would have acceded to this plea, but given the fact that the Government itself is of the view that solatium and interest should be granted even in cases that arise between 1997 and 2015, in the interest of justice we decline to interfere with such orders, given our discretionary jurisdiction under Article 136 of the Constitution of India. We therefore declare that the provisions of the Land Acquisition Act relating to solatium and interest contained in Section 23(1A) and (2) and interest payable in terms of section 28 proviso will apply to acquisitions made under the National Highways Act. Consequently, the provision of Section 3J is, to this extent, violative of Article 14 of the Constitution of India and, therefore, declared to be unconstitutional. Accordingly, Appeal @ SLP (C) No. 9599/2019 is dismissed. 42. Coming to the individual appeals in the case, Shri Mukul Rohatgi has raised essentially 11 grounds, which, according to him, require the Court?s attention. We will deal with each of these grounds seriatim hereinbelow:
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Acquisition Act that easementary rights are compensated even under the Land Acquisition Act and in point of fact the sum of 10% payable under Section 3G(2) of the National Highways Act is really in the nature of a cap beyond which no further compensation can be granted. Even otherwise, according to the learned Senior Advocate, granting of compensation under Section 3G(2) would have no bearing on interest and solatium that is payable under the Land Acquisition Act and not under the National Highways Act.Section 3G(2) makes it clear that rights of user and rights in the nature of easement being valuable property rights, compensation must be payable therefor. It is obvious that there is no double payment to the owner on this score as the owner and/or any other person has to prove that a right in the nature of an easement has also been taken away. Obviously, the right of user being subsumed in acquisition of ownership, the owner cannot get a double benefit on this score. The right of user is, therefore, referable only to persons other than the owner, who may have tenancy rights, and other rights of license on land which is acquired under the National Highwaysreading of these Sections shows that a person who is interested in an easement affecting land can claim compensation therefor under the aforesaid provisions of the Land Acquisition Act. Under both the Land Acquisition Act and the National Highways Act, such claims have to be proved in accordance with law, the difference being that under the Land Acquisition Act actuals are payable, whereas under the National Highways Act, a fixed amount of 10% of the amount determined by the competent authority is payable. It is, therefore, wholly incorrect to state that extra amounts are payable to the owner under the National Highways Act, which are not so payable under the Land Acquisition Act. Also, both Acts contemplate payment of compensation to persons whose easementary rights have been affected by the acquisition. In any event, this contention cannot possibly answer non-payment of solatium and interest under the National Highways Act, which has been dealt with in extenso in thisis thus clear that the Ordinance as well as the notification have applied the principle contained in Nagpur Improvement Trust (supra), as the Central Government has considered it necessary to extend the benefits available to landowners generally under the 2013 Act to similarly placed landowners whose lands are acquired under the 13 enactments specified in the Fourth Schedule, the National Highways Act being one of the aforesaid enactments. This being the case, it is clear that the Government has itself accepted that the principle of Nagpur Improvement Trust (supra) would apply to acquisitions which take place under the National Highways Act, and that solatium and interest would be payable under the 2013 Act to persons whose lands are acquired for the purpose of National Highways as they are similarly placed to those landowners whose lands have been acquired for other public purposes under the 2013 Act. This being the case, it is clear that even the Government is of the view that it is not possible to discriminate between landowners covered by the 2013 Act and landowners covered by the National Highways Act, when it comes to compensation to be paid for lands acquired under either of the enactments. The judgments delivered under the 1952 Act as well as the Defence of India Act, 1971, may, therefore, require a re-look in the light of this development. (The Defence of India Act, 1971, was a temporary statute which remained in force only during the period of operation of a proclamation of emergency and for a period of six months thereafter – vide Section 1(3) of the Act. As this Act has since expired, it is not included in the Fourth Schedule of the 2013 Act.) In any case, as has been pointed out hereinabove, the case of Chajju Ram (supra), has been referred to a larger Bench. In this view of the matter, we are of the view that the view of the Punjab and Haryana High Court is correct, whereas the view of the Rajasthan High Court is not correct.We were also referred to the judgment of a learned Single Judge of the Karnataka High Court reported as Lalita vs Union of India AIR 2003 Karnataka 165, as well as a judgment of the Division Bench of the Madras High Court in T. Chakrapani vs Union of India, both of which distinguished the Requisition Act cases and relied upon Nagpur Improvement Trust (supra) in order to reach the same conclusion as the Punjab and Haryana High Court. Both these judgments are also correct.There is no doubt that the learned Solicitor General, in the aforesaid two orders, has conceded the issue raised in these cases. This assumes importance in view of the plea of Shri Divan that the impugned judgments should be set aside on the ground that when the arbitral awards did not provide for solatium or interest, no Section 34 petition having been filed by the landowners on this score, the Division Bench judgments that are impugned before us ought not to have allowed solatium and/or interest. Ordinarily, we would have acceded to this plea, but given the fact that the Government itself is of the view that solatium and interest should be granted even in cases that arise between 1997 and 2015, in the interest of justice we decline to interfere with such orders, given our discretionary jurisdiction under Article 136 of the Constitution of India. We therefore declare that the provisions of the Land Acquisition Act relating to solatium and interest contained in Section 23(1A) and (2) and interest payable in terms of section 28 proviso will apply to acquisitions made under the National Highways Act. Consequently, the provision of Section 3J is, to this extent, violative of Article 14 of the Constitution of India and, therefore, declared to be unconstitutional. Accordingly, Appeal @ SLP (C) No. 9599/2019 is dismissed.
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D. L. F. Housing Construction Private Limited Vs. Delhi Municipal Corporation and Others | had to be taken over on payment of a price determined on no-profit no-loss basis. (Reliance for this contention has been placed on Union of India v. Indo-Afghan Agencies ((1968) 2 SCR 366 : AIR 1968 SC 718 ) and Century Spinning Co. v. Municipal Council ((1970) 3 SCR 854 : (1970) 1 SCC 582 ).)(4) The obligation of the parties in this case were contractual and were governed by the agreements which were appendages to the sanctions. The sanction orders-cum-agreements did not create any fiduciary relationship between the promises and the promisee. There was no transfer, no divesting and no vesting in the obligation created by these agreements. There was only an agreed restriction in the matter of land use and this could not amount to the creation of a trust nor to an undertaking to transfer the land free of cost. Clause (6) of an agreement shows that there was no automatic vesting but that the transfer could be directed to be made on the payment of a price. This clause (6) is in the nature of an agreement to sell for a particular purpose at a concessional or at no-profit price.16. On the point that a contractual obligation is different from an obligation amounting to a trust, reference has been made to Chhatra Kumari v. Mohan Bikram (AIR 1931 PC 196 : 58 IA 279) and Rama Rao v. Venkataratnam (AIR 1947 PC 88 ).17. In any event in a trust there should be a settled, a trustee and a beneficiary. According to the High Court it could not be said as to who were the beneficiaries.(5) The impugned notice dated June 24, 1965 requiring the appellant to hand over free of cost the plots in question in N.D.S.E. I and II is invalid on the face of it, because -(a) Section 313(1)(b) of the Delhi Municipal Corporation Act, 1957, on the basis of which the automatic vesting of these plots, free of cost, in the municipal corporation is claimed, does not provide for such vesting. Section 313(1)(b) is concerned primarily with "streets" and has no application whatever to "open sites" reserved for public utility services such as schools, hospitals, etc.;(b) The sanction of the layout plans of the N.D.S.E. I and II was accorded in 1956 under Act 53 of 1955, when the Delhi Municipal Corporation Act, 1957 was not on the statute book.18. Mr. Rameshwar Dayal appearing for the municipal corporation, has at the outset raised an objection that none of the documents now relied upon by the appellant was produced in the High Court. He stoutly opposes the entertainment of these documents for the first time in appeal. These documents, the admission of which is objected to by Counsel, include an affidavit dated August 14, 1969 purporting to be from one R. K. Jain, Secretary to the coloniser company, and a copy of a letter dated April 24, 1956, purporting to be signed by one "G. L. Mittal for the Secretary of the Authority", conveying to the coloniser the sanction of the authority to the layout plan submitted by the appellants for New Delhi South Extension colony on the conditions contained in the draft agreement annexed thereto. These documents, particularly the sanction letter and the agreement annexed thereto, constitute the factual basis of contentions Nos. 1, 2, 3 and 4 canvassed by for the appellant. The municipal corporation disputes the authenticity of these documents.19. Thus in these proceeding under Article 226 the Court has been called upon to decide disputed questions of fact and law relating to the precise nature and extent of right, title and interest of the parties in the plots in question. Even the basic documentary evidence, such as the orders granting the sanctions, the conditions of the sanctions, and the agreements in which they are said to have been incorporated, were not produced before the pronouncement of judgment in the High Court. Even the questions of law relating to the validity and effect of Regulation 5 (3) could not be properly decided in the absence of proof or admission of such primary facts. The High Court also felt this difficulty in reaching the finding that a fiduciary relationship in the nature of a trust came into existence in regard to the user of these open sites. It conceded that this matter was being considered "in the abstract without reference to the facts of any case", and had to leave undetermined the exact nature of the trust that had come into being and the person or persons in whom the beneficial interest in these open sites was supposed to vest under such trust. Nevertheless, it concluded thatthe petitioners had by their own conduct and operation of law ceased to be the full and complete plots and held them only as trustees.This "conduct" of the petitioners according to the High Court consisted of the acts of making applications for sanction of the layout plans to the authority and the execution of the requisite agreements. But the evidence of those agreements and the terms and conditions of the sanctions were conspicuous by their absence from the record. Again in the absence of relevant material on the record, the high Court found it difficult to record a categorical finding as to whether the provisions of Regulation 5(3) (iv) were only optional and could be waived, or had in fact been waived by the authority while granting sanction of the layout plans in case of any of these six colonies in question.20. In our opinion, in a case where the basis facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course for the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. | 0[ds]19. Thus in these proceeding under Article 226 the Court has been called upon to decide disputed questions of fact and law relating to the precise nature and extent of right, title and interest of the parties in the plots in question. Even the basic documentary evidence, such as the orders granting the sanctions, the conditions of the sanctions, and the agreements in which they are said to have been incorporated, were not produced before the pronouncement of judgment in the High Court. Even the questions of law relating to the validity and effect of Regulation 5 (3) could not be properly decided in the absence of proof or admission of such primary facts. The High Court also felt this difficulty in reaching the finding that a fiduciary relationship in the nature of a trust came into existence in regard to the user of these open sites. It conceded that this matter was being considered "in the abstract without reference to the facts of any case", and had to leave undetermined the exact nature of the trust that had come into being and the person or persons in whom the beneficial interest in these open sites was supposed to vest under such trust. Nevertheless, it concluded thatthe petitioners had by their own conduct and operation of law ceased to be the full and complete plots and held them only as trustees.This "conduct" of the petitioners according to the High Court consisted of the acts of making applications for sanction of the layout plans to the authority and the execution of the requisite agreements. But the evidence of those agreements and the terms and conditions of the sanctions were conspicuous by their absence from the record. Again in the absence of relevant material on the record, the high Court found it difficult to record a categorical finding as to whether the provisions of Regulation 5(3) (iv) were only optional and could be waived, or had in fact been waived by the authority while granting sanction of the layout plans in case of any of these six colonies in question.20. In our opinion, in a case where the basis facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course for the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved. | 0 | 4,298 | 471 | ### 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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had to be taken over on payment of a price determined on no-profit no-loss basis. (Reliance for this contention has been placed on Union of India v. Indo-Afghan Agencies ((1968) 2 SCR 366 : AIR 1968 SC 718 ) and Century Spinning Co. v. Municipal Council ((1970) 3 SCR 854 : (1970) 1 SCC 582 ).)(4) The obligation of the parties in this case were contractual and were governed by the agreements which were appendages to the sanctions. The sanction orders-cum-agreements did not create any fiduciary relationship between the promises and the promisee. There was no transfer, no divesting and no vesting in the obligation created by these agreements. There was only an agreed restriction in the matter of land use and this could not amount to the creation of a trust nor to an undertaking to transfer the land free of cost. Clause (6) of an agreement shows that there was no automatic vesting but that the transfer could be directed to be made on the payment of a price. This clause (6) is in the nature of an agreement to sell for a particular purpose at a concessional or at no-profit price.16. On the point that a contractual obligation is different from an obligation amounting to a trust, reference has been made to Chhatra Kumari v. Mohan Bikram (AIR 1931 PC 196 : 58 IA 279) and Rama Rao v. Venkataratnam (AIR 1947 PC 88 ).17. In any event in a trust there should be a settled, a trustee and a beneficiary. According to the High Court it could not be said as to who were the beneficiaries.(5) The impugned notice dated June 24, 1965 requiring the appellant to hand over free of cost the plots in question in N.D.S.E. I and II is invalid on the face of it, because -(a) Section 313(1)(b) of the Delhi Municipal Corporation Act, 1957, on the basis of which the automatic vesting of these plots, free of cost, in the municipal corporation is claimed, does not provide for such vesting. Section 313(1)(b) is concerned primarily with "streets" and has no application whatever to "open sites" reserved for public utility services such as schools, hospitals, etc.;(b) The sanction of the layout plans of the N.D.S.E. I and II was accorded in 1956 under Act 53 of 1955, when the Delhi Municipal Corporation Act, 1957 was not on the statute book.18. Mr. Rameshwar Dayal appearing for the municipal corporation, has at the outset raised an objection that none of the documents now relied upon by the appellant was produced in the High Court. He stoutly opposes the entertainment of these documents for the first time in appeal. These documents, the admission of which is objected to by Counsel, include an affidavit dated August 14, 1969 purporting to be from one R. K. Jain, Secretary to the coloniser company, and a copy of a letter dated April 24, 1956, purporting to be signed by one "G. L. Mittal for the Secretary of the Authority", conveying to the coloniser the sanction of the authority to the layout plan submitted by the appellants for New Delhi South Extension colony on the conditions contained in the draft agreement annexed thereto. These documents, particularly the sanction letter and the agreement annexed thereto, constitute the factual basis of contentions Nos. 1, 2, 3 and 4 canvassed by for the appellant. The municipal corporation disputes the authenticity of these documents.19. Thus in these proceeding under Article 226 the Court has been called upon to decide disputed questions of fact and law relating to the precise nature and extent of right, title and interest of the parties in the plots in question. Even the basic documentary evidence, such as the orders granting the sanctions, the conditions of the sanctions, and the agreements in which they are said to have been incorporated, were not produced before the pronouncement of judgment in the High Court. Even the questions of law relating to the validity and effect of Regulation 5 (3) could not be properly decided in the absence of proof or admission of such primary facts. The High Court also felt this difficulty in reaching the finding that a fiduciary relationship in the nature of a trust came into existence in regard to the user of these open sites. It conceded that this matter was being considered "in the abstract without reference to the facts of any case", and had to leave undetermined the exact nature of the trust that had come into being and the person or persons in whom the beneficial interest in these open sites was supposed to vest under such trust. Nevertheless, it concluded thatthe petitioners had by their own conduct and operation of law ceased to be the full and complete plots and held them only as trustees.This "conduct" of the petitioners according to the High Court consisted of the acts of making applications for sanction of the layout plans to the authority and the execution of the requisite agreements. But the evidence of those agreements and the terms and conditions of the sanctions were conspicuous by their absence from the record. Again in the absence of relevant material on the record, the high Court found it difficult to record a categorical finding as to whether the provisions of Regulation 5(3) (iv) were only optional and could be waived, or had in fact been waived by the authority while granting sanction of the layout plans in case of any of these six colonies in question.20. In our opinion, in a case where the basis facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course for the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved.
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19. Thus in these proceeding under Article 226 the Court has been called upon to decide disputed questions of fact and law relating to the precise nature and extent of right, title and interest of the parties in the plots in question. Even the basic documentary evidence, such as the orders granting the sanctions, the conditions of the sanctions, and the agreements in which they are said to have been incorporated, were not produced before the pronouncement of judgment in the High Court. Even the questions of law relating to the validity and effect of Regulation 5 (3) could not be properly decided in the absence of proof or admission of such primary facts. The High Court also felt this difficulty in reaching the finding that a fiduciary relationship in the nature of a trust came into existence in regard to the user of these open sites. It conceded that this matter was being considered "in the abstract without reference to the facts of any case", and had to leave undetermined the exact nature of the trust that had come into being and the person or persons in whom the beneficial interest in these open sites was supposed to vest under such trust. Nevertheless, it concluded thatthe petitioners had by their own conduct and operation of law ceased to be the full and complete plots and held them only as trustees.This "conduct" of the petitioners according to the High Court consisted of the acts of making applications for sanction of the layout plans to the authority and the execution of the requisite agreements. But the evidence of those agreements and the terms and conditions of the sanctions were conspicuous by their absence from the record. Again in the absence of relevant material on the record, the high Court found it difficult to record a categorical finding as to whether the provisions of Regulation 5(3) (iv) were only optional and could be waived, or had in fact been waived by the authority while granting sanction of the layout plans in case of any of these six colonies in question.20. In our opinion, in a case where the basis facts are disputed, and complicated questions of law and fact depending on evidence are involved the writ court is not the proper forum for seeking relief. The right course for the High Court to follow was to dismiss the writ petition on this preliminary ground, without entering upon the merits of the case. In the absence of firm and adequate factual foundation, it was hazardous to embark upon a determination of the points involved.
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MANISH KUMAR Vs. UNION OF INDIA AND ANOTHER | of being understood in the manner done. 366. In regard to the first and the second provisos, they have only prospective operation. The creditors covered by these provisos, are not subjected to any time limit (except, no doubt, the bar under Article 137 of the Limitation Act), in the matter of garnering the requisite support. However, prescribing a time limit in regard to pending applications, cannot be, per se, described as arbitrary, as otherwise, it would be an endless and uncertain procedure. The applications would remain part of the docket and also become a Damocles Sword overhanging the debtor and the other stakeholders with deleterious consequences also qua the objects of the Code. 367. Finally, the actual time provided. Is it manifestly unfair? Would not six weeks, two months or even more lengthier periods, be more fair? Undoubtedly, it would be, from the point of view of the applicants. Another way to approach the problem is, was it impossible for the creditor/creditors to seek information, get into touch with the other creditors and persuade them to join him/them. As far as court fees is concerned, there is no extra liability as the amount remains the same, viz., Rs.25,000/-, irrespective of the number of applicants. If the condition in the third proviso was impossible to comply with, then, it would also be manifestly arbitrary. As far as availability of information is concerned, be it the mechanism of an Association of Allottees contemplated under the RERA or the requirement under the said Act to post details of the allotment, at least, in law, the Legislature was not making a capricious command. So also, is the case with the creditors covered by the first proviso, having regard to the clear requirement of Section 88 of the Companies Act, 2013. There are registers, which can be perused and information gathered. 368. Another aspect of the matter is, if there is insolvency and it affects creditors, ordinarily, self- interest would guide them into following the best course available to them. We have also seen the presence of plural remedies. No doubt, calculation of one-tenth in a case, may, undoubtedly, require the quantification of total number of creditors. This would be necessary, no doubt, only if hundred creditors cannot be found to support the application. 369. We have noted the consequences of the deemed withdrawal, the nature of the right, the Explanation to Section 7, the objects of the Code, the factual matrix reflecting a ten-fold increase in the applications, the pressure on the dockets of the bodies, which are charged with the imperative duty to deal with matters with the highest speed, the impact on similar stakeholders in the category and the sheer largeness of the class of creditors. The period could have been more fair to the petitioners by being longer but that is where we must bear in mind, the limits of our jurisdiction. Where would the Court draw the line? We find it difficult to hold that within the time limit of 30 days it is impossible to comply with the requirements. 370. We have dealt with the aspect relating to the impact of the statutory withdrawal of the application. Secondly, we must also bear in mind that the Code was enacted in the year 2016. The period of the retrospective operation, would appear to be, spread over for a period of two years and for the most part, it relates to a period of one year. We have already found that the withdrawal under the third proviso, will not stand in the way of the applicant, invoking the same default and filing the application and even the principle of Order XXIII Rule 1 of the CPC will not apply and will not bar such application. As far as limitation is concerned, we have explained as to what is to be the impact. The nature of the vested right and the impact of the law, the public interest, the sublime objects, which would be fulfilled, would, in the facts of this case, constrain us from interfering, even though, this Court may have a different view about the period of time, which is allowed to the applicant. 371. Lastly, there remains a question of court fees. As far as court fees is concerned, it is true that in the circumstances of the case, there is compelled withdrawal of the applications. The other side of the picture is, even, according to the petitioners, the applications engaged the Adjudicating Authority and time was spent on the applications. In the circumstances of these cases, we would resort to our power under Article 142 of the Constitution to order as follows. We would direct that in case applications are moved by the applicants, who are petitioner before us, in regard to the very same corporate debtor, in the same real estate project, as far as allottees are concerned, the applicants shall be exempted from the requirement of paying court fee. This would obviously be a one-time affair. We, however, further make it clear that exemption from paying court fee, in the case of joint applicants, will be limited only to once, to a single application in future, in relation to the same subject matter, as per the application. To make it clear, in a case where there are more than one applicants in the pending application in respect of real estate project, if they combine in future application, they would stand exempted. Secondly, in case, any of the applicants, if they were to move jointly with the requisite number under the second proviso, the exemption will be limited only to once. Meaning thereby, if exemption has been availed of by any one out of the joint applicants, in conjunction with others, then, the other joint applicants cannot claim exemption. If there are any applicants, falling under the first proviso, and who are among the petitioners, in regard to the same corporate debtor, they would also be entitled to the exemption from payment of the court fee. RELIEF | 1[ds]47. The grounds on which plenary law can be challenged are well established. In the first two decades decisions of this Court unerringly point to three grounds which render legislation vulnerable. A law can be successfully challenged if contrary to the division of powers, either the Parliament or the State Legislature usurps power that does not fall within its domain thus, rendering it incompetent to make such law. Secondly, a law made contravening Fundamental Rights guaranteed under Part III of the Constitution of India would be visited with unconstitutionality and declared void to the extent of its contravention. Needless to say, a law within the meaning of Article 19 of the Constitution would remain valid qua a non-citizen (see in this regard The State of Gujarat and others v. Shri Ambica Mills Ltd., Ahmedabad and Others (1974) 4 SCC 656 ). Thirdly, apart from Fundamental Rights, the supremacy of the Constitution vis-a-vis the ordinary legislation, even when the law is plenary legislation, is preserved with a view that legislation must be in conformity with the other provisions of the Constitution.49. The seed of this idea had a muted growth. It was in the decision of this Court in E.P. Royappa v. State of Tamil Nadu and Another (1974) 4 SCC 3 that this Court laid bare a new dimension in the majestic provisions of Article 14. This Court took the view that arbitrariness and fairness are sworn enemies. The guarantee of Article 14 is not confined in other words to it being a prohibition against equals being discriminated against or unequals being treated alike. State action must be fair and not arbitrary if it is to be pass muster in a court of law. It is essentially following the dicta laid down as aforesaid that this Court in the case of Shayara Bano v. Union of India (2017) 9 SCC 1 , wherein one of us (Justice Rohinton F. Nariman), speaking for the majority, held as follows:101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India [Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India, (1985) 1 SCC 641 : 1985 SCC (Tax) 121] stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.Such an argument is nothing but a thinly disguised attempt at questioning the law of the Legislature based on malice. A law is made by a body of elected representatives of the people. When they act in their legislative capacity, what is being rolled out is ordinary law. Should the same legislators sit to amend the Constitution, they would be acting as members of the Constituent Assembly. Whether it is ordinary legislation or an amendment to the Constitution, the activity is one of making the law. While malice may furnish a ground in an appropriate case to veto administrative action it is trite that malice does not furnish a ground to attack a plenary law [See in this regard K. Nagaraj and others v. State of Andhra Pradesh and another (1985) 1 SCC 523 and State of Himachal Pradesh v. Narain Singh (2009) 13 SCC 165 ].57. The three impugned provisos which we have already noted and which have been inserted vide the impugned amendment have been sandwitched in between the provisions of sub-section (1) and the explanation. Sub- section 2 of Section 7 provides that the financial creditor shall make the application which shall be in such manner and form and accompanied by such fee as may be prescribed.65. Section 8 read with Section 9 deal with application for initiation of the CIRP by an operational creditor. Section 10 deals with an application by the corporate applicant. The word Corporate applicant is defined to refer to the corporate debtor and other entities associated with it. More about it at a later stage. It is thereafter that law giver has in Section 11 proscribed applications which should otherwise be maintainable. This is a provision in which we will devote more time later on in this judgement. Section 12 places the time limit.66. Coming to sub-Section 2, the CIRP is to be completed within 180 days from the date of admission of the application to initiate the process. As far as an application by a financial creditor is concerned, the date of admission is the date of the order admitting the application. Under sub-Section (2) however if the Committee of creditors by a vote of 66 per cent of the voting share instructs the RP to extend the period of CIRP beyond 180 days, the RP is bound to file an application. The adjudicating authority on receipt of the application can extend the period of 180 days for a maximum period of 90 days. Such extension can be granted only once. With effect from 16.8.2019, two provisos have been inserted. The provisos were added in fact as noted in paragraph-74 of the Essar Steel(supra)to overcome what was laid down in (2019) 2 SCC 1 decided by this Court 04.10.2018. In the latter decision in Arcellormittal(supra), this Court purported to hold that the time taken in legal proceedings must be excluded. Under the first proviso, the CIRP has to be mandatorily completed within a period of 330 days from the insolvency commencement date. This period of 330 days is to include any extension granted under sub-Section (3) by the Adjudicating Authority and also the time taken in legal proceedings in relation to the resolution process of the corporate debtor. However, in Committee Creditors of Essar Steel (supra), this Court struck down the word mandatorily as being manifestly arbitrary and in violation of Article 19 (1)(g) and proceeded to hold as follows:…The effect of this declaration is that ordinarily the time taken in relation to the corporate resolution process of the corporate debtor must be completed within the outer limit of 330 days from the insolvency commencement date, including extensions and the time taken in legal proceedings. However, on the facts of a given case, if it can be shown to the Adjudicating Authority and/or Appellate Tribunal under the Code that only a short period is left for completion of the insolvency resolution process beyond 330 days, and that it would be in the interest of all stakeholders that the corporate 10-12- 2020 (Page 69 of 85) debtor be put back on its feet instead of being sent into liquidation and that the time taken in legal proceedings is largely due to factors owing to which the fault cannot be ascribed to the litigants before the Adjudicating Authority and/or Appellate Tribunal, the delay or a large part thereof being attributable to the tardy process of the Adjudicating Authority and/or the Appellate Tribunal itself, it may be open in such cases for the Adjudicating Authority and/or Appellate Tribunal to extend time beyond 330 days. Likewise, even under the newly added proviso to Section 12, if by reason of all the aforesaid factors the grace period of 90 days from the date of commencement of the Amending Act of 2019 is exceeded, there again a discretion can be exercised by the Adjudicating Authority and/or Appellate Tribunal to further extend time keeping the aforesaid parameters in mind. It is only in such exceptional cases that time can be extended, the general Rule being that 330 days is the outer limit within which resolution of the stressed assets of the corporate debtor must take place beyond which the corporate debtor is to be driven into liquidation.68. In this regard, it is to be noticed that the scheme appears to be that the name of the RP to act as the IRP is to be indicated in the application. While admitting the application under Section 7(5), the adjudicating authority is to appoint the proposed resolution professional. In fact, Section 16(2) of the Code contemplates such appointment. We may refer to Section 12A which was inserted with effect from 6.6.2018. Section 12A reads as follows:12A. Withdrawal of application admitted under section 7, 9 or 10. – The Adjudicating Authority may allow the withdrawal of application admitted under section 7 or section 9 or section 10, on an application made by the applicant with the approval of ninety per cent voting share of the committee of creditors, in such manner as may be specified.69. The above provision dealing with withdrawal of application after admission may be contrasted with Rule (8) which apparently deals with withdrawal before admission.70. Section 16 of the Code, however, indicates that the adjudicating authority shall appoint an interim resolution professional within 14 days from the insolvency commencement date. We have already noted the definition of the words insolvency commencement date as the date of admission. Section 13 contemplates steps to be taken upon admission under Section 7, inter alia.1.A moratorium contemplated under Section 14 is to be declared.2.A Public announcement of the initiation of the CIRP and inviting claims against the corporate debtor is to be made.3. The appointment of the IRP- the appointment is to be done in the manner as provided in Section 16. The announcement is to be made immediately after the appointment of resolution professional.72. It will be noticed that while Section 6 read with Section 7 contemplates that a financial creditor may move the application individually, he may also move the application jointly with other financial creditors. Even if a single financial creditor was to be the applicant, after the appointment of the interim resolution professional, the applicant ceases to be in seisin of the lis.73. Section 17 contemplates that the management of the affairs of the corporate debtor will vest with the IRP. This takes effect from the date of the appointment of the interim resolution professional. Furthermore, the powers of the Board of Directors who are partners of the corporate debtors shall stand suspended.74. Virtually, the entire control of the management including all the acts and authority indicated in sub-section 2 is to be carried out by interim resolution professional and authority exercised by him.96. A perusal of Section 88 reveals, on the one hand, that the provisions of the RERA, are in addition to and not in derogation of the provisions of any other law for the time being in force. At the same time, Section 89 provides that the RERA will prevail over any other inconsistent law. The result is that while all cognate laws, which are not inconsistent with RERA will continue to operate within their own sphere, the provisions, which are, however, inconsistent with RERA, will not survive after RERA has come into force.118. Therefore, a conspectus of the provisions would show that having regard to the legislative intention the term allottees as defined in Section 2(d) must be understood undoubtedly on its own terms predominantly. But at the same time the other provisions which form part of the Act and therefore the scheme must also be borne in mind. The Argument that the definition of allottee suffers from over inclusiveness and under inclusiveness needs to be considered. Under inclusiveness and over inclusiveness are aspects of the guarantee under Article 14. Equals must be treated equally. Unequals must not be treated equally. What constitutes reasonable classification must depend upon the facts of each case, the context provided by the statute, the existence of intelligible differentia which has led to the grouping of the persons or things as a class and the leaving out of those who do not share the intelligible differentia. No doubt it must bear rational nexus to the objects sought to be achieved.119. Coming to the definition of the word allottee it appears to be split up into three categories broadly, they are- plot, apartment and buildings. In the context of the impugned proviso, it must be remembered that if an applicant is able to garner a magical figure of 100 allottees, then he can present the application under Section 7 of the Code. This is for the reason that the further requirement of one-tenth of total number of allottees is meant to apply in a situation only if one- tenth of the total number of allottees is less than 100. This is for the reason that the word whichever has been used. No doubt in the context of one-tenth of the allottees, the greater the number of total number of allottees, the greater will be the number of one-tenth. In other words, if the total number of allottees is less, then, one-tenth of the total number will be less, and if in such circumstances, it is lesser than hundred, such number of allottees can make application under Section 7 under the impugned provisos. Therefore, in calculating the total number of allottees in one sense is a double-edged sword as the more is the numerator, the more will be the resultant figure required under the proviso.120. Be that as it may, as we have noticed the question must be decided with reference to real nature of the real estate project in which the applicant is an allottee. If it is in the case of an apartment, then necessarily all persons to whom allotment had been made would be treated as allottees for calculating the figure mentioned in the impugned proviso. The word allotment does mean allotment in the sense of documented booking as is mentioned in Section 11(1)(b) in regard to apartment or plot with which we are largely concerned. Such detail regarding the quarterly up-to- date list of the number and the types of apartments are to be uploaded as provided in Section 11. It is this information incidentally, which is the reservoir of data which the legislature intends that the allottees can use even though it is not necessarily confined to them. The allottee would also include a person who acquires the allotment either through sale, transfer or otherwise. The transferee of the allotment is contemplated. There can be no difficulty in including such assignee of the allotment as also the allottee for the purpose of complying with the threshold requirement under the impugned proviso. Thus, all allottees and all assignees of allotment would qualify both to be considered for the purpose of calculating the total number of allottees but confined to the particular real estate project and therefore for arriving at the figure of 100 allottees or one-tenth of the allottees as the case may be. Then, there is a third category, which is introduced by the expression sold (whether as leasehold or freehold or otherwise transferred by the Promoter). Here a question may arise, if the word sold is applied to the expression plot, then undoubtedly the transferee would be an allottee. If the sale is to the allottee in a real estate project which is a hybrid project consisting of development of land into plots and also development of buildings as is contemplated under Section 2(zk) then the transferee of the plot undoubtedly would be an allottee. He may have a complaint regarding the default by the promoter in the matter of development of the plot under hybrid project. As far as sale whether freehold or leasehold of an apartment or a building is concerned, once an apartment or building is sold, it presupposes that the construction of the building or the apartment is complete ordinarily. No doubt, he may also have complaints against the promoter which may be addressed under the RERA. For the purpose of the proviso in question, going by the definition, undoubtedly, such transferee of an apartment or building, is to be treated as an allottee. Let us take an example. A Promoter constructs several apartments. An apartment is defined so as to include flat. It can be residential or commercial. Assume that the Promoter has constructed and completed construction, five out of the fifteen floors (which constitutes the project), on the basis of the occupation certificate, as different from the completion certificate, as the latter certificate is given only on the completion of the project. He assigns and transfers the apartment to those allottees to whom he allotted the apartment when he has completed the construction. Such transferees would be allottees under the RERA. The question, however, may arise from the point of view of the impugned proviso as to what is the common feature between such an allottee to whom the constructed apartment is already handed over after sale and the allottee of the remaining floors where there is no construction or only construction which is pronouncedly lagging behind the schedule. The question may arise whether banding together such allottees under the definition clause make out the case of over inclusive classification. Are unequals being treated equally?121. A mere charge of either under inclusiveness or over inclusiveness which is not difficult to make hardly suffices to persuade the court to strike down a law. There is a wide latitude allowed in the legislature in these matters. The examination cannot be extended to find out whether there is mathematical precision or wooden equality established. The working of the statute may produce further issues, all of it may not be fully perceived as which may not be wholly foreseen by the law giver. The freedom to experiment must be conceded to the legislature, particularly, in economic laws. If problems emerge in the working of law and which require legislative intervention, the court cannot be oblivious to the power of the legislative to respond by stepping in with necessary amendment. There is nothing like a perfect law and as with all human institutions there are bound to be imperfections. What is significant is however for the court ruling on constitutionality, the law must present a clear departure from constitutional limits.123. We have noticed Section 11 (1) (b) of RERA. It contemplates details of booking qua apartments and plots. This is sufficient to reject the argument that it could be based on a total number of the units promised. What is required is allotment and not promised flats as per a brochure. It is also not the total constructed units. This is as what is relevant under the impugned provisos read with Section 5(8)(f) explanation and section 2 (d) of RERA read with Section 11(1)(b) and the rules made thereunder is the booking of apartments or plots. What is allotted or booked may be more than what is constructed if there is a mismatch at any given point of time. It is the number of units allotted. Now, the allotment and the agreement to sell are not irreconcilable with each other and may signify the same.124. The further contention that 10 percent is dynamic and what is 1/10 in the morning may fall short by night if more allotment is made, is untenable in law. The provisions of the Companies Act, 1913 (Section 153-C), Section 399 of the Companies Act, 1956 and Section 244 of the Companies Act, 2013 contain similar provisions. The mere difficulties in given cases, to comply with a law can hardly furnish a ground to strike it down. As to what would constitute the real estate project, it must depend on the terms & conditions and scope of a particular real estate project in which allottees are a part of. These are factual matters to be considered in the facts of each case.130. The Explanation makes it clear that a financial debt, which is owed to any other financial creditor of the corporate debtor would suffice to make an application on the basis that the default has occurred.131. Interpreting these provisions and the Rules as well, this Court in Innoventive (supra), held as follows:28. When it comes to a financial creditor triggering the process, Section 7 becomes relevant. Under the Explanation to Section 7(1), a default is in respect of a financial debt owed to any financial creditor of the corporate debtor — it need not be a debt owed to the applicant financial creditor. Under Section 7(2), an application is to be made under sub- section (1) in such form and manner as is prescribed, which takes us to the Insolvency and Bankruptcy (Application to Adjudicating Authority) Rules, 2016. Under Rule 4, the application is made by a financial creditor in Form 1 accompanied by documents and records required therein. Form 1 is a detailed form in 5 parts, which requires particulars of the applicant in Part I, particulars of the corporate debtor in Part II, particulars of the proposed interim resolution professional in Part III, particulars of the financial debt in Part IV and documents, records and evidence of default in Part V. Under Rule 4(3), the applicant is to dispatch a copy of the application filed with the adjudicating authority by registered post or speed post to the registered office of the corporate debtor. The speed, within which the adjudicating authority is to ascertain the existence of a default from the records of the information utility or on the basis of evidence furnished by the financial creditor, is important. This it must do within 14 days of the receipt of the application. It is at the stage of Section 7(5), where the adjudicating authority is to be satisfied that a default has occurred, that the corporate debtor is entitled to point out that a default has not occurred in the sense that the debt, which may also include a disputed claim, is not due. A debt may not be due if it is not payable in law or in fact. The moment the adjudicating authority is satisfied that a default has occurred, the application must be admitted unless it is incomplete, in which case it may give notice to the applicant to rectify the defect within 7 days of receipt of a notice from the adjudicating authority. Under sub-section (7), the adjudicating authority shall then communicate the order passed to the financial creditor and corporate debtor within 7 days of admission or rejection of such application, as the case may be.132. It is true that Section 238A (inserted with effect from 06.06.2018) of the Code provides that the provisions of the Limitation Act shall be applicable as far as may be to the proceedings or appeals before the Adjudicating Authority and the NCLAT, as the case may be, inter alia. Interpreting this provision, inter alia, this Court in B.K. Educational Services Private Limited (supra), has held that Article 137 in Schedule I of the Limitation Act, 1963, will apply in regard to an application under Sections 7 and 9 of the Code. This Court held, inter alia, as follows:42. It is thus clear that since the Limitation Act is applicable to applications filed under Sections 7 and 9 of the Code from the inception of the Code, Article 137 of the Limitation Act gets attracted. The right to sue, therefore, accrues when a default occurs. If the default has occurred over three years prior to the date of filing of the application, the application would be barred under Article 137 of the Limitation Act, save and except in those cases where, in the facts of the case, Section 5 of the Limitation Act may be applied to condone the delay in filing such application.133. In fact, the Court, in the said case, in the course of its judgment, gives an example of a debt which is due since 1990 and which has become barred but which is sought to be revived through the medium of Section 7 of the Code which law came into being in 2016. It is to avoid such situations that this Court noted that even if Section 238A was inserted after the original enactment, the Limitation Act, 1963, would, indeed apply, right from the inception of the Code. It is to be noticed that this Court has applied Article 137, and also, at the same time, countenanced the applicability of Section 5 of the Limitation Act, providing for condonation of delay in appropriate cases.134. It is, therefore, clear that the requirement of the Code in regard to an application by a financial creditor does not mandate that the financial debt is owed to the applicant in terms of the Explanation. This is for the reason that apparently that the CIRP and which, if unsuccessful, is followed by the liquidation procedure is in all a proceeding, in rem. The Law Giver has envisaged in the Code, an action, merely for setting in motion the process initially. The litmus test on the anvil of which, the Adjudicating Authority will scrutinize the matter, is only the existence of the default, as defined in Section 4 of the Code. As on date, the amount of default is pegged at Rs.1 crore. Present a financial debt which has not been paid, the doors are thrown open for the processes under the Code to flow in and overwhelm the corporate debtor. The further barrier is limitation, no doubt, as noticed in B.K. Educational Services Private Limited v. Parag Gupta & Associates (2019) 11 SCC 633. As with anything in life, not only will imperfections stand out and mathematical nicety be flouted, a law may end up seemingly trampling upon the interests of a few or even many. Since, the Code undoubtedly bears the brand of an economic measure upon its face, and in true spirit, being one of the most significant and dynamic economic experiments indulged in by the Law Giver, not by becoming servile to Parliament, but by way of time hallowed deference to the sovereign body experimenting in such matters, this Court will lean heavily in favour of such a law. The complaint of the petitioners that an increase in the required strength of applicants, will create legal knots which do not admit of solution, do not appeal to us and we intend lay bare how the law can indeed be worked, even with the extra burden which is cast on the persons covered by the provisos.135. It is indisputable that in order to successfully move an application under Section 7 that there must be a default which must be in a sum of Rs.1 crore. It is equally clear that the amount of Rs.1 crore need not be owed by the corporate debtor in favour of the applicant. It must be noted that the Explanation existed even prior to the provisos being inserted. It is open to a financial creditor, to move an application in the company of another financial creditor or more than one other financial creditor. In fact, a perusal of the Rules, which we have already extracted, would indicate that irrespective of the number of applicants the Court Fee would remain Rs. 25,000/-. This answers the alleged vagueness about court fees where the provisos are given effect to. Thus, dehors the impugned provisos in terms of the Explanation in sub-Section 7(1), a financial debt need not be owed to the applicant and as joint application by more than one applicant was and is contemplated, the resultant position would be that any number of applicants, without any amount being due to them, could move an application under Section 7, provided that they are financial creditors and there is a default in a sum of Rs.1 crore even if the said amount is owed to none of the applicants but to any another financial creditor. This position has not undergone any change even with the insertion of the provisos. In other words, even though the provisos require that in the case of a real estate project, being conducted by a corporate debtor, an application can be filed by either one hundred allottees or allottees constituting one-tenth of the allottees, whichever is less, if they are able to establish a default in regard to a financial creditor and it is not necessary that there must be default qua any of the applicants. We have taken an extreme example to illustrate how the Code can possibly be worked.136. In practice, it may be unlikely, however, that persons would come together as applicants under the Code, if they are real estate allottees, particularly knowing what the admission of application under Section 7 entails, and the destiny of an application which has reached the stage of compulsory winding up under Section 33. However, taking a more likely example, viz., of the corporate debtor operating in the real estate sector and an allottee moving an application upon there being amounts due to him, prior to the amendment, undoubtedly, a single allottee could set the ball in motion and all he had to satisfy is default to him or any other financial creditor. The change that is brought about is only that apart from establishing the factum of default, he must present the application endorsed by the requisite number introduced by the proviso. Since, default can be qua any of the applicants, and even a person, who is not an applicant, and the action is, one which is understood to be in rem, in that, the procedures, under the Code, would bind the entire set of stakeholders, including the whole of the allottees, we can see no merit in the contention of the petitioner based on the theory of default, rendering the provisions unworkable and arbitrary.137. In this regard, it is necessary to notice Form 1, in which, an application is to be maintained under Section 7 of the Code read with Rule 4 of the Rules. In the said Form, in Part IV, there are two columns. The first column is total amount of debt granted, dates of disbursement. Under the second column in Part IV, the applicant must show the amount claimed to be in default and the date on which the default occurred (the applicant is required to attach the workings for computation of the amount and days of default in tabular form). Part V deals with particulars of the financial debt (documents, records and evidence of default). The applicant is called upon to attach copy of record of default with information utility, if any. The applicant may attach list of any other document to prove the existence of the default, as can be seen from clause 8 of Part V.In the very first place, we must notice that as far as the workability of this provision in such a situation is looked at, it cannot be called into question, having regard to one aspect in particular. Even before the amendment, and what is more also, after the amendment, a joint application is permissible (though not mandated) in respect of all classes of financial creditors. This means, even in the case of any application filed by more than one applicant, if the requirements of the Code are otherwise fulfilled, there can be cases where the applicants can file a single application by giving the details which we have adverted to. Secondly, we must bear in mind again, that the application is contemplated to be an application in rem. One or more financial creditors activises the Code with reference to the threshold figure of Rs.1 crore, being in default. The Authority is alerted. He verifies this aspect, finding that the debt is established under Section 7(5), and further that it is not barred by limitation or if he invokes the power under Section 5 of the Limitation Act, to condone the delay [as contemplated in B.K. Educational Services Private Limited (supra)], the curtains are raised for the Code to be applied since the default in the sum may be owed to any financial creditor. It suffices that the said sum can be claimed as a sum in default in terms of the Explanation in Section 7(1). Undoubtedly, the record of default, as contemplated in the Code, which need not be the record of default with the information utility alone, has to be furnished. If the default is qua all the applicants, then also, as long as the statutory requirements regarding the amount, and it not being barred, are fulfilled, it will be open to the applicants to plead the same. Undoubtedly, if the debt, in a sum of Rs.1 crore, happens to be set up, which is barred, then, unless Section 5 of the Limitation Act is successfully invoked, the applicants would risk rejection of the application, which cannot be stated to be unfair as it is in accordance with law. What we are indicating is that in view of the special provision, contained in the Explanation to Section 7(1), the arguments appear to be farfetched. We must bear in mind that when we reasonably contemplate, a state of insolvency, while in law, the corporate debtor, being in default to a single financial creditor in a sum of Rs. 1 crore, is sufficient, it is highly unlikely that the corporate debtor would not be similarly financially in dire straits towards the other creditors (allottees). Another aspect, which is raised, is that in the example of a hundred allottees, if they have agreements, under which, the date of default is different, how is the application to be drafted and processed? What, if the debt is barred qua some of the applicants, whereas, it is not so in regard to the other applicants. Taking a cue from the Explanation to Section 7(1), all that would be required is, to plead the default, no doubt, in the sum of Rs. 1 crore, which is not barred as the cause of action. In other words, if a law contemplates that the default in a sum of Rs.1 crore can be towards any financial creditor, even if he is not an applicant, the fact that the debt is barred as against some of the financial creditors, who are applicants, whereas, the application by some others, or even one who have moved jointly, fulfill the requirement of default, both in terms of the sum and it not being barred, the application would still lie.139. We have referred to the definition of the word allotee in Section 2(d) of the RERA. In regard to a real estate project, all persons, who are treated as allottees, as per the definition of allottee would be entitled to be treated as allottees, for the purpose of Section 5(8)(f) (Explanation) and also, for the purpose of the impugned provisos. All that is required is that the allottees must relate to same real estate project. In other words, if a Promoter has a different real estate project, be it in relation to apartments, in the case an application under Section7, those would not be reckoned in computing one-tenth as well as the total allotments.140. The rationale behind, confining allottees to the same real estate project, is to promote the object of the Code. Once the threshold requirement can pass muster when tested in the anvil of a challenge based on Articles 14, 19 and 21, then, there is both logic and reason behind the legislative value judgment that the allottees, who must join the application under the impugned provisos, must be related to the same real estate project. The connection with the same real estate project is crucial to the determination of the critical mass, which Legislature has in mind, as a part of its scheme, to streamline the working of the Code. If it is to embrace the total number of allottees of all projects, which a Promoter of a real estate project, may be having, in one sense, it will make the task of the applicant himself, more cumbersome. It becomes a sword, which will cut both ways. This is for the reason that the complaints, relating to different projects, may be different. With regard to one project of a Promoter of real estate project, maybe, in the advanced stage, the allottees in a particular project, may not have much of a complaint. The complaint, in relation to yet another project, may be more serious. If the complaint in respect of the latter, attracts the attention of a critical mass of allottees, and the proposed applicant is part of that project in the said project, then, it may be easier for the allottees to fulfil the statutory mantra in the impugned provisos, with the junction of likeminded souls. If, on the other hand, the requirement was to make a search for allottees of different projects, as would be the case, if the entirety of the allottees, under different projects, were to be reckoned, the task would have been much more cumbersome. The requirement of the allottees, being drawn from the same project, stands to reason and also does not suffer from any constitutional blemish, as pointed out.There can be no doubt that the requirement of a threshold under the impugned proviso, in Section 7(1), must be fulfilled as on the date of the filing of the application. In this regard, we find support from an early judgment of this Court, which was rendered under Section 153-C of the Companies Act, 1913. Section 153-C is the predecessor to Sections 397 and 398 read with Section 399 of the Companies Act, 1956. Its most recent avatar is contained in Sections 241 and 242 of the Companies Act, 2013 read with Section 244. In fact, Section 399 (3) of the Companies Act, 1956, read as follows:399(3) Where any members of a company are entitled to make an application in virtue of sub-section (1), any one or more of them having obtained the consent in writing of the rest, may make the application on behalf and for the benefit of all of them.142. In the decision of this Court in Rajahmundry Electric Supply Corporation Ltd. v. A. Nageshwara Rao and others AIR 1956 SC 213 , the provision in question, viz., Section 153-C of Companies Act, 1913 dealt with the power of the Court to Act, when the Company acts in a prejudicial manner or oppresses any part of its members. It, inter alia, provided that no application could be made by any member, in the case of a company having a share capital unless the member has obtained consent, in writing, of not less than one hundred in number of the members of the company or not less than one-tenth in number of the members, whichever is less. There was also an alternate requirement, to which, resort could be made in regard to company, not having share capital. There was another mode of fulfilling the threshold requirement. In the facts of the said case, the number of the members of the company were 603. Sixty-five members consented to the application. The problem, however, arose as it was contended that 13 of the members who had consented, had, subsequent to the presentation of the application, withdrawn their consent. This Court went on to hold as follows:5 xxx xxx xxxWe have no hesitation in rejecting this contention. The validity of a petition must be judged on the facts as they were at the time of its presentation, and a petition which was valid when presented cannot, in the absence of a provision to that effect in the statute, cease to be maintainable by reason of events subsequent to its presentation. In our opinion, the withdrawal of consent by 13 of the members, even if true, cannot affect either the right of the applicant to proceed with the application or the jurisdiction of the court to dispose of it on its own merits.143. In the matter of presentation of an application under Section 7, if the threshold requirement, under the impugned provisos, stands fulfilled, the requirement of the law must be treated as fulfilled. The contention, relating to the ambiguity and consequent unworkability and the resultant arbitrariness, is clearly untenable and does not appeal to us. If an allottee is able to, in other words, satisfy the requirements, as on the date of the presentation, the requirement of the impugned law is fulfilled.It is vague. It is arbitrary. It is true that in the impugned proviso, introduced in Section 7(1), there is no indication as to how the number of allottees are to be reckoned in the case of more than one person. It will be of interest to note that in Section 14 of the RERA, the Promoter is forbidden from making any additions and alterations in the sanctioned plans, layout plans and specifications, the nature of the fixtures, fittings and amenities, which are agreed to be undertaken, without the consent of that person. Of course, minor additions or alterations, in circumstances provided in the proviso, can be carried out.145. Thereafter, Section 14(2)(ii) contemplates that any other alterations in the sanctioned plans, layout plans and specifications or the common area within the project, cannot be carried out except with the previous written consent of at least two-thirds of the allottees, other than the Promoter, who had agreed to take the apartments in such building. In this context, there is an Explanation. The Explanation purports to declare that if an allottee has taken more than one apartment or plot in his name or in the name of his association of individuals, bookings in its name or in the name of associated entities or related enterprises, are to be treated as a single allotment.146. Similarly, Section 15 of RERA interdicts transfer or assignment of his majority rights and liabilities to a third party, without obtaining the prior written consent of two-thirds of the allottees and also without the prior written approval of the Authority. A similar Explanation, as is found in Section 14, which we have already described, is to be found in Section 15. Such an Explanation is, however, not found in the definition of allottee in Section 2(d) of RERA. The object of the Explanation, both in Sections 14 and 15, is apparent. It is to avoid defeating the object, which would occur, if members of the same family, monopolises a project or associated and related concerns of a company, firm or association, corner the allotments. It is also possible that they may be hand-in-glove with the Promoter, which would result in defeating the rights of the other allottees, as the figure of two- thirds, would cease to represent the interest of the actual two-third majority, which is intended by the Legislature, be it in a matter or alterations or additions in the sanctioned plans or layout plans, etc., or in the matter of the Promoter getting out of the project in regard to his majority rights, by transfer or assignment. These Explanations are intended to hold the Promoter responsible to the sanctioned plans as also to prevent the Promoter from wriggling out of his majority rights, without a real majority, as would be represented by two-thirds of the separate allottees, agreeing to the same. We cannot read the Explanations in Sections 14 and 15 into the definition of allotee in Section 2(d), as, in Sections 14 and 15, a perusal of Explanations, makes it clear that they are enacted for the purpose of Sections 14 and 15, respectively. We would have to take the definition of the allottee from Section 2(d), as it is. Therefore, it does not matter whether a person has one or more allotments in his name or in the name of his family members. As long as there are independent allotments made to him or his family members, all of them would qualify as separate allottees and they would count both in the calculation of the total allotments, as also in reckoning the figure of hundred allottees or one-tenth of the allottees, whichever is less.147. As far as the situation projected about, there being no clarity regarding whether, if there is a joint allotment of an apartment to more than one person, is it to be taken as only one allottee or as many allottees as there are joint allottees, it would appear to us, on a proper understanding of the definition of the word allottee in Section 2(d) and the object, for which the requirement of hundred allottees or one-tenth has been put, and also, not being oblivious to Section 399(2) of the Companies Act, 1956, as also the Explanation in Section 244(1) of the Companies Act, 2013, in the case of a joint allotment of an apartment, plot or a building to more than one person, the allotment can only be treated as a single allotment. This for the reason that the object of the Statute, admittedly, is to ensure that there is a critical mass of persons (allottees), who agree that the time is ripe to invoke the Code and to submit to the inexorable processes under the Code, with all its attendant perils. The object of maintaining speed in the CIRP and also the balancing of interest of all the stakeholders, would be promoted by the view that as in the case of the Companies Acts, 1956 and 2013, that for the purpose of complying with the impugned provisos in Section 7(1), while the allottee can be of any of the categories, fulfilling the description of an allottee in Section 2(d) of RERA, as interpreted earlier by us joint allottees of a single apartment, will be treated as only one allottee. Any other view can lead to clear abuse and defeating of the object of the Code. If, for instance, a single apartment is taken in the name of hundred persons, a single allottee, who in turn comprise of relatives or family members or friends, can move an application, even though the position ante would be restored, which means that only the allottee qua one apartment, plot or building, is before the Authority and it would not really represent a critical mass of the allottees in the real estate project concerned. Therefore, we have no hesitation in rejecting the contentions of the petitioner on having made the said interpretation.150. We are called upon to pronounce on the constitutionality of the law. Having regard to the salutary object and the distinguishing features, which clearly distinguish the allottees and also the creditors falling in the first proviso from the other creditors, both financial and operational, we see no merit in the contention. It is another matter that we may entertain the belief that it would have been more wise on the part of the Legislature to have incorporated a safety valve to provide for situations where without complying with threshold requirement, a single allottee could move the application. In this regard, we should also bear in mind the scope of an application under Sections 397 and 398.151. The Central Government, having regard to the scheme of Companies Act, is intricately interconnected with the management of the companies. It had powers of investigation into the affairs of the companies under Section 235 and Section 237. The purport of Sections 397 and 398 include the conduct of the affairs of the company in any manner prejudicial to the public interest or also, no doubt, prejudicial to member or members. In such circumstances, clothing the Central Government with the power to waive the requirement and permitting the application to be presented by even a single member, is in sync with the scheme of the Companies Act. The role of the Central Government is different under the Code. In fact, the Central Government does not have any role, as such under the Code. It acts only through the designated Authorities under the Code. The Code is about insolvency resolution and on failure liquidation. The scheme of the Code is unique and its objects are vividly different from that of the Companies Act. Consequently, if the Legislature felt that threshold requirement representing a critical mass of allottees, alone would satisfy the requirement of a valid institution of an application under Section 7, it cannot be dubbed as either discriminatory or arbitrary.155. Thus, the procedure, under Order I Rule 8, is squarely made applicable to the proceedings under the Consumer Protection Act, in a situation, where, there are more than one consumer, having the same interest. It is true that the words same interest, has been understood in the light of the Explanation under Order 1 Rule 8 of the CPC and therefore, it is not necessary that all the numerous persons, within the meaning of the Consumer Protection Act or in a civil suit, need establish that they have the same cause of action. What is essential is that they have the same interest. Interpreting the words same interest, it is still further true that this Court, in Chairman, Tamil Nadu Housing Board v. T. N. Ganapathy (1990) 1 SCC 608 , has held that what is required is only community of interest. This was a case where a suit was filed by allottees of plots of low-income groups against the appellant-Housing Board seeking injunction from demanding and collecting any additional price and the suit was held maintainable under Order I Rule 8, even though separate demand notices were issued to each allottees.156. In appreciating this argument, it is important to not be oblivious to the scheme of the Code and to distinguish it from a civil suit laid invoking order I Rule 8 or the consumer complaint presented by one consumer, sharing the same interest with numerous others, again invoking Order I Rule 8. It is true that once Order I Rule 8 is made applicable, a single plaintiff or a consumer, in a civil suit or a consumer complaint respectively, can set the ball rolling. All the persons, having the same interest, are free to join in the proceedings. Irrespective of whether they join or not, a Decree or order, which is pronounced, will bind all the persons having the same interest. The procedure, under Order I Rule 8, if it had been made applicable in regard to an application by the allottee of a real estate project, would indeed have made it very easy for a single allottee to invoke Section 7 of the Code and it would also have countenanced the participation of the other allottees, should they wished to be made parties upon the publication of the Notice contemplated in Order I Rule 8(2).157. So far so good. Now, we will examine the other side of the story and that is the object of the Code and the scheme of the Code. Under the Code, once an application is moved and is admitted under Section 7, the stage is set for resolving the insolvency. The Resolution of the Insolvency may be attained by replacing the existing management. The Law Giver has contemplated last mile funding. It has, however, fixed a time limit, as contemplated in Section 12 of the Code, no doubt as explained by this Court. Once, the application is admitted under Section 7(5), initially, the Interim Resolution Profession (IRP) would supplant the very management by virtue of the suspension of the powers of the management, as contemplated in the Code. The IRP may or may not continue as the Resolution Professional (RP) but a RP is, undoubtedly, to be appointed under the scheme of the Code. The management passes into the hands of the RP. Thereafter, depending upon the receipt of the Resolution Plan and its acceptability to the Committee of Creditors and finally the approval by the Adjudicating Authority of the Resolution Plan, which is approved by the Committee of Creditors, depends the Resolution of the Insolvency. All of this is to be completed within a period of 330 days again subject to the limit not being mandatory as explained by this Court in Essar Steel(supra). Should this not happen, the Adjudicating Authority is obliged, under Section 33, to pass an Order for winding up of the Corporate Debtor. Section 53 provides for the priority in the matter of payment of the amounts which are collected by way of liquidation value. The allottees would rank as unsecured creditors. The inevitable conclusion is that unlike in an ordinary civil suit or in a consumer complaint, the drastic consequences, as the inexorable liquidation of the corporate debtor, contemplated under the Code, is the inevitable consequence, of the application reaching the stage of Section 33 of the Code. Liquidation could take place even earlier under Section 33(4). As to whether the procedure contemplated in Order I Rule 8 is suitable, more appropriate and even more fair, is a matter, entirely in the realm of legislative choice and policy. Having regard to the scheme of the Code, which we have detailed above, there cannot be scintilla of doubt that what the petitioners are seeking to persuade us to hold, is to make a foray into the forbidden territory of legislative value judgment. This is all the more so, when the dangers lurking behind full play to Order I Rule 8 being given appear to be fairly clear. We have, therefore, no hesitation in rejecting this contention, which no doubt, at first blush, may appear attractive. We only need add that invalidating a law made by a competent Legislature, on the basis of what the Court may be induced to conclude, as a better arrangement or a more wise and even fairer system, is constitutionally impermissible. If, the impugned provisions are otherwise not infirm, they must pass muster.158. Are the Amendments violative of the `Pioneer Judgment in Pioneer Urban Land and Infrastructure Ltd. and another v. Union of India and others (2019) 8 SCC 416 , certain amendments to the Code were challenged. The challenged provisions included the Explanation added to Section 5(8)(f).159. The challenge was made in a batch of Writ Petitions filed by a group of Real Estate Developers. This Court was invited to adjudicate upon the constitutionality on a wide range of grounds. It is important to cull out the findings rendered by the Court in the said decision as much reliance has been placed by the Petitioners on the decision:i. The Code is a Legislation which deals with economic matters and, therefore, the Legislature must be given free play in the joints;ii. The legislative judgment in economic choices must be given a certain degree of deference by the Courts;iii. The amendment by which the explanation was inserted in Section 5(8) was clarificatory in nature and allottees/home buyers were included in the main provision, i.e., Section 5(8)(f) from the inception of the Code;iv. The amending Act did not infringe Articles 14, 19(1)(g) read with Article 19(6) or 300A of the Constitution of India;v. RERA and the Code must be held to co-exist, and in the event of a clash, RERA must give way to the Code. The Code and RERA operate in completely different spheres.vi. Paragragraph-30 of the judgment in Pioneer Urban Land and Infrastructure Ltd.(supra) reads as follows:30. As a matter of fact, the Code and RERA operate in completely different spheres. The Code deals with a proceeding in rem in which the focus is the rehabilitation of the corporate debtor. This is to take place by replacing the management of the corporate debtor by means of a resolution plan which must be accepted by 66% of the Committee of Creditors, which is now put at the helm of affairs, in deciding the fate of the corporate debtor. Such resolution plan then puts the same or another management in the saddle, subject to the provisions of the Code, so that the corporate debtor may be pulled out of the woods and may continue as a going concern, thus benefitting all stakeholders involved. It is only as a last resort that winding up of the corporate debtor is resorted to, so that its assets may be liquidated and paid out in the manner provided by Section 53 of the Code. On the other hand, RERA protects the interests of the individual investor in real estate projects by requiring the promoter to strictly adhere to its provisions. The object of RERA is to see that real estate projects come to fruition within the stated period and to see that allottees of such projects are not left in the lurch and are finally able to realise their dream of a home, or be paid compensation if such dream is shattered, or at least get back monies that they had advanced towards the project with interest. At the same time, recalcitrant allottees are not to be tolerated, as they must also perform their part of the bargain, namely, to pay instalments as and when they become due and payable. Given the different spheres within which these two enactments operate, different parallel remedies are given to allottees under RERA to see that their flat/apartment is constructed and delivered to them in time, barring which compensation for the same and/or refund of amounts paid together with interest at the very least comes their way. If, however, the allottee wants that the corporate debtors management itself be removed and replaced, so that the corporate debtor can be rehabilitated, he may prefer a Section 7 application under the Code. That another parallel remedy is available is recognised by RERA itself in the proviso to Section 71(1), by which an allottee may continue with an application already filed before the Consumer Protection Fora, he being given the choice to withdraw such complaint and file an application before the adjudicating officer under RERA read with Section 88. In similar circumstances, this Court in Swaraj Infrastructure (P) Ltd. v. Kotak Mahindra Bank Ltd. [Swaraj Infrastructure (P) Ltd. v. Kotak Mahindra Bank Ltd., (2019) 3 SCC 620 : (2019) 2 SCC (Civ) 136] has held that the Debts Recovery Tribunal proceedings under the Recovery of Debts Due to Banks and Financial Institutions Act, 1993 and winding-up proceedings under the Companies Act, 1956 can carry on in parallel streams (see paras 21 and 22 therein).vii. It is apposite to advert to paragraph-41 in the nature of the contentions raised in this case. To quote:41. It is also important to remember that the Code is not meant to be a debt recovery mechanism (see para 28 of Swiss Ribbons [Swiss Ribbons (P) Ltd. v. Union of India, (2019) 4 SCC 17 ]). It is a proceeding in rem which, after being triggered, goes completely outside the control of the allottee who triggers it. Thus, any allottee/home buyer who prefers an application under Section 7 of the Code takes the risk of his flat/apartment not being completed in the near future, in the event of there being a breach on the part of the developer. Under the Code, he may never get a refund of the entire principal, let alone interest. This is because, the moment a petition is admitted under Section 7, the resolution professional must first advertise for and find a resolution plan by somebody, usually another developer, which has then to pass muster under the Code i.e. that it must be approved by at least 66% of the Committee of Creditors and must further go through challenges before NCLT and NCLAT before the new management can take over and either complete construction, or pay out or refund amounts. Depending on the kind of resolution plan that is approved, such home buyer/allottee may have to wait for a very long period for the successful completion of the project. He may never get his full money back together with interest in the event that no suitable resolution plan is forthcoming, in which case, winding up of the corporate debtor alone would ensue. On the other hand, if such allottee were to approach the Real Estate Regulatory Authority under RERA, it is more than likely that the project would be completed early by the persons mentioned therein, and/or full amount of refund and interest together with compensation and penalty, if any, would be awarded. Thus, given the bona fides of the allottee who moves an application under Section 7 of the Code, it is only such allottee who has completely lost faith in the management of the real estate developer who would come before NCLT under the Code hoping that some other developer takes over and completes the project, while always taking the risk that if no one were to come forward, corporate death must ensue and the allottee must then stand in line to receive whatever is given to him in winding up. Given the reasons of the Insolvency Committee Report, which show that experience of the real estate sector in this country has not been encouraging, in that huge amounts are advanced by ordinary people to finance housing projects which end up in massive delays on the part of the developer or even worse i.e. failure of the project itself, and given the state of facts which was existing at the time of the legislation, as adverted to by the Insolvency Committee Report, it is clear that any alleged discrimination has to meet the tests laid down in Ram Krishna Dalmia [Ram Krishna Dalmia v. S.R. Tendolkar, 1959 SCR 279 : AIR 1958 SC 538 ] , V.C. Shukla [V.C. Shukla v. State (Delhi Admn.), 1980 Supp SCC 249 : 1980 SCC (Cri) 849 ] , Shri Ambica Mills Ltd. [State of Gujarat v. Shri Ambica Mills Ltd., (1974) 4 SCC 656 : 1974 SCC (L&S) 381] , Venkateshwara Theatre [Venkateshwara Theatre v. State of A.P., (1993) 3 SCC 677 ] and Mardia Chemicals [Mardia Chemicals Ltd. v. Union of India, (2004) 4 SCC 311 ].viii. On the possibility of the Code being misused by a single allottee, we may notice the following:51. One other argument that is made on behalf of the counsel for the petitioners is that allottees of flats/apartments who do not want refunds, but who want their flats/apartments constructed so that they may occupy and live in their flats/apartments, will be jeopardised, as a single allottee who does not want the flat/apartments, but wants a refund of amounts paid for reasons best known to him, can trigger the Code and upset the construction and handing over of such flats/apartments to the vast bulk of allottees of a project who may be genuine buyers who wish to occupy such flats/apartments as roofs over their heads. Another facet of this argument is that the bulk of such persons will never be on the Committee of Creditors, as they may not be persons who trigger the Code at all. These arguments are met by the fact that all the allottees of the project in question can either join together under the Explanation to Section 7(1) of the Code, or file their own individual petitions after the Code gets triggered by a single allottee, stating that in addition to the construction of their flat/apartment, they are also entitled to compensation under RERA and/or under the general law, and would thus be persons who have a claim i.e. a right to remedy for breach of contract which gives rise to a right to compensation, whether or not such right is reduced to judgment, and would therefore be persons to whom a liability or obligation in respect of a claim is due. Such persons would, therefore, have a voice in the Committee of Creditors as to future plans for completion of the project, and compensation for late delivery of the flat/apartment. This contention, therefore, also has no legs to stand upon.ix. This Court also held that the erstwhile Management is free to offer a resolution plan in the event of an Application under Section 7, being admitted in favour of an allottee, subject, no doubt, to Section 29 (A) of the Code, which may be accepted.160. It is clear that impugned provisos do not set at nought the ruling of this Court in Pioneer (supra). In a challenge by real estate developers upholding the provisions in the manner done including the explanation in Section 5 (8)(f) and allaying the apprehension about abuse by individual allotees cannot detract from the law giver amending the very law on its understanding of the working of the Code at the instance of certain groups of applicants and impact it produces on the economy and the frustration of the sublime goals of the law.163. As far as allottees are concerned in regard to apartments and plots, Section 11(1)(b) of the RERA makes it mandatory for the promoter to make available information regarding the bookings. We have conflated bookings with allotments. We cannot proceed on the basis of the contention of the petitioners that the impugned provisos are unworkable and arbitrary on the basis that the court must take notice of the reality which is that the promoters do not make available information as required of them. The burden it is well settled to prove all facts to successfully challenge the statute is always on the petitioner. There cannot be a priori reasoning, and there is no burden on the state. If there is defiance of the law by promoters, the allottees are not helpless. They can always seek proper redress in the appropriate forum. No doubt, we also would observe that it becomes the duty of all the authorities to ensure that the promoters will stringently abide by their duties under the act. Section 11(1)(b) of the RERA speaks about information being made available regarding bookings which can be subsequently acquires the allotment through sale, transfer or otherwise. In Section 11(1)(b) there is reference to bookings. If the information is to be limited to the original booking then the information about assignment just mentioned may not be made available. In this regard we may notice the Haryana Real Estate Regulatory Authority, Gurugram (Quarterly Progress Report) Regulations 2018. Regulation 4 provides inter alia that the promoter shall upload on the webpage which he has to create for the project within 15 days from the expiry of each quarter, namely, the list of number and types of apartments/plots booked. Our attention has also been drawn to the format for Quarterly Progress Report to be submitted under Haryana Regulations. A perusal of the report would show that the promoter is obliged to submit the names of the allottees. Obviously, if there is change in the allotment the changed name should be reflected in the Report. This must undoubtedly be ensured by the authorities stringently. We also find merit in the contention of the Union that the Association of allottees has to be formed under the mandate of the law it is expected to play an important role. Information will certainly be forthcoming in regard to allotments upon the allottees becoming members of the Association as required. We cannot ignore the role of the association in the matter of becoming the transferee of the common areas, being clothed with the right of first refusal within the meaning of section 7 of the Act and also the right to complain otherwise under the Act. This aspect of the association of allottees is not a matter of mere trifle. The allottees cannot truly possess and enjoy their properties be it an apartment or building without their having right of common areas. The promoter is bound under Section 17 to transfer title to the common areas to the association. Section 19(9) of RERA makes it a duty on the part of the allottee to participate towards the formation of the association or cooperative society or the federation of the same. The possession of the common areas is also to be handed over to the association of the allottees. The law giver has therefore created a mechanism, namely, the association of allottees through which the allottees are expected to gather information about the status of the allotments including the names and addresses of the allottees. We cannot proceed on the basis in a case which involves a challenge to a statute that the information to be gathered under the statute will not be available on the basis that the statute will not be worked as contemplated by the law giver. Hence, we reject the contentions of the allottees.164. In regard to the debenture holders and security holders also we would see no merit in the contentions. There is a statutory mechanism, which is comprised in the provisions of the Companies act 2013, namely Section (88).165. Violation of Section 88 (1) is made punishable under Section 88 (3).166. There is no case established that the version of the Union about availability of information contained in the registers which can be perused is not correct. Again, the burden is on the petitioners and they have not discharged their burden.167. Both sides have placed reliance on a large number of decisions in relation to reasonable classification under Article 14 of the Constitution. Even in the first decade of the Republic, this Court has, in a large number of cases, settled the principles in regard to what constitutes hostile discrimination and what is reasonable classification. Since, we would be in the region of platitude, if we were to chronicle the principles laid down in each of those cases, we think it suffices to refer to some of the decisions of this Court alone.168. In Ameerunnissa Begum (supra), which involved the challenge to law made by the Nizam as Raj Pramukh of the former State of Hyderabad, we need notice the following:11. The nature and scope of the guarantee that is implied in the equal protection clause of the Constitution have been explained and discussed in more than one decision of this court and do not require repetition. It is well settled that a legislature which has to deal with diverse problems arising out of an infinite variety of human relations must, of necessity, have the power of making special laws to attain particulars objects; and for that purpose it must have large powers of selection or classification of persons and things upon which such laws are to operate. Mere differentiation or inequality of treatment does not per se amount to discrimination within the inhibition of the equal protection clause. To attract the operation of the clause it is necessary to show that the selection or differentiation is unreasonable arbitrary; that it does not rest on any rational basis having regard to the objects which the legislature has in view.169. In Nagpur Improvement Trust (supra), the petitioner before the High Court alleged discriminatory proceedings for acquiring his land under the Improvement Trust Act instead of the Land Acquisition Act. This Court while dismissing the appeal and affirming the view of the High Court that there was hostile discrimination proceeded to lay down as follows:26. It is now well-settled that the State can make a reasonable classification for the purpose of legislation. It is equally well-settled that the classification in order to be reasonable must satisfy two tests: (i) the classification must be founded on intelligible differentia and (ii) the differentia must have a rational relation with the object sought to be achieved by the legislation in question.In this connection it must be borne in mind that the object itself should be lawful. The object itself cannot be discriminatory, for otherwise, for instance, if the object is to discriminate against one section of the minority the discrimination cannot be justified on the ground that there is a reasonable classification because it has rational relation to the object sought to be achieved.xxx xxx xxx xxx28. It would not be disputed that different principles of compensation cannot be formulated for lands acquired on the basis that the owner is old or young, healthy or ill, tall or short, or whether the owner has inherited the property or built it with his own efforts, or whether the owner is politician or an advocate. Why is this sort of classification not sustainable? Because the object being to compulsorily acquire for a public purpose, the object is equally achieved whether the land belongs to one type of owner or another type.29. Can classification be made on the basis of the public purpose for the purpose of compensation for which land is acquired? In other words can the Legislature lay down different principles of compensation for lands acquired say for a hospital or a school or a Government building? Can the Legislature say that for a hospital land will be acquired at 50% of the market value, for a school at 60% of the value and for a Government building at 70% of the market value? All three objects are public purposes and as far as the owner is concerned it does not matter to him whether it is one public purpose or the other. Article 14 confers an individual right and in order to justify a classification there should be something which justifies a different treatment to this individual right. It seems to us that ordinarily a classification based on the public purpose is not permissible under Article 14 for the purpose of determining compensation. The position is different when the owner of the land himself is the recipient of benefits from an improvement scheme, and the benefit to him is taken into consideration in fixing compensation. Can classification be made on the basis of the authority acquiring the land? In other words can different principles of compensation be laid if the land is acquired for or by an Improvement Trust or Municipal Corporation or the Government? It seems to us that the answer is in the negative because as far as the owner is concerned it does not matter to him whether the land is acquired by one authority or the other.170. It is also correct that this decision has come to be relied upon by this Court recently in Union of India vs. Tarsem Singh (2019) 9 SCC 304. 172. In Triloki Nath Khosa(supra), this Court was called upon to pronounce on subordinate legislation which according to writ petitioners denied them the guarantee of Article 14. This Court held, inter-alia, as follows:18. This submission is erroneous in its formulation of a legal proposition governing onus of proof and it is unjustified in the charge that the record discloses no evidence to show the necessity of the new Rule. There is always a presumption in favour of the constitutionality of an enactment and the burden upon him who attacks it to show that there has been a clear transgression of the constitutional principles. [Ram Krishan Dalmia v. Justice S. R. Tendolkar AIR 1958 SC 538 : 1959 SCR 279 , 297(b): 1959 SCJ 147 ] A rule cannot be struck down as discriminatory on any a priori reasoning. That where a party seeks to impeach the validity of a rule made by a competent authority on the ground that the Rules offend Act. 14 the burden is on him to plead and prove the infirmity is too well established to need elaboration. The burden thus is on the respondents to set out facts necessary to sustain the plea of discrimination and to adduce cogent and convincing evidence to prove those facts for there is a presumption that every factor which is relevant or material has been taken into account in formulating the classification. [State of U. P. v. Kartar SinghAIR 1964 SC 1135 : (1964) 6 SCR 679 , 687 : (1964) 2 SCJ 666.] In G.D. Kelkar v. Chief Controller of Imports and Exports [AIR 1967 SC 839 : (1967) 2 SCR 29 , 34 : (1967) 2 SCJ 182] Subba Rao, C.J., speaking for the Court has cited three other decisions of the Court in support of the proposition that unless the classification is unjust on the face of it, the onus lies upon the party attacking the classification to show by pleading the necessary material before the Court that the said classification is unreasonable and violative of Article 16 of the Constitution.19.Thus, it is no part of the appellants burden to justify the classification or to establish its constitutionality. Discrimination is the essence of classification and does violence to the constitutional guarantee of equality only if it rests on an unreasonable basis.31. Classification, however, is fraught with the danger that it may produce artificial inequalities and therefore, the right to classify is hedged in with salient restraints; or else, the guarantee of equality will be submerged in class legislation masquerading as laws meant to govern well marked classes characterized by different and distinct attainments. Classification, therefore, must be truly founded on substantial differences which distinguish persons grouped together from those left out of the group and such differential attributes must bear a just and rational relation to the object sought to be achieved.32. Judicial scrutiny can therefore extend only to the consideration whether the classification rests on a reasonable basis and whether it bears nexus with the object in view. It cannot extend to embarking upon a nice or mathematical evaluation of the basis of classification, for were such an inquiry permisible it would be open to the Courts to substitute their own judgment for that of the legislature or the Rule-making authority on the need to classify or the desirability of achieving a particular object.173. Justice Krishna Iyer in his concurring judgement laid down inter-alia as follows:Mini-classifications based on micro- distinctions are false to our egalitarian faith and only substantial and straightforward classifications plainly promoting relevant goals can have constitutional validity. To overdo classification is to undo equality.178. In the Constitution Bench decision of this Court in Subramanian Swami vs. Director, CBI and ors. (2014) 8 SCC 682 the issue was the constitutional validity of Section 6A of the Delhi Special Police Establishment Act, 1946. Section 6A declared that the CBI shall not conduct any inquiry or investigation into any offence alleged to have been committed under the Prevention of Corruption Act 1988 except with the previous approval of the Central Government where the allegation was in relation to employees of the Central government of the level of Joint Secretary and above and also officers appointed by the Central Government in public sector corporations controlled by the Central Government. It is dealing with this challenge that this Court went on to hold after refering to the earlier case law including the judgment of this Court in the Special Courts case (supra) that it is well settled that the Courts do not substitute their views as to what the policy is. It held as follows:49. Where there is challenge to the constitutional validity of a law enacted by the legislature, the Court must keep in view that there is always a presumption of constitutionality of an enactment, and a clear transgression of constitutional principles must be shown. The fundamental nature and importance of the legislative process needs to be recognised by the Court and due regard and deference must be accorded to the legislative process. Where the legislation is sought to be challenged as being unconstitutional and violative of Article 14 of the Constitution, the Court must remind itself to the principles relating to the applicability of Article 14 in relation to invalidation of legislation. The two dimensions of Article 14 in its application to legislation and rendering legislation invalid are now well recognised and these are: (i) discrimination, based on an impermissible or invalid classification, and (ii) excessive delegation of powers; conferment of uncanalised and unguided powers on the executive, whether in the form of delegated legislation or by way of conferment of authority to pass administrative orders—if such conferment is without any guidance, control or checks, it is violative of Article 14 of the Constitution. The Court also needs to be mindful that a legislation does not become unconstitutional merely because there is another view or because another method may be considered to be as good or even more effective, like any issue of social, or even economic policy. It is well settled that the courts do not substitute their views on what the policy is.179. It was found that the classification made in Section 6A on the basis of status in Central Government service is not permissible under Article 14 of the Constitution. The Court posed the question as to whether there is sound differentiation between corrupt public servant based on their status. As noted, the provision was found to be unconstitutional.181. In 1960 1 SCR 39 / AIR 1959 SC 1124 , the petitioners challenged the constitutionality of the Sugar Export Promotion Act, 1958 apart from certain orders passed thereunder. The contention taken by the petitioners was that since the declared object of the Act was to earn foreign exchange, compelling only sugar manufacturers which manufactured by vacuum pan process to export sugar was discriminatory. They also pointed out that manufactures of commodities other than sugar were not compelled to export in the same manner and there was further discrimination. It was while repelling this contention that the Court laid down as follows:21. In our opinion, this argument is without substance. The power of Parliament to make laws in relation to foreign exchange is manifest. Entry No. 36 of the Union List specifically confers jurisdiction on Parliament to legislate in relation to foreign exchange. That Entry, if interpreted widely, would embrace within itself not only laws relating to the control of foreign exchange but also to its acquisition to better the economic stability of the country. The need for foreign exchange to finance the various development schemes was, very properly, not disputed. It is, thus, plain that the object of the Act is in the public interest. If we are to exist as a progressive nation, it is very necessary that we carve out a place for ourselves in the International market. The beginning has to be made, and many a time, it is at a great loss. That the Central Government has selected the sugar industry for an export programme does not mean that it cannot make a classification of the commodities, bearing in mind which commodity will have an easy market abroad for the purpose of earning foreign exchange. During the Suez crisis, sugar was exported in large quantities from this country, and earned 12.4 crores as foreign exchange. There is nothing on the record to show that export of other commodities was not also undertaken, though it was pointed out in arguments that manganese ore was also exported in a similar manner to earn foreign exchange. It is quite obvious that the Central Government cannot order the export of all and sundry manufactured commodities from the country, without being assured of a market in foreign countries. Necessarily, the Government can only embark upon an export policy in relation to those products, for which there is an easy and readily available market abroad. For this reason also, sugar produced by the vacuum pan process may have been selected, because such sugar is perhaps in demand abroad and not sugar produced by any other process. It must be realised that goods manufactured in our country have to stand heavy competition from goods produced abroad, and even this export can only be made at great sacrifice, and is made only to earn foreign exchange, which would not, otherwise, be available.182. In 1976 2 SCC 310 , this Court was dealing with the challenge to the judgment of the High Court by which it had upheld the challenge by the respondent to a rule which granted power to the appellant State to grant further exemption to the members of scheduled castes and scheduled tribes to pass the departmental test necessary for being considered for promotion. The learned ASG drew support from the following statement in the judgement by Justice K.K. Mathew:83. A classification is reasonable if it includes all persons who are similarly situated with respect to the purpose of the law. In other words, the classification must be founded on some reasonable ground which distinguishes persons who are grouped together and the ground of distinction must have rational relation to the object sought to be achieved by the rule or even the rules in question. It is a mistake to assume a priori that there can be no classification within a class, say, the lower division clerks. If there are intelligible differentia which separates a group within that class from the rest and that differentia have nexus with the object of classification, I see no objection to a further classification within the class. It is no doubt a paradox that though in one sense classification brings about inequality, it is promotive of equality if its object is to bring those who share a common characteristic under a class for differential treatment for sufficient and justifiable reasons. In this view, I have no doubt that the principle laid down in All India Station Masters and Assistant Station Masters Association v. General Manager, Central Railway [(1960) 2 SCR 311 : AIR 1960 SC 384 .] ; S.G. Jaisinghani v. Union of India and State of J&K. v. Triloki Nath Khosa [(1974) 1 SCR 771 : (1974) 1 SCC 19 : 1974 SCC (L&S) 49.] has no application here.183. In Indira Sawney v. Union of India 1992 Supp 3 SCC 217, this Court held, This merely sees goes to show that even among backward classes, there can be sub-classification on a reasonable basis.184. In State of West Bengal and ors. v. Rash Bihari Sarkar and ors. (1993) 1 SCC 479 , exemption was granted under Bengal Amusements Act, 1922 as amended in 1981 from Entertainment Tax for theatre groups which were bonafide and which performed not for monetary gain which tax exemption was not given to theatre groups which performed for monetary gains. Both were theatre groups. Noticing however, the distinction between the theatre groups, this Court went on to hold as follows:4. Equality means equality in similar circumstances between same class of persons for same purpose and objective. It cannot operate amongst unequals. Only likes can be treated alike. But even amongst likes the legislature or executive may classify on distinction which are real. A classification amongst groups performing shows for monetary gains and cultural activities cannot be said to be arbitrary. May be that both the groups carry out the legislative objective of promoting social and educational activities and, therefore, they are likes but the distinction between the two on monetary gains and otherwise is real and intelligible. So long the classification is reasonable it cannot be struck down as arbitrary. Likes can be treated differently for good and valid reasons. The State in treating the group performing theatrical shows for advancement of social and educational purpose, differently, on basis of profit- making from those formed exclusively for cultural activities cannot be said to have acted in violation of Article 14. | 1 | 101,192 | 16,208 | ### Instruction:
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of being understood in the manner done. 366. In regard to the first and the second provisos, they have only prospective operation. The creditors covered by these provisos, are not subjected to any time limit (except, no doubt, the bar under Article 137 of the Limitation Act), in the matter of garnering the requisite support. However, prescribing a time limit in regard to pending applications, cannot be, per se, described as arbitrary, as otherwise, it would be an endless and uncertain procedure. The applications would remain part of the docket and also become a Damocles Sword overhanging the debtor and the other stakeholders with deleterious consequences also qua the objects of the Code. 367. Finally, the actual time provided. Is it manifestly unfair? Would not six weeks, two months or even more lengthier periods, be more fair? Undoubtedly, it would be, from the point of view of the applicants. Another way to approach the problem is, was it impossible for the creditor/creditors to seek information, get into touch with the other creditors and persuade them to join him/them. As far as court fees is concerned, there is no extra liability as the amount remains the same, viz., Rs.25,000/-, irrespective of the number of applicants. If the condition in the third proviso was impossible to comply with, then, it would also be manifestly arbitrary. As far as availability of information is concerned, be it the mechanism of an Association of Allottees contemplated under the RERA or the requirement under the said Act to post details of the allotment, at least, in law, the Legislature was not making a capricious command. So also, is the case with the creditors covered by the first proviso, having regard to the clear requirement of Section 88 of the Companies Act, 2013. There are registers, which can be perused and information gathered. 368. Another aspect of the matter is, if there is insolvency and it affects creditors, ordinarily, self- interest would guide them into following the best course available to them. We have also seen the presence of plural remedies. No doubt, calculation of one-tenth in a case, may, undoubtedly, require the quantification of total number of creditors. This would be necessary, no doubt, only if hundred creditors cannot be found to support the application. 369. We have noted the consequences of the deemed withdrawal, the nature of the right, the Explanation to Section 7, the objects of the Code, the factual matrix reflecting a ten-fold increase in the applications, the pressure on the dockets of the bodies, which are charged with the imperative duty to deal with matters with the highest speed, the impact on similar stakeholders in the category and the sheer largeness of the class of creditors. The period could have been more fair to the petitioners by being longer but that is where we must bear in mind, the limits of our jurisdiction. Where would the Court draw the line? We find it difficult to hold that within the time limit of 30 days it is impossible to comply with the requirements. 370. We have dealt with the aspect relating to the impact of the statutory withdrawal of the application. Secondly, we must also bear in mind that the Code was enacted in the year 2016. The period of the retrospective operation, would appear to be, spread over for a period of two years and for the most part, it relates to a period of one year. We have already found that the withdrawal under the third proviso, will not stand in the way of the applicant, invoking the same default and filing the application and even the principle of Order XXIII Rule 1 of the CPC will not apply and will not bar such application. As far as limitation is concerned, we have explained as to what is to be the impact. The nature of the vested right and the impact of the law, the public interest, the sublime objects, which would be fulfilled, would, in the facts of this case, constrain us from interfering, even though, this Court may have a different view about the period of time, which is allowed to the applicant. 371. Lastly, there remains a question of court fees. As far as court fees is concerned, it is true that in the circumstances of the case, there is compelled withdrawal of the applications. The other side of the picture is, even, according to the petitioners, the applications engaged the Adjudicating Authority and time was spent on the applications. In the circumstances of these cases, we would resort to our power under Article 142 of the Constitution to order as follows. We would direct that in case applications are moved by the applicants, who are petitioner before us, in regard to the very same corporate debtor, in the same real estate project, as far as allottees are concerned, the applicants shall be exempted from the requirement of paying court fee. This would obviously be a one-time affair. We, however, further make it clear that exemption from paying court fee, in the case of joint applicants, will be limited only to once, to a single application in future, in relation to the same subject matter, as per the application. To make it clear, in a case where there are more than one applicants in the pending application in respect of real estate project, if they combine in future application, they would stand exempted. Secondly, in case, any of the applicants, if they were to move jointly with the requisite number under the second proviso, the exemption will be limited only to once. Meaning thereby, if exemption has been availed of by any one out of the joint applicants, in conjunction with others, then, the other joint applicants cannot claim exemption. If there are any applicants, falling under the first proviso, and who are among the petitioners, in regard to the same corporate debtor, they would also be entitled to the exemption from payment of the court fee. RELIEF
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manufactures of commodities other than sugar were not compelled to export in the same manner and there was further discrimination. It was while repelling this contention that the Court laid down as follows:21. In our opinion, this argument is without substance. The power of Parliament to make laws in relation to foreign exchange is manifest. Entry No. 36 of the Union List specifically confers jurisdiction on Parliament to legislate in relation to foreign exchange. That Entry, if interpreted widely, would embrace within itself not only laws relating to the control of foreign exchange but also to its acquisition to better the economic stability of the country. The need for foreign exchange to finance the various development schemes was, very properly, not disputed. It is, thus, plain that the object of the Act is in the public interest. If we are to exist as a progressive nation, it is very necessary that we carve out a place for ourselves in the International market. The beginning has to be made, and many a time, it is at a great loss. That the Central Government has selected the sugar industry for an export programme does not mean that it cannot make a classification of the commodities, bearing in mind which commodity will have an easy market abroad for the purpose of earning foreign exchange. During the Suez crisis, sugar was exported in large quantities from this country, and earned 12.4 crores as foreign exchange. There is nothing on the record to show that export of other commodities was not also undertaken, though it was pointed out in arguments that manganese ore was also exported in a similar manner to earn foreign exchange. It is quite obvious that the Central Government cannot order the export of all and sundry manufactured commodities from the country, without being assured of a market in foreign countries. Necessarily, the Government can only embark upon an export policy in relation to those products, for which there is an easy and readily available market abroad. For this reason also, sugar produced by the vacuum pan process may have been selected, because such sugar is perhaps in demand abroad and not sugar produced by any other process. It must be realised that goods manufactured in our country have to stand heavy competition from goods produced abroad, and even this export can only be made at great sacrifice, and is made only to earn foreign exchange, which would not, otherwise, be available.182. In 1976 2 SCC 310 , this Court was dealing with the challenge to the judgment of the High Court by which it had upheld the challenge by the respondent to a rule which granted power to the appellant State to grant further exemption to the members of scheduled castes and scheduled tribes to pass the departmental test necessary for being considered for promotion. The learned ASG drew support from the following statement in the judgement by Justice K.K. Mathew:83. A classification is reasonable if it includes all persons who are similarly situated with respect to the purpose of the law. In other words, the classification must be founded on some reasonable ground which distinguishes persons who are grouped together and the ground of distinction must have rational relation to the object sought to be achieved by the rule or even the rules in question. It is a mistake to assume a priori that there can be no classification within a class, say, the lower division clerks. If there are intelligible differentia which separates a group within that class from the rest and that differentia have nexus with the object of classification, I see no objection to a further classification within the class. It is no doubt a paradox that though in one sense classification brings about inequality, it is promotive of equality if its object is to bring those who share a common characteristic under a class for differential treatment for sufficient and justifiable reasons. In this view, I have no doubt that the principle laid down in All India Station Masters and Assistant Station Masters Association v. General Manager, Central Railway [(1960) 2 SCR 311 : AIR 1960 SC 384 .] ; S.G. Jaisinghani v. Union of India and State of J&K. v. Triloki Nath Khosa [(1974) 1 SCR 771 : (1974) 1 SCC 19 : 1974 SCC (L&S) 49.] has no application here.183. In Indira Sawney v. Union of India 1992 Supp 3 SCC 217, this Court held, This merely sees goes to show that even among backward classes, there can be sub-classification on a reasonable basis.184. In State of West Bengal and ors. v. Rash Bihari Sarkar and ors. (1993) 1 SCC 479 , exemption was granted under Bengal Amusements Act, 1922 as amended in 1981 from Entertainment Tax for theatre groups which were bonafide and which performed not for monetary gain which tax exemption was not given to theatre groups which performed for monetary gains. Both were theatre groups. Noticing however, the distinction between the theatre groups, this Court went on to hold as follows:4. Equality means equality in similar circumstances between same class of persons for same purpose and objective. It cannot operate amongst unequals. Only likes can be treated alike. But even amongst likes the legislature or executive may classify on distinction which are real. A classification amongst groups performing shows for monetary gains and cultural activities cannot be said to be arbitrary. May be that both the groups carry out the legislative objective of promoting social and educational activities and, therefore, they are likes but the distinction between the two on monetary gains and otherwise is real and intelligible. So long the classification is reasonable it cannot be struck down as arbitrary. Likes can be treated differently for good and valid reasons. The State in treating the group performing theatrical shows for advancement of social and educational purpose, differently, on basis of profit- making from those formed exclusively for cultural activities cannot be said to have acted in violation of Article 14.
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P. Ramasubbamma Vs. V. Vijayalakshmi & Ors | and 4 and even specific issues were framed, which on appreciation of evidence were held against defendant Nos. 2 to 4. Therefore, the High Court is not justified in quashing and setting aside the judgment and decree passed by the learned Trial Court declaring that sale deeds dated 03.05.2010 are not binding on defendant No. 1 and the plaintiff. 5.4 It is also required to be noted that on appreciation of evidence, the learned Trial Court has specifically given the finding that the alleged sale consideration paid by defendant Nos. 3 and 4 to original defendant No. 2 for executing sale deeds dated 03.05.2010 have not been established and proved by defendant Nos. 2 to 4. Therefore, there was a specific finding given by the learned Trial Court on appreciation of evidence that sale deeds dated 03.05.2010 were nominal sale deeds. The High Court has brushed aside the same on the ground that even in agreement to sell dated 12.04.2005, the amount was alleged to have been paid by cash. However, it is required to be noted that so far as receipt of substantial advance sale consideration mentioned in the agreement to sell dated 12.04.2005 has been specifically admitted by defendant No. 1. Therefore, when it was specifically alleged that defendant No. 2 executed sale deeds in favour of defendant Nos. 3 and 4, who are his sisters-in-law, with a view to defeat the rights of the plaintiff and defendant No. 1 and when it was alleged that they were nominal sale deeds, thereafter, defendant No. 2 was required to prove the receipt of sale consideration mentioned in the sale deeds dated 03.05.2010, which defendant Nos. 2 to 4 have failed to do so. 5.5 It is also required to be noted that on appreciation of evidence, learned Trial Court has specifically found that the stamp papers of agreement to sell dated 12.04.2005 was purchased in the name of defendant No. 2 and therefore defendant No. 2 was aware and in the knowledge of agreement to sell dated 12.04.2005. It is also required to be noted that even defendants did not reply to the legal notice served by the plaintiff, which was issued before filing the suit. 5.6 In light of the aforesaid factual aspects and the findings recorded by the learned Trial Court, the decision of this Court in the case of Lala Durga Prasad & Ors. (supra) is required to be referred to. In paragraph 42, it is observed and held as under: - 42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin [AIR 1931 Cal 67] and appears to be the English practice. See Fry on Specific Performance, 6th Edn., p. 90, para 207; also Potter v. Sanders [67 ER 1057]. We direct accordingly. The aforesaid decision has been subsequently referred to and followed by this Court in the subsequent decision in the case of Rathnavathi & Anr. (supra). 5.7 From the impugned judgment and order passed by the High Court, it appears that the High Court has heavily relied upon Section 34 of the Specific Relief Act. However, considering the fact that specific issues were framed with respect to sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 and the parties led the evidence also on the aforesaid issues and thereafter, when the learned Trial Court had given findings on the said issues and thereafter, had granted the declaration that the sale deeds executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 are not binding on defendant No. 1 and the plaintiff and those sale deeds are nominal sale deeds and that defendant Nos. 2 to 4 have failed to prove that agreement to sell dated 12.04.2005 is a created document and by virtue of the same no consideration has been paid, Section 34 of the Specific Relief Act, upon which the reliance has been placed by the High Court will have no application. 5.8 The High Court has set aside the judgment and decree passed by the learned Trial Court on the ground that the relief under Section 20 of the Specific Relief Act, is a discretionary relief and therefore, in view of the fact that original defendant No. 2 had executed sale deeds in favour of defendant Nos. 3 and 4, the learned Trial Court ought not to have exercised discretion in favour of the plaintiff for passing the decree for specific performance. However, in the facts and circumstances of the case narrated hereinabove and when the learned Trial Court specifically gave the findings that defendant No. 1 – vendor specifically admitted the execution of agreement to sell dated 12.04.2005 in favour of the plaintiff by accepting a substantial advance consideration and that defendant No. 2 was in the knowledge of the agreement to sell and despite the same, he sold the same in favour of defendant Nos. 3 and 4, who are his sisters-in-law and that too the sale deeds found to be nominal sale deeds, the learned Trial Court as such rightly decreed the suit for specific performance and also rightly declared that sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendants No. 3 and 4 are not binding upon the plaintiff and defendant No. 1. The High Court has committed a grave error in reversing the judgment and decree passed by the learned Trial Court by ignoring the vital facts of the case which are either admitted or proved in the instant case. | 1[ds]4. Though served nobody has entered appearance on behalf of defendant Nos. 2 to 4. Even respondent No. 3 – defendant No. 3 is served by substituted service, namely, by way of publication in two daily newspapers. In that view of the matter, this Court has no other alternative but to proceed further with the appeal ex-parte.5.2 Considering the fact that original defendant No. 1 – vendor – original owner admitted the execution of agreement to sell dated 12.04.2005 and even admitted the receipt of substantial advance sale consideration, the learned Trial Court decreed the suit for specific performance of agreement to sell dated 12.04.2005. Once the execution of agreement to sell and the payment/receipt of advance substantial sale consideration was admitted by the vendor, thereafter nothing further was required to be proved by the plaintiff – vendee. Therefore, as such the learned Trial Court rightly decreed the suit for specific performance of agreement to sell. The High Court, was not required to go into the aspect of the execution of the agreement to sell and the payment/receipt of substantial advance sale consideration, once the vendor had specifically admitted the execution of the agreement to sell and receipt of the advance sale consideration; thereafter no further evidence and/or proof was required.5.3 Now, so far as the sale deeds executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 and the decree passed by the learned Trial Court that the sale deeds executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 are not binding on defendant No. 1 as well as on the plaintiff is concerned, at the outset, it is required to be noted that issue Nos. 4 and 5, reproduced hereinabove, were in respect of the sale deeds executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 dated 03.05.2010. Therefore, specific issues were framed on sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendant Nos. 3 and 4. In that view of the matter, the High Court has erred in setting aside the decree passed by the learned Trial Court by observing that as there was no specific relief/prayer of cancellation of sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendant Nos. 3 and 4, therefore, the learned Trial Court could not have passed the decree that the said sale deeds are not binding on defendant No. 1 and the plaintiff. The High Court has not noted the specific issue Nos. 4 and 5 framed by the learned Trial Court, which were with respect to sale deeds dated 03.05.2010. Therefore, as such, there was a lis between the parties in respect to sale deeds dated 03.05.2005 executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 and even specific issues were framed, which on appreciation of evidence were held against defendant Nos. 2 to 4. Therefore, the High Court is not justified in quashing and setting aside the judgment and decree passed by the learned Trial Court declaring that sale deeds dated 03.05.2010 are not binding on defendant No. 1 and the plaintiff.5.4 It is also required to be noted that on appreciation of evidence, the learned Trial Court has specifically given the finding that the alleged sale consideration paid by defendant Nos. 3 and 4 to original defendant No. 2 for executing sale deeds dated 03.05.2010 have not been established and proved by defendant Nos. 2 to 4. Therefore, there was a specific finding given by the learned Trial Court on appreciation of evidence that sale deeds dated 03.05.2010 were nominal sale deeds. The High Court has brushed aside the same on the ground that even in agreement to sell dated 12.04.2005, the amount was alleged to have been paid by cash. However, it is required to be noted that so far as receipt of substantial advance sale consideration mentioned in the agreement to sell dated 12.04.2005 has been specifically admitted by defendant No. 1. Therefore, when it was specifically alleged that defendant No. 2 executed sale deeds in favour of defendant Nos. 3 and 4, who are his sisters-in-law, with a view to defeat the rights of the plaintiff and defendant No. 1 and when it was alleged that they were nominal sale deeds, thereafter, defendant No. 2 was required to prove the receipt of sale consideration mentioned in the sale deeds dated 03.05.2010, which defendant Nos. 2 to 4 have failed to do so.5.5 It is also required to be noted that on appreciation of evidence, learned Trial Court has specifically found that the stamp papers of agreement to sell dated 12.04.2005 was purchased in the name of defendant No. 2 and therefore defendant No. 2 was aware and in the knowledge of agreement to sell dated 12.04.2005. It is also required to be noted that even defendants did not reply to the legal notice served by the plaintiff, which was issued before filing the suit.5.6 In light of the aforesaid factual aspects and the findings recorded by the learned Trial Court, the decision of this Court in the case of Lala Durga Prasad & Ors. (supra) is required to be referred to. In paragraph 42, it is observed and held as under: -42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin [AIR 1931 Cal 67] and appears to be the English practice. See Fry on Specific Performance, 6th Edn., p. 90, para 207; also Potter v. Sanders [67 ER 1057]. We direct accordingly.The aforesaid decision has been subsequently referred to and followed by this Court in the subsequent decision in the case of Rathnavathi & Anr. (supra).5.7 From the impugned judgment and order passed by the High Court, it appears that the High Court has heavily relied upon Section 34 of the Specific Relief Act. However, considering the fact that specific issues were framed with respect to sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 and the parties led the evidence also on the aforesaid issues and thereafter, when the learned Trial Court had given findings on the said issues and thereafter, had granted the declaration that the sale deeds executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 are not binding on defendant No. 1 and the plaintiff and those sale deeds are nominal sale deeds and that defendant Nos. 2 to 4 have failed to prove that agreement to sell dated 12.04.2005 is a created document and by virtue of the same no consideration has been paid, Section 34 of the Specific Relief Act, upon which the reliance has been placed by the High Court will have no application.5.8 The High Court has set aside the judgment and decree passed by the learned Trial Court on the ground that the relief under Section 20 of the Specific Relief Act, is a discretionary relief and therefore, in view of the fact that original defendant No. 2 had executed sale deeds in favour of defendant Nos. 3 and 4, the learned Trial Court ought not to have exercised discretion in favour of the plaintiff for passing the decree for specific performance. However, in the facts and circumstances of the case narrated hereinabove and when the learned Trial Court specifically gave the findings that defendant No. 1 – vendor specifically admitted the execution of agreement to sell dated 12.04.2005 in favour of the plaintiff by accepting a substantial advance consideration and that defendant No. 2 was in the knowledge of the agreement to sell and despite the same, he sold the same in favour of defendant Nos. 3 and 4, who are his sisters-in-law and that too the sale deeds found to be nominal sale deeds, the learned Trial Court as such rightly decreed the suit for specific performance and also rightly declared that sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendants No. 3 and 4 are not binding upon the plaintiff and defendant No. 1. The High Court has committed a grave error in reversing the judgment and decree passed by the learned Trial Court by ignoring the vital facts of the case which are either admitted or proved in the instant case. | 1 | 3,801 | 1,611 | ### Instruction:
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and 4 and even specific issues were framed, which on appreciation of evidence were held against defendant Nos. 2 to 4. Therefore, the High Court is not justified in quashing and setting aside the judgment and decree passed by the learned Trial Court declaring that sale deeds dated 03.05.2010 are not binding on defendant No. 1 and the plaintiff. 5.4 It is also required to be noted that on appreciation of evidence, the learned Trial Court has specifically given the finding that the alleged sale consideration paid by defendant Nos. 3 and 4 to original defendant No. 2 for executing sale deeds dated 03.05.2010 have not been established and proved by defendant Nos. 2 to 4. Therefore, there was a specific finding given by the learned Trial Court on appreciation of evidence that sale deeds dated 03.05.2010 were nominal sale deeds. The High Court has brushed aside the same on the ground that even in agreement to sell dated 12.04.2005, the amount was alleged to have been paid by cash. However, it is required to be noted that so far as receipt of substantial advance sale consideration mentioned in the agreement to sell dated 12.04.2005 has been specifically admitted by defendant No. 1. Therefore, when it was specifically alleged that defendant No. 2 executed sale deeds in favour of defendant Nos. 3 and 4, who are his sisters-in-law, with a view to defeat the rights of the plaintiff and defendant No. 1 and when it was alleged that they were nominal sale deeds, thereafter, defendant No. 2 was required to prove the receipt of sale consideration mentioned in the sale deeds dated 03.05.2010, which defendant Nos. 2 to 4 have failed to do so. 5.5 It is also required to be noted that on appreciation of evidence, learned Trial Court has specifically found that the stamp papers of agreement to sell dated 12.04.2005 was purchased in the name of defendant No. 2 and therefore defendant No. 2 was aware and in the knowledge of agreement to sell dated 12.04.2005. It is also required to be noted that even defendants did not reply to the legal notice served by the plaintiff, which was issued before filing the suit. 5.6 In light of the aforesaid factual aspects and the findings recorded by the learned Trial Court, the decision of this Court in the case of Lala Durga Prasad & Ors. (supra) is required to be referred to. In paragraph 42, it is observed and held as under: - 42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin [AIR 1931 Cal 67] and appears to be the English practice. See Fry on Specific Performance, 6th Edn., p. 90, para 207; also Potter v. Sanders [67 ER 1057]. We direct accordingly. The aforesaid decision has been subsequently referred to and followed by this Court in the subsequent decision in the case of Rathnavathi & Anr. (supra). 5.7 From the impugned judgment and order passed by the High Court, it appears that the High Court has heavily relied upon Section 34 of the Specific Relief Act. However, considering the fact that specific issues were framed with respect to sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 and the parties led the evidence also on the aforesaid issues and thereafter, when the learned Trial Court had given findings on the said issues and thereafter, had granted the declaration that the sale deeds executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 are not binding on defendant No. 1 and the plaintiff and those sale deeds are nominal sale deeds and that defendant Nos. 2 to 4 have failed to prove that agreement to sell dated 12.04.2005 is a created document and by virtue of the same no consideration has been paid, Section 34 of the Specific Relief Act, upon which the reliance has been placed by the High Court will have no application. 5.8 The High Court has set aside the judgment and decree passed by the learned Trial Court on the ground that the relief under Section 20 of the Specific Relief Act, is a discretionary relief and therefore, in view of the fact that original defendant No. 2 had executed sale deeds in favour of defendant Nos. 3 and 4, the learned Trial Court ought not to have exercised discretion in favour of the plaintiff for passing the decree for specific performance. However, in the facts and circumstances of the case narrated hereinabove and when the learned Trial Court specifically gave the findings that defendant No. 1 – vendor specifically admitted the execution of agreement to sell dated 12.04.2005 in favour of the plaintiff by accepting a substantial advance consideration and that defendant No. 2 was in the knowledge of the agreement to sell and despite the same, he sold the same in favour of defendant Nos. 3 and 4, who are his sisters-in-law and that too the sale deeds found to be nominal sale deeds, the learned Trial Court as such rightly decreed the suit for specific performance and also rightly declared that sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendants No. 3 and 4 are not binding upon the plaintiff and defendant No. 1. The High Court has committed a grave error in reversing the judgment and decree passed by the learned Trial Court by ignoring the vital facts of the case which are either admitted or proved in the instant case.
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2 in favour of defendant Nos. 3 and 4 and even specific issues were framed, which on appreciation of evidence were held against defendant Nos. 2 to 4. Therefore, the High Court is not justified in quashing and setting aside the judgment and decree passed by the learned Trial Court declaring that sale deeds dated 03.05.2010 are not binding on defendant No. 1 and the plaintiff.5.4 It is also required to be noted that on appreciation of evidence, the learned Trial Court has specifically given the finding that the alleged sale consideration paid by defendant Nos. 3 and 4 to original defendant No. 2 for executing sale deeds dated 03.05.2010 have not been established and proved by defendant Nos. 2 to 4. Therefore, there was a specific finding given by the learned Trial Court on appreciation of evidence that sale deeds dated 03.05.2010 were nominal sale deeds. The High Court has brushed aside the same on the ground that even in agreement to sell dated 12.04.2005, the amount was alleged to have been paid by cash. However, it is required to be noted that so far as receipt of substantial advance sale consideration mentioned in the agreement to sell dated 12.04.2005 has been specifically admitted by defendant No. 1. Therefore, when it was specifically alleged that defendant No. 2 executed sale deeds in favour of defendant Nos. 3 and 4, who are his sisters-in-law, with a view to defeat the rights of the plaintiff and defendant No. 1 and when it was alleged that they were nominal sale deeds, thereafter, defendant No. 2 was required to prove the receipt of sale consideration mentioned in the sale deeds dated 03.05.2010, which defendant Nos. 2 to 4 have failed to do so.5.5 It is also required to be noted that on appreciation of evidence, learned Trial Court has specifically found that the stamp papers of agreement to sell dated 12.04.2005 was purchased in the name of defendant No. 2 and therefore defendant No. 2 was aware and in the knowledge of agreement to sell dated 12.04.2005. It is also required to be noted that even defendants did not reply to the legal notice served by the plaintiff, which was issued before filing the suit.5.6 In light of the aforesaid factual aspects and the findings recorded by the learned Trial Court, the decision of this Court in the case of Lala Durga Prasad & Ors. (supra) is required to be referred to. In paragraph 42, it is observed and held as under: -42. In our opinion, the proper form of decree is to direct specific performance of the contract between the vendor and the plaintiff and direct the subsequent transferee to join in the conveyance so as to pass on the title which resides in him to the plaintiff. He does not join in any special covenants made between the plaintiff and his vendor; all he does is to pass on his title to the plaintiff. This was the course followed by the Calcutta High Court in Kafiladdin v. Samiraddin [AIR 1931 Cal 67] and appears to be the English practice. See Fry on Specific Performance, 6th Edn., p. 90, para 207; also Potter v. Sanders [67 ER 1057]. We direct accordingly.The aforesaid decision has been subsequently referred to and followed by this Court in the subsequent decision in the case of Rathnavathi & Anr. (supra).5.7 From the impugned judgment and order passed by the High Court, it appears that the High Court has heavily relied upon Section 34 of the Specific Relief Act. However, considering the fact that specific issues were framed with respect to sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 and the parties led the evidence also on the aforesaid issues and thereafter, when the learned Trial Court had given findings on the said issues and thereafter, had granted the declaration that the sale deeds executed by original defendant No. 2 in favour of defendant Nos. 3 and 4 are not binding on defendant No. 1 and the plaintiff and those sale deeds are nominal sale deeds and that defendant Nos. 2 to 4 have failed to prove that agreement to sell dated 12.04.2005 is a created document and by virtue of the same no consideration has been paid, Section 34 of the Specific Relief Act, upon which the reliance has been placed by the High Court will have no application.5.8 The High Court has set aside the judgment and decree passed by the learned Trial Court on the ground that the relief under Section 20 of the Specific Relief Act, is a discretionary relief and therefore, in view of the fact that original defendant No. 2 had executed sale deeds in favour of defendant Nos. 3 and 4, the learned Trial Court ought not to have exercised discretion in favour of the plaintiff for passing the decree for specific performance. However, in the facts and circumstances of the case narrated hereinabove and when the learned Trial Court specifically gave the findings that defendant No. 1 – vendor specifically admitted the execution of agreement to sell dated 12.04.2005 in favour of the plaintiff by accepting a substantial advance consideration and that defendant No. 2 was in the knowledge of the agreement to sell and despite the same, he sold the same in favour of defendant Nos. 3 and 4, who are his sisters-in-law and that too the sale deeds found to be nominal sale deeds, the learned Trial Court as such rightly decreed the suit for specific performance and also rightly declared that sale deeds dated 03.05.2010 executed by original defendant No. 2 in favour of defendants No. 3 and 4 are not binding upon the plaintiff and defendant No. 1. The High Court has committed a grave error in reversing the judgment and decree passed by the learned Trial Court by ignoring the vital facts of the case which are either admitted or proved in the instant case.
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Dharmendra Kumar Vs. Usha Kumar | for granting relief exists and the petitioner........ is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief...... "On the pleadings the following issue was raised as issue No. 1"Whether the petitioner is not in any way taking advantage of her own wrong for the reasons given in the written statement ?"Subsequently the following additional issue was also framed"Whether the objection covered by issue No. 1 is open to the respondent under the law ?"This additional issue was heard as a preliminary issue. The Additional District Judge, Delhi, who heard the matter, relying on a Full Bench decision of the Delhi High Court reported in I.L.R. (1971) 1 Delhi 6, (Ram Kali v. Gopal Dass), and a later decision of a learned single Judge of that court reported in I.L.R. (1076) 1 Delhi 725, (Gajna Devi v. Purshotam Giri) held that no such circumstance has been alleged in the instant case from which it could be said that the petitioner was trying to take advantage of her own wrong and, therefore, the objection covered by issue No. 1 was not available to the respondent The Additional District Judge accordingly allowed the petition and granted the petitioner a decree of divorce as prayed for. An appeal from this decision taken by the husband was summarily dismissed by the Delhi High Court. In the present appeal the husband questions the validity of the decree of divorce granted in favour of the petitioner.2. Section 13 (IA) (ii) of the Hindu Marriage Act, 1955 allows either party to a marriage to present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage f or the period specified in the provision after the passing of the decree for restitution of conjugal rights. Sub-section (IA) was introduced in section 13 by section 2 of the Hindu Marriage (Amendment) Act, 1964 (44 of 1964). Section 13 as it stood before the 1964 amendment permitted only the spouse who had obtained the decree for restitution of conjugal rights to apply for relief by way of divorce; the party against whom the decree was passed was not given that right. The grounds for granting relief under section 1 3) including sub-section (IA) however continue to be subject to the provisions of section 23 of the Act. We have quoted above the part of section 23 relevant for the present purpose. It is contended by the appellant that the allegation made in his written statement that the conduct of the petitioner in not responding to his invitations to live with him meant that she was trying to take advantage of her own wrong for the purpose of relief under section 13 (1 A) (ii) On the admitted facts, the petitioner was undoubtedly entitled to ask for a decree of divorce. Would the allegation, if true, that she did not respond to her husbands invitation to come and live with him disentitle her to the relief ? We do not find it possible to hold that it would. In Ram Kalis case (supra) a Full Bench of the Delhi High Court held that mere non-compliance with the decree for restitution does not constitute a wrong within the meaning of section 2 3 (1) (a). Relving on and explaining this decision in the later case of Gajna Devi v. Purshotam Giri (supra) a learned Judge of the same High Court observed-"Section 23 existed in the statute book prior to the insertion of section 13(1A)...... Had Parliament intended that a party which is guilty of a matrimonial offence and against which a decree for judicial separation or restitution of conjugal rights had been passed, was in view of section 23 of the Act, not entitled to obtain divorce, then it would have inserted an exception to section 13 (1 A) and with such exception, the provision of section 13(1A) would practically become redundant as the guilty party could never reap benefit of obtaining divorce, while the innocent party was entitled to obtain it even under the statute as it was before the amendment. Section 23 of the Act, therefore, cannot be construed so as to make the effect of amendment of the law by insertion of section 13(1A) nugatory advantage of his or her own wrong" occurring in clause(a) of section 23(1) of the Act does not apply to taking advantage of the statutory right to obtain dissolution of marriage which has been conferred on him by section 13(1A). In such a case, a party is not taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to comply with the decree............"3. In our opinion the law has been stated correctly in Ram Kali v. Gopal Das (supra) and Gajna Devi v. Purshotam Giri (supra). Therefore, it would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree pass ed in his or her favour. In order to be a wrong within the meaning of section 23 (1) (a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.In the case before us the only allegation made in the written statement is that the petitioner refused to receive or reply to the letters written by the appellant and did not respond to his other attempts to make her agree to Eve with him. This allegation, even if true, does not amount to misconduct grave enough to disentitle the petitioner to the relief she has asked for. | 0[ds]Would the allegation, if true, that she did not respond to her husbands invitation to come and live with him disentitle her to the relief ? We do not find it possible to hold that it would.In Ram Kalis case (supra) a Full Bench of the Delhi High Court held that mere non-compliance with the decree for restitution does not constitute a wrong within the meaning of section 2 3 (1) (a). Relving on and explaining this decision in the later case of Gajna Devi v. Purshotam Giri (supra) a learned Judge of the same High Court23 existed in the statute book prior to the insertion of section 13(1A)...... Had Parliament intended that a party which is guilty of a matrimonial offence and against which a decree for judicial separation or restitution of conjugal rights had been passed, was in view of section 23 of the Act, not entitled to obtain divorce, then it would have inserted an exception to section 13 (1 A) and with such exception, the provision of section 13(1A) would practically become redundant as the guilty party could never reap benefit of obtaining divorce, while the innocent party was entitled to obtain it even under the statute as it was before the amendment. Section 23 of the Act, therefore, cannot be construed so as to make the effect of amendment of the law by insertion of section 13(1A)of his or her own wrong" occurring in clause(a) of section 23(1) of the Act does not apply to taking advantage of the statutory right to obtain dissolution of marriage which has been conferred on him by section 13(1A). In such a case, a party is not taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to comply with theour opinion the law has been stated correctly in Ram Kali v. Gopal Das (supra) and Gajna Devi v. Purshotam Giri (supra). Therefore, it would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree pass ed in his or her favour. In order to be a wrong within the meaning of section 23 (1) (a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.In the case before us the only allegation made in the written statement is that the petitioner refused to receive or reply to the letters written by the appellant and did not respond to his other attempts to make her agree to Eve with him. This allegation, even if true, does not amount to misconduct grave enough to disentitle the petitioner to the relief she has asked for. | 0 | 1,631 | 566 | ### 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:
for granting relief exists and the petitioner........ is not in any way taking advantage of his or her own wrong or disability for the purpose of such relief...... "On the pleadings the following issue was raised as issue No. 1"Whether the petitioner is not in any way taking advantage of her own wrong for the reasons given in the written statement ?"Subsequently the following additional issue was also framed"Whether the objection covered by issue No. 1 is open to the respondent under the law ?"This additional issue was heard as a preliminary issue. The Additional District Judge, Delhi, who heard the matter, relying on a Full Bench decision of the Delhi High Court reported in I.L.R. (1971) 1 Delhi 6, (Ram Kali v. Gopal Dass), and a later decision of a learned single Judge of that court reported in I.L.R. (1076) 1 Delhi 725, (Gajna Devi v. Purshotam Giri) held that no such circumstance has been alleged in the instant case from which it could be said that the petitioner was trying to take advantage of her own wrong and, therefore, the objection covered by issue No. 1 was not available to the respondent The Additional District Judge accordingly allowed the petition and granted the petitioner a decree of divorce as prayed for. An appeal from this decision taken by the husband was summarily dismissed by the Delhi High Court. In the present appeal the husband questions the validity of the decree of divorce granted in favour of the petitioner.2. Section 13 (IA) (ii) of the Hindu Marriage Act, 1955 allows either party to a marriage to present a petition for the dissolution of the marriage by a decree of divorce on the ground that there has been no restitution of conjugal rights as between the parties to the marriage f or the period specified in the provision after the passing of the decree for restitution of conjugal rights. Sub-section (IA) was introduced in section 13 by section 2 of the Hindu Marriage (Amendment) Act, 1964 (44 of 1964). Section 13 as it stood before the 1964 amendment permitted only the spouse who had obtained the decree for restitution of conjugal rights to apply for relief by way of divorce; the party against whom the decree was passed was not given that right. The grounds for granting relief under section 1 3) including sub-section (IA) however continue to be subject to the provisions of section 23 of the Act. We have quoted above the part of section 23 relevant for the present purpose. It is contended by the appellant that the allegation made in his written statement that the conduct of the petitioner in not responding to his invitations to live with him meant that she was trying to take advantage of her own wrong for the purpose of relief under section 13 (1 A) (ii) On the admitted facts, the petitioner was undoubtedly entitled to ask for a decree of divorce. Would the allegation, if true, that she did not respond to her husbands invitation to come and live with him disentitle her to the relief ? We do not find it possible to hold that it would. In Ram Kalis case (supra) a Full Bench of the Delhi High Court held that mere non-compliance with the decree for restitution does not constitute a wrong within the meaning of section 2 3 (1) (a). Relving on and explaining this decision in the later case of Gajna Devi v. Purshotam Giri (supra) a learned Judge of the same High Court observed-"Section 23 existed in the statute book prior to the insertion of section 13(1A)...... Had Parliament intended that a party which is guilty of a matrimonial offence and against which a decree for judicial separation or restitution of conjugal rights had been passed, was in view of section 23 of the Act, not entitled to obtain divorce, then it would have inserted an exception to section 13 (1 A) and with such exception, the provision of section 13(1A) would practically become redundant as the guilty party could never reap benefit of obtaining divorce, while the innocent party was entitled to obtain it even under the statute as it was before the amendment. Section 23 of the Act, therefore, cannot be construed so as to make the effect of amendment of the law by insertion of section 13(1A) nugatory advantage of his or her own wrong" occurring in clause(a) of section 23(1) of the Act does not apply to taking advantage of the statutory right to obtain dissolution of marriage which has been conferred on him by section 13(1A). In such a case, a party is not taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to comply with the decree............"3. In our opinion the law has been stated correctly in Ram Kali v. Gopal Das (supra) and Gajna Devi v. Purshotam Giri (supra). Therefore, it would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree pass ed in his or her favour. In order to be a wrong within the meaning of section 23 (1) (a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.In the case before us the only allegation made in the written statement is that the petitioner refused to receive or reply to the letters written by the appellant and did not respond to his other attempts to make her agree to Eve with him. This allegation, even if true, does not amount to misconduct grave enough to disentitle the petitioner to the relief she has asked for.
### Response:
0
### Explanation:
Would the allegation, if true, that she did not respond to her husbands invitation to come and live with him disentitle her to the relief ? We do not find it possible to hold that it would.In Ram Kalis case (supra) a Full Bench of the Delhi High Court held that mere non-compliance with the decree for restitution does not constitute a wrong within the meaning of section 2 3 (1) (a). Relving on and explaining this decision in the later case of Gajna Devi v. Purshotam Giri (supra) a learned Judge of the same High Court23 existed in the statute book prior to the insertion of section 13(1A)...... Had Parliament intended that a party which is guilty of a matrimonial offence and against which a decree for judicial separation or restitution of conjugal rights had been passed, was in view of section 23 of the Act, not entitled to obtain divorce, then it would have inserted an exception to section 13 (1 A) and with such exception, the provision of section 13(1A) would practically become redundant as the guilty party could never reap benefit of obtaining divorce, while the innocent party was entitled to obtain it even under the statute as it was before the amendment. Section 23 of the Act, therefore, cannot be construed so as to make the effect of amendment of the law by insertion of section 13(1A)of his or her own wrong" occurring in clause(a) of section 23(1) of the Act does not apply to taking advantage of the statutory right to obtain dissolution of marriage which has been conferred on him by section 13(1A). In such a case, a party is not taking advantage of his own wrong, but of the legal right following upon of the passing of the decree and the failure of the parties to comply with theour opinion the law has been stated correctly in Ram Kali v. Gopal Das (supra) and Gajna Devi v. Purshotam Giri (supra). Therefore, it would not be very reasonable to think that the relief which is available to the spouse against whom a decree for restitution has been passed, should be denied to the one who does not insist on compliance with the decree pass ed in his or her favour. In order to be a wrong within the meaning of section 23 (1) (a) the conduct alleged has to be something more than a mere disinclination to agree to an offer of reunion, it must be misconduct serious enough to justify denial of the relief to which the husband or the wife is otherwise entitled.In the case before us the only allegation made in the written statement is that the petitioner refused to receive or reply to the letters written by the appellant and did not respond to his other attempts to make her agree to Eve with him. This allegation, even if true, does not amount to misconduct grave enough to disentitle the petitioner to the relief she has asked for.
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Deepak Bajirao Shelke Vs. State of Maharashtra | is also the pancha regarding seizure of tanker vide Exh.18 under which the said tanker was taken charge of on 16th March, 2008. He is also the pancha for identification of the clothes of the deceased by the wife of the deceased on 17th March, 2008 vide Exh.19. He is also the pancha regarding memorandum of statement allegedly made by appellant-accused No.1 pointing out the scene of offence i.e. the place where the victim was done away. He is the pancha for allegedly memorandum statements made by the appellants-accused dated 17th March,2008 pointing out the places from where both the appellants-accused took control of the tanker for further journey. It is at Exh.21. He is also a pancha for memorandum statement of the appellant-accused dated 18th March, 2008 pointing out the place where accused No.1 had kept Rs.6000/-. It is at Exh.22. This panchnama is not supported by the said witness PW No.2 and he turned hostile. He is also the pancha for panchnama Exh.23 dated 18th March, 2008 wherein accused No.2 pointed out the place where he had kept Rs.4000/-. Again for this panchnama PW No.2 had turned hostile.He is also the pancha for joint recovery at the instance of both the appellants-accused regarding the seat belt as mentioned above vide Exh.24 on 18th March, 2008 and subsequent production of Rs.4000/- from his house and jean pant and white colour shirt and also one yellow colour shirt and blue colour jean pant and pair of chappal. Apparently, according to the case of the prosecution that in the same panchnama Exh.24 in continuation of the alleged recovery at the instance of appellant-accused No.1, appellant-accused No.2 also produced his clothes and cash amount of Rs.6,000/- from his house and also pair of chappal. It must be mentioned that said PW No.2 pancha did not support the case of the prosecution either on the aspect of discovery of the seat belt or recovery of the articles at the instance of the respective accused persons. Again said PW No.2 was the pancha for seizure of 20 kilograms oil from PW No.7 under panchnama Exh.25 on 19th March, 2008. However, he turned hostile and was the pancha in the panchnama Exh.26 of 19th March, 2008 wherein allegedly appellant-accused No.1 made a memorandum statement and subsequently showed the place of Baba Dhaba. Again on this aspect said PW No.2 had turned hostile and did not support the case of the prosecution. Again same pancha was used by the investigating agency to conduct the panchnama Exh.28 on 19th March, 2008 wherein 70 kilograms oil was taken charge of from one witness Shivram Khairnar. Again said PW No.2 turned hostile and did not support the case of the prosecution on this count also. Said PW No.2 was also the pancha for the seizure of oil from PW Nos.8 and 9 and other villagers as allegedly these villagers and witnesses deposited 20 kilograms each. However, again for this panchnama said panch witness PW No.2 did not support the prosecution case and turned hostile.Again same PW No.2 was pancha for Exh.30 on 21st March, 2008 under which similar such 20 kilograms oil was seized from various villagers who were not examined by the prosecution. Also on this count PW No.2 did not support the case of the prosecution and turned hostile. Again vide Exh.31 on 22nd March, 2008 said PW No.2 allegedly acted as a panch wherein at the instance of the appellants-accused one shop was shown from where the clothes and foot wears were purchased. On this aspect the concerned shopkeeper was not examined by the prosecution and said pancha PW No.2 did not support the case of the prosecution and turned hostile. Again he was the pancha for Exh.32 dated 22nd March, 2008 wherein the appellant showed the place from where the clothes worth Rs.800/- and chappals worth Rs.239/- were purchased. Again this aspect was not fortified by this witness and he turned hostile to the case of the prosecution. Again same PW No.2 was the pancha for the panchnama Exh.33 on 23rd March, 2008 wherein allegedly appellant-accused had made memorandum statement pointing out the place where the concerned tanker was abandoned at Gurewadi road and then both the accused proceeded to hotel Yashraj. Again on this aspect PW No.2 did not support the case of the prosecution and turned hostile. Said PW No.2 also acted as a pancha on panchnama Exh 34 on 23rd March, 2008 wherein allegedly the appellant-accused showed the place from where both the accused had picked up two girls and proceeded to Hotel Yashraj. This aspect was also not supported by PW No.2 and he turned hostile to the case of the prosecution. He also acted as a pancha for the panchnama Exh.35 on 27th March, 2008 wherein the panchnama was drawn regarding taking of the samples of cotton seed oil, two liters each from four compartments of the concerned tanker.We have carefully gone through the substantive evidence of said PW No.2 and also the evidence of the Investigating Officer on this count. Specifically it must be mentioned that said pancha PW No.2 acted in almost 20 panchnamas. Out of them he had turned hostile and did not support the case of the prosecution in 14 panchnamas as detailed above. Needless to mention that use of the same pancha for almost in 20 panchnamas is definitely a circumstance doubting the case of the prosecution as to genuineness of various discoveries at the hands of the appellant-accused.19. In view of the above we are of the considered view that when the present matter is based on circumstantial evidence, the material available on record is not sufficient enough to rule out the possibility of any other person than the appellants-accused committing the murder of the victim and taking away the tanker. In other words, it must be mentioned that the investigating agency has not gathered the material which will clinchingly point out to the appellants-accused and none-else as the perpetrators of the offences charged. | 1[ds]In view of the above we are of the considered view that when the present matter is based on circumstantial evidence, the material available on record is not sufficient enough to rule out the possibility of any other person than thecommitting the murder of the victim and taking away the tanker. In other words, it must be mentioned that the investigating agency has not gathered the material which will clinchingly point out to these as the perpetrators of the offences charged. | 1 | 5,546 | 89 | ### 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:
is also the pancha regarding seizure of tanker vide Exh.18 under which the said tanker was taken charge of on 16th March, 2008. He is also the pancha for identification of the clothes of the deceased by the wife of the deceased on 17th March, 2008 vide Exh.19. He is also the pancha regarding memorandum of statement allegedly made by appellant-accused No.1 pointing out the scene of offence i.e. the place where the victim was done away. He is the pancha for allegedly memorandum statements made by the appellants-accused dated 17th March,2008 pointing out the places from where both the appellants-accused took control of the tanker for further journey. It is at Exh.21. He is also a pancha for memorandum statement of the appellant-accused dated 18th March, 2008 pointing out the place where accused No.1 had kept Rs.6000/-. It is at Exh.22. This panchnama is not supported by the said witness PW No.2 and he turned hostile. He is also the pancha for panchnama Exh.23 dated 18th March, 2008 wherein accused No.2 pointed out the place where he had kept Rs.4000/-. Again for this panchnama PW No.2 had turned hostile.He is also the pancha for joint recovery at the instance of both the appellants-accused regarding the seat belt as mentioned above vide Exh.24 on 18th March, 2008 and subsequent production of Rs.4000/- from his house and jean pant and white colour shirt and also one yellow colour shirt and blue colour jean pant and pair of chappal. Apparently, according to the case of the prosecution that in the same panchnama Exh.24 in continuation of the alleged recovery at the instance of appellant-accused No.1, appellant-accused No.2 also produced his clothes and cash amount of Rs.6,000/- from his house and also pair of chappal. It must be mentioned that said PW No.2 pancha did not support the case of the prosecution either on the aspect of discovery of the seat belt or recovery of the articles at the instance of the respective accused persons. Again said PW No.2 was the pancha for seizure of 20 kilograms oil from PW No.7 under panchnama Exh.25 on 19th March, 2008. However, he turned hostile and was the pancha in the panchnama Exh.26 of 19th March, 2008 wherein allegedly appellant-accused No.1 made a memorandum statement and subsequently showed the place of Baba Dhaba. Again on this aspect said PW No.2 had turned hostile and did not support the case of the prosecution. Again same pancha was used by the investigating agency to conduct the panchnama Exh.28 on 19th March, 2008 wherein 70 kilograms oil was taken charge of from one witness Shivram Khairnar. Again said PW No.2 turned hostile and did not support the case of the prosecution on this count also. Said PW No.2 was also the pancha for the seizure of oil from PW Nos.8 and 9 and other villagers as allegedly these villagers and witnesses deposited 20 kilograms each. However, again for this panchnama said panch witness PW No.2 did not support the prosecution case and turned hostile.Again same PW No.2 was pancha for Exh.30 on 21st March, 2008 under which similar such 20 kilograms oil was seized from various villagers who were not examined by the prosecution. Also on this count PW No.2 did not support the case of the prosecution and turned hostile. Again vide Exh.31 on 22nd March, 2008 said PW No.2 allegedly acted as a panch wherein at the instance of the appellants-accused one shop was shown from where the clothes and foot wears were purchased. On this aspect the concerned shopkeeper was not examined by the prosecution and said pancha PW No.2 did not support the case of the prosecution and turned hostile. Again he was the pancha for Exh.32 dated 22nd March, 2008 wherein the appellant showed the place from where the clothes worth Rs.800/- and chappals worth Rs.239/- were purchased. Again this aspect was not fortified by this witness and he turned hostile to the case of the prosecution. Again same PW No.2 was the pancha for the panchnama Exh.33 on 23rd March, 2008 wherein allegedly appellant-accused had made memorandum statement pointing out the place where the concerned tanker was abandoned at Gurewadi road and then both the accused proceeded to hotel Yashraj. Again on this aspect PW No.2 did not support the case of the prosecution and turned hostile. Said PW No.2 also acted as a pancha on panchnama Exh 34 on 23rd March, 2008 wherein allegedly the appellant-accused showed the place from where both the accused had picked up two girls and proceeded to Hotel Yashraj. This aspect was also not supported by PW No.2 and he turned hostile to the case of the prosecution. He also acted as a pancha for the panchnama Exh.35 on 27th March, 2008 wherein the panchnama was drawn regarding taking of the samples of cotton seed oil, two liters each from four compartments of the concerned tanker.We have carefully gone through the substantive evidence of said PW No.2 and also the evidence of the Investigating Officer on this count. Specifically it must be mentioned that said pancha PW No.2 acted in almost 20 panchnamas. Out of them he had turned hostile and did not support the case of the prosecution in 14 panchnamas as detailed above. Needless to mention that use of the same pancha for almost in 20 panchnamas is definitely a circumstance doubting the case of the prosecution as to genuineness of various discoveries at the hands of the appellant-accused.19. In view of the above we are of the considered view that when the present matter is based on circumstantial evidence, the material available on record is not sufficient enough to rule out the possibility of any other person than the appellants-accused committing the murder of the victim and taking away the tanker. In other words, it must be mentioned that the investigating agency has not gathered the material which will clinchingly point out to the appellants-accused and none-else as the perpetrators of the offences charged.
### Response:
1
### Explanation:
In view of the above we are of the considered view that when the present matter is based on circumstantial evidence, the material available on record is not sufficient enough to rule out the possibility of any other person than thecommitting the murder of the victim and taking away the tanker. In other words, it must be mentioned that the investigating agency has not gathered the material which will clinchingly point out to these as the perpetrators of the offences charged.
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Commissioner of Income Tax, Madhya Pradesh, Nagpur and Bhandara Vs. Kalyanmal Mills Limited | SIKRI J.1. The point involved in this appeal is the same as in Commissioner of Income-tax v. Swadeshi Cotton and Flour Mills, in which we have just delivered judgment. This appeal was filed in this court after obtaining a certificate under section 66A (2) of the Income-tax Act, 1922, and is directed against the judgment and order of the High Court of Madhya Pradesh, dated August 10, 1961. The High Court followed its decision in the case of Swadeshi Cotton and Flour Mills v. Commissioner of Income-tax.2. The question which was referred to the High Court was as follows :"Whether, on the facts and in the circumstances of the case, Rs. 2, 57, 000 being bonus for the calendar year 1947 is allowable against the profits of calendar year 1949, the previous year for assessment year 1950-51 ?"This question arose out of the assessment year 1950-51 (previous calendar year 1949).3. The assessee is limited company which owns a textile mill. It had paid Rs. 2, 57, 000 as bonus to its workers in respect of the calendar year 1947, and claimed its a deduction in respect of the assessment year 1950-51. A dispute had arisen between the workmen and the assessee and it was settled by an award made in January, 1949, by the tribunal under the Industrial Disputes Act.4. Following our decision and the reasoning in Commissioner of Income-tax v. Swadeshi Cotton and Flour Mills, we hold that the High Court was right in answering the question in the affirmative. | 0[ds]Following our decision and the reasoning in Commissioner ofv. Swadeshi Cotton and Flour Mills, we hold that the High Court was right in answering the question in the affirmative. | 0 | 287 | 36 | ### Instruction:
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SIKRI J.1. The point involved in this appeal is the same as in Commissioner of Income-tax v. Swadeshi Cotton and Flour Mills, in which we have just delivered judgment. This appeal was filed in this court after obtaining a certificate under section 66A (2) of the Income-tax Act, 1922, and is directed against the judgment and order of the High Court of Madhya Pradesh, dated August 10, 1961. The High Court followed its decision in the case of Swadeshi Cotton and Flour Mills v. Commissioner of Income-tax.2. The question which was referred to the High Court was as follows :"Whether, on the facts and in the circumstances of the case, Rs. 2, 57, 000 being bonus for the calendar year 1947 is allowable against the profits of calendar year 1949, the previous year for assessment year 1950-51 ?"This question arose out of the assessment year 1950-51 (previous calendar year 1949).3. The assessee is limited company which owns a textile mill. It had paid Rs. 2, 57, 000 as bonus to its workers in respect of the calendar year 1947, and claimed its a deduction in respect of the assessment year 1950-51. A dispute had arisen between the workmen and the assessee and it was settled by an award made in January, 1949, by the tribunal under the Industrial Disputes Act.4. Following our decision and the reasoning in Commissioner of Income-tax v. Swadeshi Cotton and Flour Mills, we hold that the High Court was right in answering the question in the affirmative.
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0
### Explanation:
Following our decision and the reasoning in Commissioner ofv. Swadeshi Cotton and Flour Mills, we hold that the High Court was right in answering the question in the affirmative.
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Ranvir Dewan Vs. Rashmi Khanna & Another | and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee."(See p. 1172 of the 15th Edn.)"41. Reading of the aforementioned principle of law laid down in the cases of V. Tulasamma and Sadhu Singh (supra), it is clear that the ambit of Section 14(2) of the Act must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a "restricted estate" in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Section 14(2) of the Act, even if the instrument, decree, order or award allotting the property prescribes a "restricted estate" in the property.42. Applying the principle laid down in the aforementioned two cases to the facts of the case on hand, we are of the considered opinion that the case of plaintiff No.2-Mrs. Pritam does not fall under Section 14 (1) of the Act but it squarely falls under Section 14 (2) of the Act. In other words, in our view, in the facts of this case, the law laid down in Sadhu Singhs case(supra) would apply.43. A fortorari, plaintiff No.2-late Mrs.Pritam received only "life interest" in the suit house by the Will dated 24.06.1986 from her late husband and such "life interest" was neither enlarged nor ripened into an absolute interest in the suit house and remained "life interest", i.e., "restricted estate" till her death under Section 14(2) of the Act. This we say for following factual reasons arising in the case.44. First, the testator-Mr.Dewan being the exclusive owner of the suit house was free to dispose of his property the way he liked because it was his self earned property.45. Second, the testator gave the suit house in absolute ownership to his son and the daughter and conferred on them absolute ownership. At the same time, he gave only "life interest" to his wife, i.e., a right to live in the suit house which belonged to son and daughter. Such disposition, the testator could make by virtue of Section 14 (2) read with Section 30 of the Act.46. Third, such "life interest" was in the nature of "restricted estate" under Section 14(2) of the Act which remained a "restricted estate" till her death and did not ripen into an "absolute interest" under Section 14(1) of the Act. In other words, once the case falls under Section 14(2) of the Act, it comes out of Section 14(1). It is permissible in law because Section 14(2) is held as proviso to Section 14(1) of the Act.47. Fourth, the effect of the Will once became operational after the death of testator, the son and the daughter acquired absolute ownership in the suit house to the exclusion of everyone whereas the wife became entitled to live in the suit house as of right. In other words, the wife became entitled in law to enforce her right to live in the suit house qua her son/daughter so long as she was alive. If for any reason, she was deprived of this right, she was entitled to enforce such right qua son/daughter but not beyond it. However, such was not the case here.48. Fifth, the testator had also given his other properties absolutely to his wife which enabled her to maintain herself. Moreover, a right to claim maintenance, if any, had to be enforced by the wife. She, however, never did it and rightly so because both were living happily. There was, therefore, no occasion for her to demand any kind of maintenance from her husband.49. Sixth, it is a settled principle of law that the "life interest" means an interest which determines on the termination of life. It is incapable of being transferred by such person to others being personal in nature. Such person, therefore, could enjoy the "life interest" only during his/her lifetime which is extinguished on his/her death. Such is the case here. Her "life interest" in the suit house was extinguished on her death on 12.09.2016.50. Seventh, as mentioned above, the facts of the case on hand and the one involved in the case of Sadhu Singh (supra) are found to be somewhat similar. The facts of the case of Sadhu Singh were that the husband executed a Will in favour of his wife of his self-acquired property in 1968. Though he gave to wife absolute rights in the properties bequeathed but some restrictions were put on her right to sell/mortgage the properties and further it was mentioned in the Will that the said properties after wifes death would go to testators nephew. Due to these restrictions put by the testator on his wifes right to sell/mortgage, it was held that the wife received only the "life interest" in the properties by Will and such "life interest", being a "restricted estate" within the meaning of Section 14(2) of the Act, did not enlarge and nor ripen into the absolute interest under Section 14(1) but remained a "life interest" i.e. "restricted estate" under Section 14(2) of the Act. It was held that such disposition made by the husband in favour of his wife was permissible in law in the light of Section 14(2) read with Section 30 of the Act. In our view, the facts of the case on hand are similar to the facts of Sadhu Singhs case(supra) and, therefore, this case is fully covered by the law laid down in Sadhu Singhs case.51. In view of foregoing discussion, we are of the considered opinion that there is no error in the impugned judgment, which has rightly held that the case of Mrs. Pritam (Plaintiff No.2) falls under Section 14 (2) of the Act insofar as it relates to the suit house. | 0[ds]28. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal. In our view, the reasoning and the conclusion arrived at by the two Courts is just and proper and being in accordance with law does not call for any interference.29. Before we proceed to decide the appeal on merits, we may take a note of one subsequent event, which occurred during the pendency of this litigation. It is the death ofPritam (plaintiff No.2) on 12.09.2016. She left behind her two legal representatives, namely, appellant, i.e., son and respondent No.1, i.e., daughter. Both being Class I heirs would succeed to their mothers estate in equal share, if she has died intestate. However, if she has made any testamentary disposition of her estate in favour of any person then subject to proving the claim in accordance with law by the person(s) concerned, the disposition of her estate would take place accordingly.30. We, however, express no opinion on any of these issues because, in our view, it is not the subject matter of this appeal and leave the parties to work out their inter se rights, if any, in accordance with law in the estate of Mrs. Pritam in appropriate forum as and when occasion so arises.Coming now to the facts of the case, it is not in dispute that the suit house was theproperty of late Mr. Dewan. It is also not in dispute as one can take it from reading the contents of Will that Mr. Dewan had intended to give only "life interest" to his wife in the suit house, which he gave to her for the first time by way of disposition of his estate independent of her any right. It is also not in dispute that it was confined to a right of residence to live in the suit house during her lifetime and to use the income earned from the suit house to maintain herself and the suit house. It is also not in dispute that the testator gave to his son ground floor of the suit house and first floor to his daughter with absolute right of ownership. The testator also permitted both of them to get their names mutated in the municipal records as absolute owners and also get them assessed as owners in the wealth tax assessment cases.35. So far as other properties, viz., one plot at Ghaziabad, share in HUF and moveable properties were concerned, Mr. Dewan gave these properties to Mrs.wife absolutely.36. It is a settled principle of law that what the testator intended to bequeath to any person(s) in his Will has to be gathered primarily by reading the recitals of the Will only.37. As mentioned above, reading of the Will would go to show that it does not leave any kind of ambiguity therein and one can easily find out as to how and in what manner and with what rights, the testator wished to give to three of his legal representatives his self acquired properties and how he wanted to make its disposition.Reading of the aforementioned principle of law laid down in the cases of V. Tulasamma and Sadhu Singh (supra), it is clear that the ambit of Section 14(2) of the Act must be confined to cases where property is acquired by a female Hindu for the first time as a grant without anyright, under a gift, will, instrument, decree, order or award, the terms of which prescribe a "restricted estate" in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of aright and such an acquisition would not be within the scope and ambit of Section 14(2) of the Act, even if the instrument, decree, order or award allotting the property prescribes a "restricted estate" in the property.42. Applying the principle laid down in the aforementioned two cases to the facts of the case on hand, we are of the considered opinion that the case of plaintiff No.Pritam does not fall under Section 14 (1) of the Act but it squarely falls under Section 14 (2) of the Act. In other words, in our view, in the facts of this case, the law laid down in Sadhu Singhs case(supra) would apply.43. A fortorari, plaintiffMrs.Pritam received only "life interest" in the suit house by the Will dated 24.06.1986 from her late husband and such "life interest" was neither enlarged nor ripened into an absolute interest in the suit house and remained "life interest", i.e., "restricted estate" till her death under Section 14(2) of the Act. This we say for following factual reasons arising in the case.44. First, thebeing the exclusive owner of the suit house was free to dispose of his property the way he liked because it was his self earned property.45. Second, the testator gave the suit house in absolute ownership to his son and the daughter and conferred on them absolute ownership. At the same time, he gave only "life interest" to his wife, i.e., a right to live in the suit house which belonged to son and daughter. Such disposition, the testator could make by virtue of Section 14 (2) read with Section 30 of the Act.46. Third, such "life interest" was in the nature of "restricted estate" under Section 14(2) of the Act which remained a "restricted estate" till her death and did not ripen into an "absolute interest" under Section 14(1) of the Act. In other words, once the case falls under Section 14(2) of the Act, it comes out of Section 14(1). It is permissible in law because Section 14(2) is held as proviso to Section 14(1) of the Act.47. Fourth, the effect of the Will once became operational after the death of testator, the son and the daughter acquired absolute ownership in the suit house to the exclusion of everyone whereas the wife became entitled to live in the suit house as of right. In other words, the wife became entitled in law to enforce her right to live in the suit house qua her son/daughter so long as she was alive. If for any reason, she was deprived of this right, she was entitled to enforce such right qua son/daughter but not beyond it. However, such was not the case here.48. Fifth, the testator had also given his other properties absolutely to his wife which enabled her to maintain herself. Moreover, a right to claim maintenance, if any, had to be enforced by the wife. She, however, never did it and rightly so because both were living happily. There was, therefore, no occasion for her to demand any kind of maintenance from her husband.49. Sixth, it is a settled principle of law that the "life interest" means an interest which determines on the termination of life. It is incapable of being transferred by such person to others being personal in nature. Such person, therefore, could enjoy the "life interest" only during his/her lifetime which is extinguished on his/her death. Such is the case here. Her "life interest" in the suit house was extinguished on her death on 12.09.2016.50. Seventh, as mentioned above, the facts of the case on hand and the one involved in the case of Sadhu Singh (supra) are found to be somewhat similar. The facts of the case of Sadhu Singh were that the husband executed a Will in favour of his wife of hisproperty in 1968. Though he gave to wife absolute rights in the properties bequeathed but some restrictions were put on her right to sell/mortgage the properties and further it was mentioned in the Will that the said properties after wifes death would go to testators nephew. Due to these restrictions put by the testator on his wifes right to sell/mortgage, it was held that the wife received only the "life interest" in the properties by Will and such "life interest", being a "restricted estate" within the meaning of Section 14(2) of the Act, did not enlarge and nor ripen into the absolute interest under Section 14(1) but remained a "life interest" i.e. "restricted estate" under Section 14(2) of the Act. It was held that such disposition made by the husband in favour of his wife was permissible in law in the light of Section 14(2) read with Section 30 of the Act. In our view, the facts of the case on hand are similar to the facts of Sadhu Singhs case(supra) and, therefore, this case is fully covered by the law laid down in Sadhu Singhs case.51. In view of foregoing discussion, we are of the considered opinion that there is no error in the impugned judgment, which has rightly held that the case of Mrs. Pritam (Plaintiff No.2) falls under Section 14 (2) of the Act insofar as it relates to the suit house. | 0 | 5,628 | 1,727 | ### Instruction:
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and would be governed by Section 14(1) despite any restrictions placed on the powers of the transferee."(See p. 1172 of the 15th Edn.)"41. Reading of the aforementioned principle of law laid down in the cases of V. Tulasamma and Sadhu Singh (supra), it is clear that the ambit of Section 14(2) of the Act must be confined to cases where property is acquired by a female Hindu for the first time as a grant without any pre-existing right, under a gift, will, instrument, decree, order or award, the terms of which prescribe a "restricted estate" in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of a pre-existing right and such an acquisition would not be within the scope and ambit of Section 14(2) of the Act, even if the instrument, decree, order or award allotting the property prescribes a "restricted estate" in the property.42. Applying the principle laid down in the aforementioned two cases to the facts of the case on hand, we are of the considered opinion that the case of plaintiff No.2-Mrs. Pritam does not fall under Section 14 (1) of the Act but it squarely falls under Section 14 (2) of the Act. In other words, in our view, in the facts of this case, the law laid down in Sadhu Singhs case(supra) would apply.43. A fortorari, plaintiff No.2-late Mrs.Pritam received only "life interest" in the suit house by the Will dated 24.06.1986 from her late husband and such "life interest" was neither enlarged nor ripened into an absolute interest in the suit house and remained "life interest", i.e., "restricted estate" till her death under Section 14(2) of the Act. This we say for following factual reasons arising in the case.44. First, the testator-Mr.Dewan being the exclusive owner of the suit house was free to dispose of his property the way he liked because it was his self earned property.45. Second, the testator gave the suit house in absolute ownership to his son and the daughter and conferred on them absolute ownership. At the same time, he gave only "life interest" to his wife, i.e., a right to live in the suit house which belonged to son and daughter. Such disposition, the testator could make by virtue of Section 14 (2) read with Section 30 of the Act.46. Third, such "life interest" was in the nature of "restricted estate" under Section 14(2) of the Act which remained a "restricted estate" till her death and did not ripen into an "absolute interest" under Section 14(1) of the Act. In other words, once the case falls under Section 14(2) of the Act, it comes out of Section 14(1). It is permissible in law because Section 14(2) is held as proviso to Section 14(1) of the Act.47. Fourth, the effect of the Will once became operational after the death of testator, the son and the daughter acquired absolute ownership in the suit house to the exclusion of everyone whereas the wife became entitled to live in the suit house as of right. In other words, the wife became entitled in law to enforce her right to live in the suit house qua her son/daughter so long as she was alive. If for any reason, she was deprived of this right, she was entitled to enforce such right qua son/daughter but not beyond it. However, such was not the case here.48. Fifth, the testator had also given his other properties absolutely to his wife which enabled her to maintain herself. Moreover, a right to claim maintenance, if any, had to be enforced by the wife. She, however, never did it and rightly so because both were living happily. There was, therefore, no occasion for her to demand any kind of maintenance from her husband.49. Sixth, it is a settled principle of law that the "life interest" means an interest which determines on the termination of life. It is incapable of being transferred by such person to others being personal in nature. Such person, therefore, could enjoy the "life interest" only during his/her lifetime which is extinguished on his/her death. Such is the case here. Her "life interest" in the suit house was extinguished on her death on 12.09.2016.50. Seventh, as mentioned above, the facts of the case on hand and the one involved in the case of Sadhu Singh (supra) are found to be somewhat similar. The facts of the case of Sadhu Singh were that the husband executed a Will in favour of his wife of his self-acquired property in 1968. Though he gave to wife absolute rights in the properties bequeathed but some restrictions were put on her right to sell/mortgage the properties and further it was mentioned in the Will that the said properties after wifes death would go to testators nephew. Due to these restrictions put by the testator on his wifes right to sell/mortgage, it was held that the wife received only the "life interest" in the properties by Will and such "life interest", being a "restricted estate" within the meaning of Section 14(2) of the Act, did not enlarge and nor ripen into the absolute interest under Section 14(1) but remained a "life interest" i.e. "restricted estate" under Section 14(2) of the Act. It was held that such disposition made by the husband in favour of his wife was permissible in law in the light of Section 14(2) read with Section 30 of the Act. In our view, the facts of the case on hand are similar to the facts of Sadhu Singhs case(supra) and, therefore, this case is fully covered by the law laid down in Sadhu Singhs case.51. In view of foregoing discussion, we are of the considered opinion that there is no error in the impugned judgment, which has rightly held that the case of Mrs. Pritam (Plaintiff No.2) falls under Section 14 (2) of the Act insofar as it relates to the suit house.
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out as to how and in what manner and with what rights, the testator wished to give to three of his legal representatives his self acquired properties and how he wanted to make its disposition.Reading of the aforementioned principle of law laid down in the cases of V. Tulasamma and Sadhu Singh (supra), it is clear that the ambit of Section 14(2) of the Act must be confined to cases where property is acquired by a female Hindu for the first time as a grant without anyright, under a gift, will, instrument, decree, order or award, the terms of which prescribe a "restricted estate" in the property. Where, however, property is acquired by a Hindu female at a partition or in lieu of right of maintenance, it is in virtue of aright and such an acquisition would not be within the scope and ambit of Section 14(2) of the Act, even if the instrument, decree, order or award allotting the property prescribes a "restricted estate" in the property.42. Applying the principle laid down in the aforementioned two cases to the facts of the case on hand, we are of the considered opinion that the case of plaintiff No.Pritam does not fall under Section 14 (1) of the Act but it squarely falls under Section 14 (2) of the Act. In other words, in our view, in the facts of this case, the law laid down in Sadhu Singhs case(supra) would apply.43. A fortorari, plaintiffMrs.Pritam received only "life interest" in the suit house by the Will dated 24.06.1986 from her late husband and such "life interest" was neither enlarged nor ripened into an absolute interest in the suit house and remained "life interest", i.e., "restricted estate" till her death under Section 14(2) of the Act. This we say for following factual reasons arising in the case.44. First, thebeing the exclusive owner of the suit house was free to dispose of his property the way he liked because it was his self earned property.45. Second, the testator gave the suit house in absolute ownership to his son and the daughter and conferred on them absolute ownership. At the same time, he gave only "life interest" to his wife, i.e., a right to live in the suit house which belonged to son and daughter. Such disposition, the testator could make by virtue of Section 14 (2) read with Section 30 of the Act.46. Third, such "life interest" was in the nature of "restricted estate" under Section 14(2) of the Act which remained a "restricted estate" till her death and did not ripen into an "absolute interest" under Section 14(1) of the Act. In other words, once the case falls under Section 14(2) of the Act, it comes out of Section 14(1). It is permissible in law because Section 14(2) is held as proviso to Section 14(1) of the Act.47. Fourth, the effect of the Will once became operational after the death of testator, the son and the daughter acquired absolute ownership in the suit house to the exclusion of everyone whereas the wife became entitled to live in the suit house as of right. In other words, the wife became entitled in law to enforce her right to live in the suit house qua her son/daughter so long as she was alive. If for any reason, she was deprived of this right, she was entitled to enforce such right qua son/daughter but not beyond it. However, such was not the case here.48. Fifth, the testator had also given his other properties absolutely to his wife which enabled her to maintain herself. Moreover, a right to claim maintenance, if any, had to be enforced by the wife. She, however, never did it and rightly so because both were living happily. There was, therefore, no occasion for her to demand any kind of maintenance from her husband.49. Sixth, it is a settled principle of law that the "life interest" means an interest which determines on the termination of life. It is incapable of being transferred by such person to others being personal in nature. Such person, therefore, could enjoy the "life interest" only during his/her lifetime which is extinguished on his/her death. Such is the case here. Her "life interest" in the suit house was extinguished on her death on 12.09.2016.50. Seventh, as mentioned above, the facts of the case on hand and the one involved in the case of Sadhu Singh (supra) are found to be somewhat similar. The facts of the case of Sadhu Singh were that the husband executed a Will in favour of his wife of hisproperty in 1968. Though he gave to wife absolute rights in the properties bequeathed but some restrictions were put on her right to sell/mortgage the properties and further it was mentioned in the Will that the said properties after wifes death would go to testators nephew. Due to these restrictions put by the testator on his wifes right to sell/mortgage, it was held that the wife received only the "life interest" in the properties by Will and such "life interest", being a "restricted estate" within the meaning of Section 14(2) of the Act, did not enlarge and nor ripen into the absolute interest under Section 14(1) but remained a "life interest" i.e. "restricted estate" under Section 14(2) of the Act. It was held that such disposition made by the husband in favour of his wife was permissible in law in the light of Section 14(2) read with Section 30 of the Act. In our view, the facts of the case on hand are similar to the facts of Sadhu Singhs case(supra) and, therefore, this case is fully covered by the law laid down in Sadhu Singhs case.51. In view of foregoing discussion, we are of the considered opinion that there is no error in the impugned judgment, which has rightly held that the case of Mrs. Pritam (Plaintiff No.2) falls under Section 14 (2) of the Act insofar as it relates to the suit house.
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Shri Puran Singh Sahni Vs. Smt. Sundrifbhagwandas Kripalani | the business of a society in Section 91(1) does to mean affairs of the society. It has been used here in a narrower sense and means the actual trading or commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and its bye-laws. It was, however, held that Section 91 of the Maharashtra Cooperative Societies Act did not affect the provisions of Section 26 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Although both these provisions start by excluding "anything contained in any other law", two Acts could be harmonized best by holding that in matters covered by the Rent Act, its provisions rather than the provisions of the Maharashtra Cooperative Societies Act, should apply. The letter Act was passed in the main, to shorten litigation, lessen its cost and to provide a summary procedure for the determination of the disputes relating to internal management of the society. But under the Rent Act a different societies objective was intended to be achieved and for achieving that social objective it was necessary that the dispute between the landlord and the tenant should be dealt with by the courts set up under the Rent Act and in accordance with the special provisions of that Act and this social objective and not impinge on the objective underlying the Maharashtra Cooperative Societies Act 35. In O. N. Bhatnagar v. Rukibai Narsindas ( 1982 (2) SCC 244 : 1982 (3) SCR 681 ), which was also case of Shyam Cooperative Housing Society Limited, it was held that the claim of the society together with such member for ejectment of a person who was permitted to occupy having become a nominal member thereof, upon revocation of licence was a dispute falling within the purview of Section 1 of the Maharashtra Cooperative Societies Act, 1960 and that the proceedings under Section 91(1) of the Maharashtra Cooperative Societies Act, 1960 were not barred by the provisions of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The two Acts could be best harmonized by holding that the matters covered by the Rent Acts, its provisions, rather than the provisions of the Cooperative Societies Act should apply. But where the parties admittedly did not stand in the jural relationship of landlord and tenant, as their dispute would be governed by Section 91(1) of the Societies Act and that the appellant by virtue of his being a nominal member, acquired a right to occupy the flat as a licensee, but his rights were inchoate. In the facts of the instant case upon the terms of Sections 5(4-A) and 15-A of the Rent Act, it is clear that the appellant was not entitled to the protection of Section 15-A. The sine qua non for the applicability of Section 15-A of the Rent Act was that a licensee must be in occupation as on February 1, 1973 under a subsisting license. It is not disputed that the appellant did not answer that description since the agreement of leave and licence in his favour admittedly stood terminated by the notice of respondent 1 on March 10, 1972. That being so, the appellant was nothing but a rank trespasser and was not entitled to the protection of Section 15-A of the Rent Act and could not, therefore, plead the bar of Section 28(1) thereof 36. In Hindustan Petroleum Corporation Ltd. v. Shyam Cooperative Housing Society ( 1988 (4) SCC 747 ), at paragraph 14 it was held under the facts of that case that the petitioner Hindustan Petroleum Corporation Ltd. was clearly protected under Section 15-A of the Rent Act and in that view of the matter the jurisdiction of the Registrar under Section 91(1) of the Cooperative Societies Act would be as laid down in O.N. Bhatnagar case ( 1982 (2) SCC 244 : 1982 (3) SCR 681 ). The proceedings initiated under Section 91 were accordingly quashed. This case is, therefore, distinguishable on facts 37. Following Bhatnagar case ( 1982 (2) SCC 244 : 1982 (3) SCR 681 ). in Krishna Rajpal Bhatia v. Leela H. Advani ( 1989 (1) SCC 52 ), where a tenant co-partner member of a registered co-partnership type cooperative housing society inducting another person into her flat for a term of eleven months subject to renewal of the term from time to time after obtaining societys permission and after the person so inducted becoming a nominal member of the society and the agreement between the parties embodied in usual standard form of leave and licence, it was held that the tenant co-partner member only created a licence and not a lease and that the Maharashtra Cooperative Societies Act, 1960 was applicable. There also the nominal membership of the society was obtained in terms of the societys bye-laws and the licence was terminated by notice after expiry of the term, but the occupant was not vacating. Claim made by the co-partner under Section 91 of the Maharashtra Cooperative Societies Act, 1960 for ejectment of the occupant was held to constitute a dispute touching the business of a society within the meaning of Section 91 and hence the Registrars jurisdiction to entertain the claim was held not to have been barred under Section 28 of the Rent Act38. Applying the law laid down in the above decisions we are of the view that the instant dispute is one envisaged in Section 91 of the Maharashtra Cooperative Societies Act and the Cooperative Courts rightly exercised jurisdiction39. The next question, namely, Section 91 is ultra vires Article 14 of the Constitution of India to the extent it tries to reach persons who are not members is not tenable, inasmuch as the appellant is involved in a dispute touching the business of the Society and he was a nominal member of the Society by dint of his agreement of leave and licence and he was made so on his application | 0[ds]13. In the agreement the intention to create a licence is clear. Positively it speaks of a licence for the use of the flat and negatively that the licensee would not claim any tenancy or sub-tenancy. That the intention of the parties was to create only a licence and not a lease is clear from the tenor of the agreement. True, by mere use of the word lease or licence the correct categorisation of an instrument under law cannot be affected. What was given to the licensee was the use of the flat with furniture, fittings etc., which could not be said to have created any interest in the flat though in effect the use continued for a stipulated period of time. It is true, where the ingredients of a lease are present and the licensee is according to law, a tenant, he ought to be give the benefit of the RentIt has been submitted for the appellant that the very fact of exclusive possession of the flat being given to the appellant was sufficient to make him lessee and Advani his landlord. We do not agree with the submission in an unqualified form. There have been cases where exclusive possession has been given outside the Rent Act. In Isaacv. Hotel De Paris Ltd. ( 1960 (1) All(ER) 348: 1960 (1) WLR 239(PC)), the respondent company owning the Hotel de Paris were the lessees of another building called the P. Hotel, it was held that the respondent company were entitled to an order for possession because the relationship between the parties was not that of landlord and tenant but of licensor and licensee, even though there was exclusive possession by the appellant and the acceptance of the amount of the rent by the respondent company, the circumstances and the conduct of the parties showing that all that was intended was that the appellant should have a personal privilege of running a night bar at the P. Hotel with no interest in the land at all, and this privilege came to an end with the notice of May 1956 and that after the notice the appellant remained in occupation at sufferance and, in the circumstances, the acceptance of rent by the respondent company did not waive their right to immediate possession. It was observed that there were many cases in the books where exclusive possession had been given of premises outside the Rent Restriction Acts and yet there had been held to be no tenancy.In view of licence of the appellant having been cancelled on March 10, 1972, licence as defined by the Rent Act itself, would not apply, to the appellants case. He would, therefore, not be protected under Section 15-A of the RentAct38. Applying the law laid down in the above decisions we are of the view that the instant dispute is one envisaged in Section 91 of the Maharashtra Cooperative Societies Act and the Cooperative Courts rightly exercised jurisdiction39. The next question, namely, Section 91 is ultra vires Article 14 of the Constitution of India to the extent it tries to reach persons who are not members is not tenable, inasmuch as the appellant is involved in a dispute touching the business of the Society and he was a nominal member of the Society by dint of his agreement of leave and licence and he was made so on his application | 0 | 7,666 | 616 | ### Instruction:
Determine the likely decision of the case (acceptance (1) or rejection (0)) and follow up with an explanation highlighting key sentences that support this prediction.
### Input:
the business of a society in Section 91(1) does to mean affairs of the society. It has been used here in a narrower sense and means the actual trading or commercial or other similar business activity of the society which the society is authorised to enter into under the Act and the Rules and its bye-laws. It was, however, held that Section 91 of the Maharashtra Cooperative Societies Act did not affect the provisions of Section 26 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. Although both these provisions start by excluding "anything contained in any other law", two Acts could be harmonized best by holding that in matters covered by the Rent Act, its provisions rather than the provisions of the Maharashtra Cooperative Societies Act, should apply. The letter Act was passed in the main, to shorten litigation, lessen its cost and to provide a summary procedure for the determination of the disputes relating to internal management of the society. But under the Rent Act a different societies objective was intended to be achieved and for achieving that social objective it was necessary that the dispute between the landlord and the tenant should be dealt with by the courts set up under the Rent Act and in accordance with the special provisions of that Act and this social objective and not impinge on the objective underlying the Maharashtra Cooperative Societies Act 35. In O. N. Bhatnagar v. Rukibai Narsindas ( 1982 (2) SCC 244 : 1982 (3) SCR 681 ), which was also case of Shyam Cooperative Housing Society Limited, it was held that the claim of the society together with such member for ejectment of a person who was permitted to occupy having become a nominal member thereof, upon revocation of licence was a dispute falling within the purview of Section 1 of the Maharashtra Cooperative Societies Act, 1960 and that the proceedings under Section 91(1) of the Maharashtra Cooperative Societies Act, 1960 were not barred by the provisions of Section 28 of the Bombay Rents, Hotel and Lodging House Rates Control Act, 1947. The two Acts could be best harmonized by holding that the matters covered by the Rent Acts, its provisions, rather than the provisions of the Cooperative Societies Act should apply. But where the parties admittedly did not stand in the jural relationship of landlord and tenant, as their dispute would be governed by Section 91(1) of the Societies Act and that the appellant by virtue of his being a nominal member, acquired a right to occupy the flat as a licensee, but his rights were inchoate. In the facts of the instant case upon the terms of Sections 5(4-A) and 15-A of the Rent Act, it is clear that the appellant was not entitled to the protection of Section 15-A. The sine qua non for the applicability of Section 15-A of the Rent Act was that a licensee must be in occupation as on February 1, 1973 under a subsisting license. It is not disputed that the appellant did not answer that description since the agreement of leave and licence in his favour admittedly stood terminated by the notice of respondent 1 on March 10, 1972. That being so, the appellant was nothing but a rank trespasser and was not entitled to the protection of Section 15-A of the Rent Act and could not, therefore, plead the bar of Section 28(1) thereof 36. In Hindustan Petroleum Corporation Ltd. v. Shyam Cooperative Housing Society ( 1988 (4) SCC 747 ), at paragraph 14 it was held under the facts of that case that the petitioner Hindustan Petroleum Corporation Ltd. was clearly protected under Section 15-A of the Rent Act and in that view of the matter the jurisdiction of the Registrar under Section 91(1) of the Cooperative Societies Act would be as laid down in O.N. Bhatnagar case ( 1982 (2) SCC 244 : 1982 (3) SCR 681 ). The proceedings initiated under Section 91 were accordingly quashed. This case is, therefore, distinguishable on facts 37. Following Bhatnagar case ( 1982 (2) SCC 244 : 1982 (3) SCR 681 ). in Krishna Rajpal Bhatia v. Leela H. Advani ( 1989 (1) SCC 52 ), where a tenant co-partner member of a registered co-partnership type cooperative housing society inducting another person into her flat for a term of eleven months subject to renewal of the term from time to time after obtaining societys permission and after the person so inducted becoming a nominal member of the society and the agreement between the parties embodied in usual standard form of leave and licence, it was held that the tenant co-partner member only created a licence and not a lease and that the Maharashtra Cooperative Societies Act, 1960 was applicable. There also the nominal membership of the society was obtained in terms of the societys bye-laws and the licence was terminated by notice after expiry of the term, but the occupant was not vacating. Claim made by the co-partner under Section 91 of the Maharashtra Cooperative Societies Act, 1960 for ejectment of the occupant was held to constitute a dispute touching the business of a society within the meaning of Section 91 and hence the Registrars jurisdiction to entertain the claim was held not to have been barred under Section 28 of the Rent Act38. Applying the law laid down in the above decisions we are of the view that the instant dispute is one envisaged in Section 91 of the Maharashtra Cooperative Societies Act and the Cooperative Courts rightly exercised jurisdiction39. The next question, namely, Section 91 is ultra vires Article 14 of the Constitution of India to the extent it tries to reach persons who are not members is not tenable, inasmuch as the appellant is involved in a dispute touching the business of the Society and he was a nominal member of the Society by dint of his agreement of leave and licence and he was made so on his application
### Response:
0
### Explanation:
13. In the agreement the intention to create a licence is clear. Positively it speaks of a licence for the use of the flat and negatively that the licensee would not claim any tenancy or sub-tenancy. That the intention of the parties was to create only a licence and not a lease is clear from the tenor of the agreement. True, by mere use of the word lease or licence the correct categorisation of an instrument under law cannot be affected. What was given to the licensee was the use of the flat with furniture, fittings etc., which could not be said to have created any interest in the flat though in effect the use continued for a stipulated period of time. It is true, where the ingredients of a lease are present and the licensee is according to law, a tenant, he ought to be give the benefit of the RentIt has been submitted for the appellant that the very fact of exclusive possession of the flat being given to the appellant was sufficient to make him lessee and Advani his landlord. We do not agree with the submission in an unqualified form. There have been cases where exclusive possession has been given outside the Rent Act. In Isaacv. Hotel De Paris Ltd. ( 1960 (1) All(ER) 348: 1960 (1) WLR 239(PC)), the respondent company owning the Hotel de Paris were the lessees of another building called the P. Hotel, it was held that the respondent company were entitled to an order for possession because the relationship between the parties was not that of landlord and tenant but of licensor and licensee, even though there was exclusive possession by the appellant and the acceptance of the amount of the rent by the respondent company, the circumstances and the conduct of the parties showing that all that was intended was that the appellant should have a personal privilege of running a night bar at the P. Hotel with no interest in the land at all, and this privilege came to an end with the notice of May 1956 and that after the notice the appellant remained in occupation at sufferance and, in the circumstances, the acceptance of rent by the respondent company did not waive their right to immediate possession. It was observed that there were many cases in the books where exclusive possession had been given of premises outside the Rent Restriction Acts and yet there had been held to be no tenancy.In view of licence of the appellant having been cancelled on March 10, 1972, licence as defined by the Rent Act itself, would not apply, to the appellants case. He would, therefore, not be protected under Section 15-A of the RentAct38. Applying the law laid down in the above decisions we are of the view that the instant dispute is one envisaged in Section 91 of the Maharashtra Cooperative Societies Act and the Cooperative Courts rightly exercised jurisdiction39. The next question, namely, Section 91 is ultra vires Article 14 of the Constitution of India to the extent it tries to reach persons who are not members is not tenable, inasmuch as the appellant is involved in a dispute touching the business of the Society and he was a nominal member of the Society by dint of his agreement of leave and licence and he was made so on his application
|
Hooghly Mills Company Ltd Vs. The State of West Bengal and Ors | enunciated by this Court in Baldev Krishna Sahi (supra), by strictly interpreting Section 630 to mean that the Appellant company must have title by way of ownership to the disputed property and that the Accused should have been in possession of the flat as a perquisite of his service. Section 630 nowhere requires that the company should have title to the property. The emphasis is on whether the Accused has obtained wrongful possession of the property which defeats the companys lawful right of exclusive possession, even though the property as such may not belong to the company but to a third-party landlord or licensor, as was the case in Atul Mathur (supra). The term property of the company has to be construed widely having regard to the beneficial object of the Section (See Kannankandi Gopal Krishna Nair (supra); PV George v. Jayems Engineering Co. (P) Ltd., (1990) 2 Comp LJ 62 (Mad)). The 2nd Respondent has admitted that after the death of Arun Kumar Bajoria, the disputed property was inherited by the vendors who subsequently transferred possession to the Appellant company by the agreement dated 26.4.2008. The 2nd Respondent also handed over the title deeds of the property to the Appellant company. Therefore, till the time that the 2nd Respondent does not prove in the civil suit that the vendors were required to have sold the property to him, it is the company which has the exclusive right to possess the property at present. Farther, it is true that in the majority of cases falling under the ambit of Section 630, it has been that property possessed by the company was allotted to an employee for the purposes of residential accommodation, etc. as an incidence of his service, at the first instance itself. In the present case, the 2nd Respondent has been a director of the company since 1988, and claims to be in permissive possession of the disputed property as per the alleged understanding between him and his relative, the deceased Arun Kumar Bajoria, since 1994. However the company acquired the disputed property only in 2008. Be that as it may, the 2nd Respondent has failed to rebut the fact that as of 26.4.2008 it is the company which has acquired the exclusive right to possess the property, and the company handed over possession to him w.e.f. 1.5.2008 only in his capacity as the director of the company. Whatever may have been the situation prior to 26.4.2008, on and after that date the company became entitled to recover possession of the disputed property. We find no substance in the 2nd Respondents argument that he was misled into delivering the title documents of the disputed property by his sister-in-law on the ground that they were required for updation of records. The 2nd Respondent, being an office bearer in the company, could have got the records updated on his own or could have delivered it to the vendors, if it was on their insistence that he handed over the documents. However the letter dated 9.6.2008 shows that the title documents were delivered to a representative of the Appellant company. This shows that the 2nd Respondent acknowledged that title was to be transferred to the company vide the agreement dated 26.4.2008. Section 630 nowhere stipulates that the property should have been allotted by the company to the Accused as a perquisite of service. There may be a number of purposes for which the Accused may be given lawful possession of the companys property during the course of employment for example, for safe custody of the property or for maintenance thereof. The purpose for which and the time at which possession was given is irrelevant. What is sufficient is that the Accused was put into possession of the property in their capacity as an officer/employee of the company and continued to withhold such property without having any independent right, title or interest thereto even after cessation of his employment. As we have found in the discussion supra, mere oral agreement or understanding would not be sufficient to establish such an independent right. 11. Coming to the final issue, Section 397(2) of the Code of Criminal Procedure provides that the High Courts powers of revision shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. Whereas Section 482 of the Code of Criminal Procedure provides that nothing in the Code of Criminal Procedure will limit the High Courts inherent powers to prevent abuse of process or to secure the ends of justice. Hence the High Court may exercise its inherent powers Under Section 482 to set aside an interlocutory order, notwithstanding the bar Under Section 397(2). However it is settled law that this can only be done in exceptional cases. This is, for example, where a criminal proceeding has been initiated illegally, vexatiously or without jurisdiction (See Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551). In the present case, the order of the Magistrate Under Section 630(2) was an interlocutory relief based on a prima facie assessment of facts and did not conclusively decide the ongoing trial Under Section 630(1). If the Magistrate finds that the Appellant company has been unable to prove that the 2nd Respondent was wrongfully withholding possession of the property, such interlocutory relief shall stand vacated. In light of the above discussion, it is clear that there was no exceptional case of illegality or lack of jurisdiction in the interlocutory order of the lower court calling for the exercise of the inherent powers of the High Court Under Section 482, Code of Criminal Procedure. However we are in agreement with the High Courts direction that the trial Under Section 630(1) ought to be completed as soon as possible. Further, it is needless to say that if the civil court passes a decree in favour of the 2nd Respondent in Suit No. 2126/2009, such decree must be honoured and possession of the disputed property may be restored to him accordingly. | 1[ds]8. With respect to the first issue, it is undisputed that a company has a separate legal personality. Hence even if we accept the Respondents contention that the Appellant company is owned and controlled by the vendors themselves, any orders issued in the civil suit between 2nd Respondent and the vendors would not be binding upon the Appellant company as it is not a party to the suit. It is true that in some cases the Court may pierce the corporate veil and look at the reality behind the entity if it is found that the device of incorporation has been used to perpetrate some illegality or fraud (See Delhi Development Authority v. Skipper Construction Company (P) Ltd., (1996) 4 SCC 622 ). However no such illegality or fraud has been pleaded and proved in the presentany case, it has been settled by this Court in Damodar Das Jain v. Krishna Charan Chakraborti, (1989) 4 SCC 531 , and Atul Mathur (supra) that the pendency of a civil suit in respect of a property, would not bar a complaint Under Section 630 with respect to the same property, even if it is between the same parties, if there is no dispute or no bona fide dispute regarding the companys right over the property. The mere fact that the Accused employee has refuted the companys claim to possession would not make the dispute bonathe present case, we find that there is no bona fide dispute in as much as the 2nd Respondents entire claim to the disputed property is based on an oral agreement/understanding, as to the terms of which no documentary evidence has been produced. Whereas the Appellant company has at least been put into symbolic possession of the property by Clause 6 of the agreement for sale dated 26.4.2008, which 2nd Respondent has notare of the considered opinion that in a case such as the present complaint, where there was only an oral agreement in favour of the Accused employee for purchase of the property, but the civil court has issued a temporary injunction directing status quo, the Accused will nevertheless acquire the right to possess the disputed property lawfully only if he is successful in obtaining a decree in his favour in the civilmere issuance of a temporary injunction by the civil court directing maintenance of status quo in respect of the disputed property does not make the dispute bona fide or bar the companys right to recover the disputed property from the Accused employee Under Section 630 of the 1956 Act. At best, such an injunction would only bar the company from creating any rights in favour of third parties pending disposal of the civil suit. This is because the cause of action in the civil suit is completely different from the question of whether the employee is wrongfully withholding the companys property, which is the issue for consideration in the present criminal proceedings. If prima facie the trial court finds that the company has the right to possess the property, the issuance of a temporary injunction by the civil court cannot be used to defeat the companys lawful right ofon the aforementioned discussion, it can be concluded that the principle laid down in Atul Mathur (supra) would also extend to cases Under Section 630 where a civil court has, in spite of there being no bona fide dispute, issued an order of temporary injunction in respect of the disputed property. In such a case, the pendency of the civil suit and any interim reliefs granted therein would not bar criminal prosecution Under Section 630.Similarly, with respect to the second issue, we are of the considered opinion that where the Magistrate has found that prima facie the company has a right to possession of the disputed property, he may grant interlocutory relief Under Section 630(2) prior to conclusion of the trial Under Section 630(1). Courts have time and again observed that Section 630 has to be given a liberal interpretation so as to facilitate expeditious recovery of the companysgiven that the primary object of Section 630 is to provide a speedy mechanism for restoration of wrongfully withheld property to companies, we find that the provision should be construed as far as possible to facilitate a remedy in favour of the aggrieved company and to prevent the wrongful retention of the property for an unduly long period by theis no stipulation in Section 630(2) that an order for delivery of wrongfully withheld property must be made only after the Accused has been convicted Under Section 630(1). Rather, it says the Court trying the offence may direct the delivery of such property, which indicates that such an order may be passed at any stage by the trial court. This Court in Baldev Krishna Sahi (supra) upon finding that a case Under Section 630(1) was prima facie made out. directed the Petitioner therein to vacate the disputed premises during pendency of the substantive complaint Under Section 630(1). Therefore in the present case, the courts below have not committed any error in allowing the Appellant Companys application Under Section 630(2) during pendency of substantive criminal proceedings.With respect to the third and fourth issues, we find that the High Court has gone against the spirit of the provision, as enunciated by this Court in Baldev Krishna Sahi (supra), by strictly interpreting Section 630 to mean that the Appellant company must have title by way of ownership to the disputed property and that the Accused should have been in possession of the flat as a perquisite of his2nd Respondent has admitted that after the death of Arun Kumar Bajoria, the disputed property was inherited by the vendors who subsequently transferred possession to the Appellant company by the agreement dated 26.4.2008. The 2nd Respondent also handed over the title deeds of the property to the Appellant company. Therefore, till the time that the 2nd Respondent does not prove in the civil suit that the vendors were required to have sold the property to him, it is the company which has the exclusive right to possess the property atit is true that in the majority of cases falling under the ambit of Section 630, it has been that property possessed by the company was allotted to an employee for the purposes of residential accommodation, etc. as an incidence of his service, at the first instance itself. In the present case, the 2nd Respondent has been a director of the company since 1988, and claims to be in permissive possession of the disputed property as per the alleged understanding between him and his relative, the deceased Arun Kumar Bajoria, since 1994. However the company acquired the disputed property only in 2008. Be that as it may, the 2nd Respondent has failed to rebut the fact that as of 26.4.2008 it is the company which has acquired the exclusive right to possess the property, and the company handed over possession to him w.e.f. 1.5.2008 only in his capacity as the director of the company. Whatever may have been the situation prior to 26.4.2008, on and after that date the company became entitled to recover possession of the disputedfind no substance in the 2nd Respondents argument that he was misled into delivering the title documents of the disputed property by his sister-in-law on the ground that they were required for updation of records. The 2nd Respondent, being an office bearer in the company, could have got the records updated on his own or could have delivered it to the vendors, if it was on their insistence that he handed over the documents. However the letter dated 9.6.2008 shows that the title documents were delivered to a representative of the Appellant company. This shows that the 2nd Respondent acknowledged that title was to be transferred to the company vide the agreement dated630 nowhere stipulates that the property should have been allotted by the company to the Accused as a perquisite of service. There may be a number of purposes for which the Accused may be given lawful possession of the companys property during the course of employment for example, for safe custody of the property or for maintenance thereof. The purpose for which and the time at which possession was given is irrelevant. What is sufficient is that the Accused was put into possession of the property in their capacity as an officer/employee of the company and continued to withhold such property without having any independent right, title or interest thereto even after cessation of his employment. As we have found in the discussion supra, mere oral agreement or understanding would not be sufficient to establish such an independent right.Coming to the final issue, Section 397(2) of the Code of Criminal Procedure provides that the High Courts powers of revision shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. Whereas Section 482 of the Code of Criminal Procedure provides that nothing in the Code of Criminal Procedure will limit the High Courts inherent powers to prevent abuse of process or to secure the ends of justice. Hence the High Court may exercise its inherent powers Under Section 482 to set aside an interlocutory order, notwithstanding the bar Under Section 397(2). However it is settled law that this can only be done in exceptionalis, for example, where a criminal proceeding has been initiated illegally, vexatiously or without jurisdiction (See Madhu Limaye v. State of Maharashtra, (1977) 4 SCCthe present case, the order of the Magistrate Under Section 630(2) was an interlocutory relief based on a prima facie assessment of facts and did not conclusively decide the ongoing trial Under Section 630(1). If the Magistrate finds that the Appellant company has been unable to prove that the 2nd Respondent was wrongfully withholding possession of the property, such interlocutory relief shall stand vacated. In light of the above discussion, it is clear that there was no exceptional case of illegality or lack of jurisdiction in the interlocutory order of the lower court calling for the exercise of the inherent powers of the High Court Under Section 482, Code of Criminalwe are in agreement with the High Courts direction that the trial Under Section 630(1) ought to be completed as soon as possible. Further, it is needless to say that if the civil court passes a decree in favour of the 2nd Respondent in Suit No. 2126/2009, such decree must be honoured and possession of the disputed property may be restored to him accordingly. | 1 | 5,060 | 1,912 | ### 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:
enunciated by this Court in Baldev Krishna Sahi (supra), by strictly interpreting Section 630 to mean that the Appellant company must have title by way of ownership to the disputed property and that the Accused should have been in possession of the flat as a perquisite of his service. Section 630 nowhere requires that the company should have title to the property. The emphasis is on whether the Accused has obtained wrongful possession of the property which defeats the companys lawful right of exclusive possession, even though the property as such may not belong to the company but to a third-party landlord or licensor, as was the case in Atul Mathur (supra). The term property of the company has to be construed widely having regard to the beneficial object of the Section (See Kannankandi Gopal Krishna Nair (supra); PV George v. Jayems Engineering Co. (P) Ltd., (1990) 2 Comp LJ 62 (Mad)). The 2nd Respondent has admitted that after the death of Arun Kumar Bajoria, the disputed property was inherited by the vendors who subsequently transferred possession to the Appellant company by the agreement dated 26.4.2008. The 2nd Respondent also handed over the title deeds of the property to the Appellant company. Therefore, till the time that the 2nd Respondent does not prove in the civil suit that the vendors were required to have sold the property to him, it is the company which has the exclusive right to possess the property at present. Farther, it is true that in the majority of cases falling under the ambit of Section 630, it has been that property possessed by the company was allotted to an employee for the purposes of residential accommodation, etc. as an incidence of his service, at the first instance itself. In the present case, the 2nd Respondent has been a director of the company since 1988, and claims to be in permissive possession of the disputed property as per the alleged understanding between him and his relative, the deceased Arun Kumar Bajoria, since 1994. However the company acquired the disputed property only in 2008. Be that as it may, the 2nd Respondent has failed to rebut the fact that as of 26.4.2008 it is the company which has acquired the exclusive right to possess the property, and the company handed over possession to him w.e.f. 1.5.2008 only in his capacity as the director of the company. Whatever may have been the situation prior to 26.4.2008, on and after that date the company became entitled to recover possession of the disputed property. We find no substance in the 2nd Respondents argument that he was misled into delivering the title documents of the disputed property by his sister-in-law on the ground that they were required for updation of records. The 2nd Respondent, being an office bearer in the company, could have got the records updated on his own or could have delivered it to the vendors, if it was on their insistence that he handed over the documents. However the letter dated 9.6.2008 shows that the title documents were delivered to a representative of the Appellant company. This shows that the 2nd Respondent acknowledged that title was to be transferred to the company vide the agreement dated 26.4.2008. Section 630 nowhere stipulates that the property should have been allotted by the company to the Accused as a perquisite of service. There may be a number of purposes for which the Accused may be given lawful possession of the companys property during the course of employment for example, for safe custody of the property or for maintenance thereof. The purpose for which and the time at which possession was given is irrelevant. What is sufficient is that the Accused was put into possession of the property in their capacity as an officer/employee of the company and continued to withhold such property without having any independent right, title or interest thereto even after cessation of his employment. As we have found in the discussion supra, mere oral agreement or understanding would not be sufficient to establish such an independent right. 11. Coming to the final issue, Section 397(2) of the Code of Criminal Procedure provides that the High Courts powers of revision shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. Whereas Section 482 of the Code of Criminal Procedure provides that nothing in the Code of Criminal Procedure will limit the High Courts inherent powers to prevent abuse of process or to secure the ends of justice. Hence the High Court may exercise its inherent powers Under Section 482 to set aside an interlocutory order, notwithstanding the bar Under Section 397(2). However it is settled law that this can only be done in exceptional cases. This is, for example, where a criminal proceeding has been initiated illegally, vexatiously or without jurisdiction (See Madhu Limaye v. State of Maharashtra, (1977) 4 SCC 551). In the present case, the order of the Magistrate Under Section 630(2) was an interlocutory relief based on a prima facie assessment of facts and did not conclusively decide the ongoing trial Under Section 630(1). If the Magistrate finds that the Appellant company has been unable to prove that the 2nd Respondent was wrongfully withholding possession of the property, such interlocutory relief shall stand vacated. In light of the above discussion, it is clear that there was no exceptional case of illegality or lack of jurisdiction in the interlocutory order of the lower court calling for the exercise of the inherent powers of the High Court Under Section 482, Code of Criminal Procedure. However we are in agreement with the High Courts direction that the trial Under Section 630(1) ought to be completed as soon as possible. Further, it is needless to say that if the civil court passes a decree in favour of the 2nd Respondent in Suit No. 2126/2009, such decree must be honoured and possession of the disputed property may be restored to him accordingly.
### Response:
1
### Explanation:
Accused has been convicted Under Section 630(1). Rather, it says the Court trying the offence may direct the delivery of such property, which indicates that such an order may be passed at any stage by the trial court. This Court in Baldev Krishna Sahi (supra) upon finding that a case Under Section 630(1) was prima facie made out. directed the Petitioner therein to vacate the disputed premises during pendency of the substantive complaint Under Section 630(1). Therefore in the present case, the courts below have not committed any error in allowing the Appellant Companys application Under Section 630(2) during pendency of substantive criminal proceedings.With respect to the third and fourth issues, we find that the High Court has gone against the spirit of the provision, as enunciated by this Court in Baldev Krishna Sahi (supra), by strictly interpreting Section 630 to mean that the Appellant company must have title by way of ownership to the disputed property and that the Accused should have been in possession of the flat as a perquisite of his2nd Respondent has admitted that after the death of Arun Kumar Bajoria, the disputed property was inherited by the vendors who subsequently transferred possession to the Appellant company by the agreement dated 26.4.2008. The 2nd Respondent also handed over the title deeds of the property to the Appellant company. Therefore, till the time that the 2nd Respondent does not prove in the civil suit that the vendors were required to have sold the property to him, it is the company which has the exclusive right to possess the property atit is true that in the majority of cases falling under the ambit of Section 630, it has been that property possessed by the company was allotted to an employee for the purposes of residential accommodation, etc. as an incidence of his service, at the first instance itself. In the present case, the 2nd Respondent has been a director of the company since 1988, and claims to be in permissive possession of the disputed property as per the alleged understanding between him and his relative, the deceased Arun Kumar Bajoria, since 1994. However the company acquired the disputed property only in 2008. Be that as it may, the 2nd Respondent has failed to rebut the fact that as of 26.4.2008 it is the company which has acquired the exclusive right to possess the property, and the company handed over possession to him w.e.f. 1.5.2008 only in his capacity as the director of the company. Whatever may have been the situation prior to 26.4.2008, on and after that date the company became entitled to recover possession of the disputedfind no substance in the 2nd Respondents argument that he was misled into delivering the title documents of the disputed property by his sister-in-law on the ground that they were required for updation of records. The 2nd Respondent, being an office bearer in the company, could have got the records updated on his own or could have delivered it to the vendors, if it was on their insistence that he handed over the documents. However the letter dated 9.6.2008 shows that the title documents were delivered to a representative of the Appellant company. This shows that the 2nd Respondent acknowledged that title was to be transferred to the company vide the agreement dated630 nowhere stipulates that the property should have been allotted by the company to the Accused as a perquisite of service. There may be a number of purposes for which the Accused may be given lawful possession of the companys property during the course of employment for example, for safe custody of the property or for maintenance thereof. The purpose for which and the time at which possession was given is irrelevant. What is sufficient is that the Accused was put into possession of the property in their capacity as an officer/employee of the company and continued to withhold such property without having any independent right, title or interest thereto even after cessation of his employment. As we have found in the discussion supra, mere oral agreement or understanding would not be sufficient to establish such an independent right.Coming to the final issue, Section 397(2) of the Code of Criminal Procedure provides that the High Courts powers of revision shall not be exercised in relation to any interlocutory order passed in any appeal, inquiry, trial or other proceeding. Whereas Section 482 of the Code of Criminal Procedure provides that nothing in the Code of Criminal Procedure will limit the High Courts inherent powers to prevent abuse of process or to secure the ends of justice. Hence the High Court may exercise its inherent powers Under Section 482 to set aside an interlocutory order, notwithstanding the bar Under Section 397(2). However it is settled law that this can only be done in exceptionalis, for example, where a criminal proceeding has been initiated illegally, vexatiously or without jurisdiction (See Madhu Limaye v. State of Maharashtra, (1977) 4 SCCthe present case, the order of the Magistrate Under Section 630(2) was an interlocutory relief based on a prima facie assessment of facts and did not conclusively decide the ongoing trial Under Section 630(1). If the Magistrate finds that the Appellant company has been unable to prove that the 2nd Respondent was wrongfully withholding possession of the property, such interlocutory relief shall stand vacated. In light of the above discussion, it is clear that there was no exceptional case of illegality or lack of jurisdiction in the interlocutory order of the lower court calling for the exercise of the inherent powers of the High Court Under Section 482, Code of Criminalwe are in agreement with the High Courts direction that the trial Under Section 630(1) ought to be completed as soon as possible. Further, it is needless to say that if the civil court passes a decree in favour of the 2nd Respondent in Suit No. 2126/2009, such decree must be honoured and possession of the disputed property may be restored to him accordingly.
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Raythara Sahakari Bank Ltd Vs. Chandrakala R. Das | Arijit Pasayat, J. 1. Leave granted. 2. Appellant calls in question legality of the order passed by the National Consumer Disputes Redressal Commission, New Delhi (in short the National Commission) summarily dismissing the Revision Petition filed by the appellant-Bank observing that the short order passed by the State Consumer Dispute Redressal Commission, Bangalore, Karnataka (in short the State Commission) is absolutely clear and needs no interference. 3. Background facts giving rise to the present appeal in a nutshell are as follows: 4. The respondent, (hereinafter referred to as the complainant) availed jewel loans from the appellant-Bank by pledging gold ornaments on different dates in August 2000, February 2001, April 2001, May 2001 and June 2001. Appellant-Bank insured gold ornaments kept in the locked iron safe of the Bank for a sum of Rs.25,00,000/- with United India Insurance Company Limited. On 4.8.2001 a huge quantity of gold ornaments including those pledged by the complainant with the Bank, were stolen. Information was lodged at the police station and a criminal trial is pending. On 1.10.2003 the appellant-Bank submitted its claim to the Insurance Company but the same was repudiated. On 17.1.2004, the appellant-Bank, with a view to return value of the gold ornaments of the pledges convened a meeting where more than 400 persons, who were jewel loan borrowers and authorities of the cooperative societies were present. It was resolved that each person who had pledged ornaments shall be paid at the rate of Rs.410/- per gram which was the prevailing market rate at the time of theft. It was also resolved that no interest shall be charged on all such jewel loans. Complainant issued a notice to the Bank demanding higher value for the gold ornament pledged. Appellant-Bank requested the complainant to accept the rate fixed on the basis of Resolution dated 17.1.2004. On 8.3.2004 the complainant filed a complaint before the District Consumer Disputes Redressal Forum, Udupi (in short District Forum) with a prayer for a direction to the appellant-Bank to pay the entire amount with upto date interest in respect of six jewel loan accounts and to pay present market rate of gold at the rate of Rs.573/- per gram along with making charges and a compensation for non-delivery of gold ornaments amounting to Rs.25,000/- and litigation expenses of Rs.10,000/-. On 28.5.2004, the appellant-Bank filed its statement of defence and denied its liability to pay the amount with interest. There was no default of service and non-delivery of the jewel was on account of the admitted theft in the Bank for which criminal case has been instituted and insurance claim has been lodged. 5. Subsequently, the appellant-Bank filed an affidavit before the District Forum stating that it is willing to pay at the rate fixed for all the jewel loan borrowers. The District Forum held that the value of the gold was to be computed at the rate of Rs.573/- per gram which was the claim, though the price of gold prevailing on the date of order was Rs.593/- per gram. Accordingly, it was held that value of gold payable was Rs.67,041/-. Appellant preferred an appeal before the State Forum which by a short order held that there was no illegality or irregularity in the order of the District Forum and if there was any insurance policy covering the theft, it was open to the appellant-Bank to lodge a claim and pursue the remedy available. The revision petition filed before the National Commission as noted supra was dismissed. 6. In support of the appeal, learned counsel for the appellant submitted that neither the State Commission nor the National Commission considered the effect of the decision taken on 17.1.2004 in a meeting where more than 400 borrowers had accepted the rate. No other complaint has been lodged, but taking advantage of the order passed by the District Forum as upheld by the State Commission and the National Commission, large number of people are trying to reopen the matter. 7. Learned counsel for the respondent supported the order of the Forums and submitted that a realistic view has been taken by the District Forum which was upheld by the State Commission and the National Commission. 8. We find that all through stand of the appellant-Bank has been that all the borrowers except the respondent have accepted the rate arrived at consensually at the meeting. The complainant did not dispute that such a decision had been taken. It is not clear as to whether the complainant had attended the meeting which was convened and where all the borrowers were given the chance to participate. The decision in the meeting undisputedly was to the effect that the value of gold on the date of theft was to be paid. It appears that there was no other complaint except the one under consideration. Both the State Commission and the National Commission passed cryptic orders and did not discuss even the various stands taken by the appellant. It was open to the State Commission and the National Commission to consider the stand relating to acceptance of rate fixed at the meeting and its effect on the complainants claim. But, that has not been done. We, therefore, set aside the order of the National Commission and remit the matter to it for fresh consideration for the purpose of considering the effect of the decision taken on 17.1.2004 where about 400 similarly situated borrowers had accepted the rate. We make it clear that we have not expressed any opinion on the merits of the case. | 1[ds]8. We find that all through stand of the appellant-Bank has been that all the borrowers except the respondent have accepted the rate arrived at consensually at the meeting. The complainant did not dispute that such a decision had been taken. It is not clear as to whether the complainant had attended the meeting which was convened and where all the borrowers were given the chance to participate. The decision in the meeting undisputedly was to the effect that the value of gold on the date of theft was to be paid. It appears that there was no other complaint except the one under consideration. Both the State Commission and the National Commission passed cryptic orders and did not discuss even the various stands taken by the appellant. It was open to the State Commission and the National Commission to consider the stand relating to acceptance of rate fixed at the meeting and its effect on the complainants claim. But, that has not been done. We, therefore, set aside the order of the National Commission and remit the matter to it for fresh consideration for the purpose of considering the effect of the decision taken on 17.1.2004 where about 400 similarly situated borrowers had accepted the rate. We make it clear that we have not expressed any opinion on the merits of the case | 1 | 993 | 241 | ### Instruction:
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Arijit Pasayat, J. 1. Leave granted. 2. Appellant calls in question legality of the order passed by the National Consumer Disputes Redressal Commission, New Delhi (in short the National Commission) summarily dismissing the Revision Petition filed by the appellant-Bank observing that the short order passed by the State Consumer Dispute Redressal Commission, Bangalore, Karnataka (in short the State Commission) is absolutely clear and needs no interference. 3. Background facts giving rise to the present appeal in a nutshell are as follows: 4. The respondent, (hereinafter referred to as the complainant) availed jewel loans from the appellant-Bank by pledging gold ornaments on different dates in August 2000, February 2001, April 2001, May 2001 and June 2001. Appellant-Bank insured gold ornaments kept in the locked iron safe of the Bank for a sum of Rs.25,00,000/- with United India Insurance Company Limited. On 4.8.2001 a huge quantity of gold ornaments including those pledged by the complainant with the Bank, were stolen. Information was lodged at the police station and a criminal trial is pending. On 1.10.2003 the appellant-Bank submitted its claim to the Insurance Company but the same was repudiated. On 17.1.2004, the appellant-Bank, with a view to return value of the gold ornaments of the pledges convened a meeting where more than 400 persons, who were jewel loan borrowers and authorities of the cooperative societies were present. It was resolved that each person who had pledged ornaments shall be paid at the rate of Rs.410/- per gram which was the prevailing market rate at the time of theft. It was also resolved that no interest shall be charged on all such jewel loans. Complainant issued a notice to the Bank demanding higher value for the gold ornament pledged. Appellant-Bank requested the complainant to accept the rate fixed on the basis of Resolution dated 17.1.2004. On 8.3.2004 the complainant filed a complaint before the District Consumer Disputes Redressal Forum, Udupi (in short District Forum) with a prayer for a direction to the appellant-Bank to pay the entire amount with upto date interest in respect of six jewel loan accounts and to pay present market rate of gold at the rate of Rs.573/- per gram along with making charges and a compensation for non-delivery of gold ornaments amounting to Rs.25,000/- and litigation expenses of Rs.10,000/-. On 28.5.2004, the appellant-Bank filed its statement of defence and denied its liability to pay the amount with interest. There was no default of service and non-delivery of the jewel was on account of the admitted theft in the Bank for which criminal case has been instituted and insurance claim has been lodged. 5. Subsequently, the appellant-Bank filed an affidavit before the District Forum stating that it is willing to pay at the rate fixed for all the jewel loan borrowers. The District Forum held that the value of the gold was to be computed at the rate of Rs.573/- per gram which was the claim, though the price of gold prevailing on the date of order was Rs.593/- per gram. Accordingly, it was held that value of gold payable was Rs.67,041/-. Appellant preferred an appeal before the State Forum which by a short order held that there was no illegality or irregularity in the order of the District Forum and if there was any insurance policy covering the theft, it was open to the appellant-Bank to lodge a claim and pursue the remedy available. The revision petition filed before the National Commission as noted supra was dismissed. 6. In support of the appeal, learned counsel for the appellant submitted that neither the State Commission nor the National Commission considered the effect of the decision taken on 17.1.2004 in a meeting where more than 400 borrowers had accepted the rate. No other complaint has been lodged, but taking advantage of the order passed by the District Forum as upheld by the State Commission and the National Commission, large number of people are trying to reopen the matter. 7. Learned counsel for the respondent supported the order of the Forums and submitted that a realistic view has been taken by the District Forum which was upheld by the State Commission and the National Commission. 8. We find that all through stand of the appellant-Bank has been that all the borrowers except the respondent have accepted the rate arrived at consensually at the meeting. The complainant did not dispute that such a decision had been taken. It is not clear as to whether the complainant had attended the meeting which was convened and where all the borrowers were given the chance to participate. The decision in the meeting undisputedly was to the effect that the value of gold on the date of theft was to be paid. It appears that there was no other complaint except the one under consideration. Both the State Commission and the National Commission passed cryptic orders and did not discuss even the various stands taken by the appellant. It was open to the State Commission and the National Commission to consider the stand relating to acceptance of rate fixed at the meeting and its effect on the complainants claim. But, that has not been done. We, therefore, set aside the order of the National Commission and remit the matter to it for fresh consideration for the purpose of considering the effect of the decision taken on 17.1.2004 where about 400 similarly situated borrowers had accepted the rate. We make it clear that we have not expressed any opinion on the merits of the case.
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8. We find that all through stand of the appellant-Bank has been that all the borrowers except the respondent have accepted the rate arrived at consensually at the meeting. The complainant did not dispute that such a decision had been taken. It is not clear as to whether the complainant had attended the meeting which was convened and where all the borrowers were given the chance to participate. The decision in the meeting undisputedly was to the effect that the value of gold on the date of theft was to be paid. It appears that there was no other complaint except the one under consideration. Both the State Commission and the National Commission passed cryptic orders and did not discuss even the various stands taken by the appellant. It was open to the State Commission and the National Commission to consider the stand relating to acceptance of rate fixed at the meeting and its effect on the complainants claim. But, that has not been done. We, therefore, set aside the order of the National Commission and remit the matter to it for fresh consideration for the purpose of considering the effect of the decision taken on 17.1.2004 where about 400 similarly situated borrowers had accepted the rate. We make it clear that we have not expressed any opinion on the merits of the case
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State of Jharkhand & Others Vs. M/s. Hindustan Construction Co. Ltd | to punish for contempt of itself. Articles 131, 132, 133, 134, 135, 137, 138 and 139 confer different jurisdictions on the Supreme Court while Articles 225, 226, 227, 228 and 230 deal with conferment of jurisdiction on the High Courts. Instances of conferment of jurisdiction by specific law are very common. The laws of procedure both criminal and civil confer jurisdiction on different courts. Special jurisdiction is conferred by special statute. It is thus clear that jurisdiction can be exercised only when provided lower either in the Constitution or in the laws made by the legislature. Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts. In support of judicial opinion for this view reference may be made to the Permanent Edition of Words und Phrases Vol. 23-A at page 164. It would be appropriate to refer to two small passages occurring at pages 174 and 175 of the volume. At page 174, referring to the decision in Carlile v. National Oil & Development Co. it has been stated. Jurisdiction is the authority to hear and determine, and in order that it may exist the following are essential: (1) A court created by law, organized and sitting; (2) authority given to it by law to hear and determine causes of the kind in question; (3) power given to it by law to render a judgment such as it assumes to render; (4) authority over the parties to the case if the judgment is to bind them personally as a judgment in personam, which is acquired over the plaintiff by his appearance and submission of the matter to the court, and is acquired over the defendant by his voluntary appearance, or by service of process on him; (5) authority over the thing adjudicated upon its being located within the courts territory, and by actually seizing it if liable to be carried away; (6) authority to decide the question involved, which is acquired by the question being submitted to it by the parties for decision. 56. In Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and others, (2003) 6 SCC 659 , it has been expressed that the right of appeal is statutory and when conferred by a statute, it becomes a vested right. Jurisdiction vested in an appellate court in a hierarchical system is to rectify the errors and that is why it is called error jurisdiction as has been held in Vikas Yadav v. State of Uttar Pradesh and others, (2016) 9 SCC 541. A similar view has been expressed in Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation, (2009) 8 SCC 646. 57. In Guru Nanak Foundation (supra), as noted earlier, the two-Judge Bench has distinguished the principle laid down in Garikapati Veeraya (supra) by stating that the door of this Court is not closed to the appellant. In fact, as has been stated, the door is being held wide ajar for him to raise all contentions which one can raise in a proceeding in an originating summons. The aforesaid statement of law is not correct because the superior court is not expected in law to assume jurisdiction on the foundation that it is a higher court and further opining that all contentions are open. The legislature, in its wisdom, has provided an appeal under Section 39 of the Act. Solely because a superior court appoints the arbitrator or issues directions or has retained some control over the arbitrator by requiring him to file the award in this Court, it cannot be regarded as a court of first instance as that would go contrary to the definition of the term `court as used in the dictionary clause as well as in Section 31(4). Simply put, the principle is not acceptable because this Court cannot curtail the right of a litigant to prefer an appeal by stating that the doors are open to this Court and to consider it as if it is an original court. Original jurisdiction in this Court has to be vested in law. Unless it is so vested and the Court assumes, the court really scuttles the forum that has been provided by the legislature to a litigant. That apart, as we see, the said principle is also contrary to what has been stated in Kumbha Mawji. It is worthy to note that this Court may make a reference to an arbitrator on consent but to hold it as a legal principle that it can also entertain objections as the original court will invite a fundamental fallacy pertaining to jurisdiction. 58. In Surjit Singh Atwal (supra), a three-Judge Bench had opined that applications under Section 8 and under Section 20, though clearly applications anterior to the reference, lead to a reference. Such applications are undoubtedly applications in the matter of a reference and may fall within the purview of Section 31(4) of the Act even though these applications are made before any reference has taken place. The purpose of referring to the said authority is that the principle stated in Kumbha Mawji (supra) has been elaborated in Surjit Singh Atwal (supra). It is to be borne in mind that the Court that has jurisdiction to entertain the first application is determinative by the fact as to which Court has the jurisdiction and retains the jurisdiction. In this regard, an example may be cited. When arbitrator is not appointed under the Act and the matter is challenged before the High Court or, for that matter, the Supreme Court and, eventually, an arbitrator is appointed and some directions are issued, it will be inappropriate and inapposite to say that the superior court has the jurisdiction to deal with the objections filed under Sections 30 and 33 of the Act. The jurisdiction of a Court conferred under a statute cannot be allowed to shift or become flexible because of a superior courts interference in the matter in a different manner. | 1[ds]Section 2 is the dictionary clause. It commences with the words unless there is anything repugnant in the subject or17. In Guru Nanak Foundation (supra) case, since differences arose between the parties, an application was filed before the High Court under Section 20 of the Act which appointed retired Chief Engineer as the sole arbitrator to whom the reference was made. When the reference was pending, an application was moved before the Delhi High Court for removal of the arbitrator and the High Court thought it appropriate to reject the application. Guru Nanak Foundation assailed the soundness of the order passed by the High Court and this Court removed the arbitrator and appointed another arbitrator and directed the arbitrator to commence the proceedings within 15 days and to dispose of the same as expeditiously as possible. After the newly appointed arbitrator commenced the proceedings, it directed the parties to file their pleadings stating that he had desired to begin the arbitration proceedings afresh which impliedly meant that the pleadings filed before the former arbitrator and the evidence led before him were to be ignored. That led the first respondent therein to move an application before this Court seeking the relief that the learned arbitrator should commence the arbitration proceedings from the stage where it was left by the previous arbitrator. After hearing both the parties, the Court directed thus:-CMP No. 1088 of 1977: We have heard counsel on both sides. It is absolutely plain that the new arbitrator in tune with the spirit of the Order passed by this Court should proceed with speed to conclude the arbitration proceedings. In the earlier directions by this Court it had been stated that the proceedings should commence within 15 days and that the arbitrator `shall try to dispose of the same as expeditiously as possible. We direct the arbitrator, bearing in mind the concurrence of the counsel on both sides, that he shall conclude the proceedings within four months from todayA grievance is made that the arbitrator is calling for fresh pleadings which may perhaps be otiose since pleadings have already been filed by both sides before the earlier arbitrator Mr Nanda. If any supplementary statement is to be filed it is certainly open to the parties to persuade the arbitrator to receive them in one week from today. The arbitrator will remember that already some evidence has been collected and he is only to consider and conclude. With this directive we dispose of the application.. After the award was passed, the arbitrator approached the Registry of this Court for filing of the award and he was advised by an officer of this Court that the award should be filed before the Delhi High Court. The arbitrator filed the award in Delhi High Court. At that juncture, the respondent therein filed the petition seeking a declaration that the award was required to be filed before the Supreme Court in view of the provisions contained in Section 14(2) read with Section 31(4) of the Act. It was contended before the High Court that as the reference was made to the arbitrator by the Supreme Court and further directions were given, this Court was in seisin of the matter and it alone had the jurisdiction to entertain the award in view of the provisions of Section 31(4) of the Act. The matter came to be challenged before this Court and the proceedings before the High Court were stayed19. The two-Judge Bench, after narrating the facts, posed the following question:-The narrow question in this case therefore is: in view of the circumstances herein delineated, which is the court which would have jurisdiction to entertain the Award; in other words which is the court having jurisdiction in which the Award should be filed by the arbitrator?. Analysing the meaning of the expression Court as engrafted under Section 2(c) and keeping in view the words occurring in the beginning of Section 2, the Court stated thus:-13. The dictionary meaning of expression court in Section 2(c) has to be applied wherever that word occurs in the Act, but with this limitation that if there is anything repugnant in the subject or context, the dictionary meaning may not be applied to the expression court. Assuming that there is nothing repugnant in the subject or context the expression court in the Act would mean that civil court which would have jurisdiction to decide the question forming the subject-matter of the reference if the same had been the subject-matter of a suit but does not include a Small Cause Court though it is a civil court except for the arbitration proceedings under Section 21. Section 14, sub-section (2) provides for filing of the Award in the court and in view of the definition of the expression court the arbitrator will have to file the Award in that court which would have jurisdiction to entertain the suit forming the subject-matter of reference.. As the discussion in the judgment would show, the Court observed that there was some controversy between the High Courts whether the expression Court would comprehend appellate court in which the award can be filed but it was finally resolved in the decision in CT. A. CT. Nachiappa Chettiar (supra) which held that the expressions suit and Court in Section 21 of the Act would also comprehend proceedings in appeal and appellate court respectively because the expression Court in Section 21 includes the appellate court proceedings which are generally recognized as continuation of the suit, and the word suit would include such appellate proceedings22. After so stating, Guru Nanak Foundation (supra) proceeded to advert to Section 31(4) of the Act and, in that context, held that the non-obstante clause excludes anything anywhere contained in the whole Act or in any other law for the time being in force if it is contrary to or inconsistent with the substantive provision contained in sub-section (4). It further ruled that to that extent it carves out an exception to the general question of jurisdiction of the court in which Award may be filed elsewhere provided in the Act in respect of the proceedings referred to in sub-section (4). The provision contained in sub-section (4) will have an overriding effect in relation to the filing of the Award if the conditions therein prescribed are satisfied. If those conditions are satisfied, the court other than the one envisaged in Section 14(2) or Section 31(1) will be the court in which Award will have to be filed. Elaborating the effect of the non-obstante clause in sub-section (4) of Section 31, it has been opined that Sub-section (4) invests exclusive jurisdiction in the court, to which an application has been made in any reference and that court is competent to entertain as the court having jurisdiction over the arbitration proceedings and all subsequent applications arising out of reference and the arbitration proceedings shall have to be made in that court and in no other court. Therefore, sub-section (4) not only confers exclusive jurisdiction on the court to which an application is made in any reference but simultaneously ousts the jurisdiction of any other court which may as well have jurisdiction in this behalf. Illustrating further, the Court held that if an Award was required to be filed under Section 14(2) read with Section 31(1) in any particular court as being the court in which a suit touching the subject-matter of Award would have been required to be filed, but if any application in the reference under the Act has been filed in some other court which was competent to entertain that application, then to the exclusion of the first mentioned court the latter court alone, in view of the overriding effect of the provision contained in Section 31(4), will have jurisdiction to entertain the Award and the Award will have to be filed in that court alone and no other court will have jurisdiction to entertain the same23. After so stating, the Court observed that the provision contained in sub-section (2) of Section 14 will neither be rendered otiose nor stand in disharmony with the construction that has been placed by it on sub-section (4) of Section 31 because the expression Court as defined in Section 2(c) needs to be adhered to unless there is anything repugnant in the subject or context in which it is used. It is further opined that on a pure grammatical construction as well as a harmonious and overall view of the various provisions contained in the Act, it is quite clear that ordinarily the Court will have jurisdiction to deal with the questions arising under the Act, except the one in Chapter IV in which the suit with regard to the dispute involved in the arbitration would be required to be filed under the provisions of the Code of Civil Procedure. Elucidating further, the two-Judge Bench ruled that when an application is made in any reference to a court competent to entertain it, that court will have jurisdiction over the arbitration proceeding and all subsequent applications arising out of the reference and the arbitration proceedings shall be made to that court alone and in no other court. Analysing the facts, the learned Judges expressed that this Court had complete control over the proceedings before the arbitrator. In view of the fact that the reference was made by this Court and further directions were issued with regard to the manner and method of conducting the arbitrations proceedings and fixing the time for completion of the same, this Court alone had the jurisdiction to entertain the award. The two-Judge Bench placed reliance on Saith and Skelton (supra) and expressed that both on principle and on authority, this Court alone had the jurisdiction for filing of the award.Explaining Kumbha Mawjis case, the two-Judge Bench stated that in the said case a contention was raised before this Court that Section 31(4) is merely confined to applications during the course of pendency of a reference to arbitration and this Court after analysing the scheme of Section 31, held that there is no conceivable reason why the legislature should have intended to confine the operation of sub-section (4) only to applications made during the pendency of an arbitration, if as is contended, the phrase in any reference is to be taken as meaning in the course of a reference. Ultimately this Court held that the phrase in any reference used in sub-section (4) of Section 31 means in the course of any reference, and concluded that Section 31, sub-section (4) would vest exclusive jurisdiction in the court in which an application for the filing of an Award has been first made under Section 14 of the Act. After so stating, the learned Judges proceeded to observe:-22. ... We fail to see how this decision would help in answering the contention canvassed on behalf of the appellant. In fact the decision in Kumbha Mawji case was further explained by this Court in Union of India v. Surjeet Singh Atwal, 1969 (2) SCC 211. The contention in the latter case was whether an application under Section 34 of the Act for stay of the suit was an application made in a reference within the meaning of Section 31(4) of the Act and, therefore, subsequent application can only be made to that court in which stay of the suit was prayed for. In support of this contention reliance was placed on Kumbha Mawji case urging that the expression in any reference under Section 31(4) of the Act is comprehensive enough to cover application first made after the arbitration is completed and a final Award made and the sub-section is not confined to applications made during the pendency of the arbitration proceedings. Negativing this contention this Court held that accepting the wider meaning given to the phrase in any reference as implying in the course of a reference an application under Section 34 is not an application in a reference within the meaning of the phrase as elaborated in Kumbha Mawji case. The Court took notice of various sections under which an application can be made before a reference has been made. Therefore, the decision in Kumbha Mawji case would not mean that a proceeding earlier to the reference in a court would clothe that court with such jurisdiction as to render the provision contained in Section 31(4) otiose.e aforesaid analysis only shows that the two-Judge Bench expressed the opinion that the principles stated in Kumbha Mawji would not help in answering the contention canvassed on behalf of the appellant therein and further stated that the said authority would not mean that a proceeding earlier to the reference in a court would clothe that court with such jurisdiction as to render the provision contained in Section 31(4) otiose.25. A further contention was also advanced that if this Court were to arrogate the jurisdiction to itself by putting such a construction of sub-section (4) of Section 31, it would deprive the grieved party of its valuable right to prefer an appeal and approach the Court under Article 136 of the Constitution. Repelling the said submission, the Court referred to SaithSkelton (P) Ltd. case and opined that in an identical situation this Court held that the award has to be filed in this Court alone which would certainly negative an opportunity to appeal because this is the final court. The two-Judge Bench further opined that conceding as held by this Court in Garikapati Veeraya (supra) that the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences, right is not denied or defeated because the highest court to which one can come by way of appeal will entertain all contentions that may have to be canvassed on behalf of the appellant. Thereafter it has been stated:-23. ... The door of this Court is not being closed to the appellant. In fact the door is being held wide ajar for him to raise all contentions which one can raise in a proceeding in an originating summons. Therefore, we see no merit in this contention and it must be rejected.. We have extracted the aforesaid passage to highlight how the principle laid down in Kumbha Mawji has been distinguished in the case of Guru Nanak Foundation (supra). To appreciate the reasoning, it is necessary to analyse the facts and the principles stated in Kumbha Mawji (supra). In the said case, the Court stated that the three questions which arose for consideration were:-(1) Whether the appellant had the authority of the umpire to file the awards on his behalf into court in terms of Section 14(2) of the Arbitration Act;(2) Whether in view of sub-section (3) of Section 31 of the Act can it be said that the awards were filed in the Calcutta High Court earlier than in the Gauhati court; and(3) Whether the scope of Section 31 sub-section (4) of the Act is limited to applications under the Act during the pendency of the arbitration proceedings only.. So far as the first question is concerned, we need not dwell upon the same. What is important to note is how the Court dealt with the third question and for the said purpose, it is necessary to apprise ourselves about the facts involved in the said case. The respondent in the said case had filed an application under Section 14(2) of the Act before the Subordinate Court of Gauhati in Assam to the effect that the umpire be directed to file both the awards in the Court. A week after the respondent made the first application in the Gauhati Court, the solicitors for the appellant therein sent a letter to the Registrar of the High Court of Calcutta with the two awards and requested for issue of notices thereon. After some correspondence between the Deputy Registrar and solicitors, a direction was issued to serve the awards on the parties and fix a date for determination upon the said awards by the Commercial Judge of the Court. The three-Judge Bench took note of the fact that in respect of the same awards, proceedings were initiated purporting to be one under Section 14(2) of the Act simultaneously filed in the Subordinate Court of Gauhati in Assam as well as on the original side of the High Court of Calcutta. The contention was raised by the respondent objecting to the jurisdiction of the Calcutta Court and to the validity of the awards. Learned single Judge of the High Court overruled the objection raised by the respondent and passed judgment on the awards. On appeal therefrom to the Division Bench, the learned Judges differed with the judgment of the learned single Judge by opining that there had been no proper application under Section 14(2) of the Act before the High Court of Calcutta and, consequently, it had no jurisdiction to deal with the matter28. While dealing with the appeals, this Court opined that under Section 31(1) of the Act an award may be filed in any court having jurisdiction in the matter to which the reference relates and in the said case, reference arose out of a contract which was entered into at Calcutta and had to be performed in Assam and, therefore, Gauhati Court as well as Calcutta Court admittedly had jurisdiction over the subject matter of the reference. It took note of the submission raised by the Union of India that an application to Gauhati Court was made earlier than the application preferred to Calcutta High Court and, therefore, the Calcutta High Court had no jurisdiction. Learned single Judge was of the opinion that Section 31(4) related only to applications made during the pendency of a reference to arbitration and not to applications made subsequent to the making of an award. According to the learned single Judge, irrespective of applications for filing an award, the exclusive jurisdiction was determined with reference to the question as to which was the competent court in which the award was, in fact, first filed under sub-section (2) of Section 14, (as distinct from when the application for the filing of the award was first presented). In this background, interpreting Section 31(3) of the Act, the Court held that the Gauhati Court alone had the jurisdiction. In respect of the third question which pertains to sub-section (4) of Section 31 of the Act, the Court, after reproducing the provisions, opined:-11. Sub-section (1) relates to the question as to where a completed award has to be filed, and prescribes the local jurisdiction for that purpose. Sub-section (2) deals with the ambit of the exercise of that jurisdiction, and declares it to be exclusive by saying that all questions regarding the validity, effect or existence of an award or arbitration agreement between the parties to the agreement or persons claiming under them shall be decided by the court in which the award under the agreement has been, or may be, filed and by no other court. Sub-section (3) is intended to provide that all applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings are to be made only in one court, and lays on the concerned party the obligation to do so. Then comes sub-section (4), the object of which apparently is to go further than sub-section (3), that is, not merely casting on the party concerned an obligation to file all applications in one court but vesting exclusive jurisdiction for such applications in the court in which the first application has been already made12. Thus it will be seen on a comprehensive view of Section 31 that while the first sub-section determines the jurisdiction of the court in which an award can be filed, sub-sections (2), (3) and (4) are intended to make that jurisdiction effective in three different ways, (1) by vesting in one court the authority to deal with all questions regarding the validity, effect or existence of an award or an arbitration agreement, (2) by casting on the persons concerned the obligation to file all applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings in one court, and (3) by vesting exclusive jurisdiction in the court in which the first application relating to the matter is filed. The context, therefore, of sub-section (4) would seem to indicate that the sub-section was not meant to be confined to applications made during the pendency of an arbitration. The necessity for clothing a single court with effective and exclusive jurisdiction, and to bring about by the combined operation of these three provisions the avoidance of conflict and scramble is equally essential whether the question arises during the pendency of the arbitration or after the arbitration is completed or before the arbitration is commenced. There is no conceivable reason why the legislature should have intended to confine the operation of sub-section (4) only to applications made during the pendency of an arbitration, if as is contended, the phrase in any reference is to be taken as meaning in the course of a reference[Underlining is ours]. Further analyzing the scheme of the Act and various categories of arbitration, the Court held:-13. ... Indeed, having regard to the wide language employed in these sub-sections it has been assumed that sub-sections (2) and (3) cover all three classes in all their stages. If so, is there any sufficient reason to think that sub-section (4) was meant to have a very restricted operation? On the view of this sub-section suggested for the appellant, not only would an application made after the award was pronounced be excluded from sub-section (4) but also an application made before the commencement of the arbitration i.e. for the filing of an agreement of reference and for a direction thereupon. It must be remembered that Section 31 is one of the group of sections headed General which by virtue of Section 26 are applicable to all arbitrations. Unless therefore the wording in sub-section (4) of Section 31 is so compelling as to confine the scope thereof to applications during the pendency of an arbitration, such a limited construction must be rejected.. Explicating further, the three-Judge Bench stated:-14. As already stated, the entire basis of the limited construction is the meaning of the phrase in any reference used in sub-section (4) as meaning in the course of any reference. But such a connotation thereof is not in any ordinary sense compelling. The preposition in is used in various contexts and is capable of conveying various shades of meaning. In the Oxford English Dictionary one of the shades of meaning of this preposition is Expressing reference or relation to something; in reference or regard to; in the case of, in the matter, affair, or province of. Used especially with the sphere or department in relation or reference to which an attribute or quality is predicatedIn the context of Section 31 sub-section (4), it is reasonable to think that the phrase in any reference means in the matter of a reference. The word reference having been defined in the Act as reference to arbitration, the phrase in a reference would mean in the matter of a reference to arbitration. The phrase in a reference is, therefore, comprehensive enough to cover also an application first made after the arbitration is completed and a final award is made, and in our opinion that is the correct construction thereof in the context. We are, therefore, of the opinion that Section 31(4) would vest exclusive jurisdiction in the court in which an application for the filing of an award has been first made under Section 14 of the Act.In the said case, the three-Judge Bench was dealing with the issue whether the application made by the appellant therein under Section 34 of the Act was an application in a reference within the meaning of Section 31(4) of the Act. Placing reliance on Kumbha Mawji, the Court held:-5. ... There are different sections in the Arbitration Act whereby an application is to be made even before any reference has been made. Section 8 for instance, provides for an application to invoke the power of the Court, when the parties fail to concur in the appointment of an arbitrator to whom the reference can be made. So also Section 20 provides for an application to file the arbitration agreement in court so that an order of reference to an arbitrator can be made. These are clearly applications anterior to the reference but they lead to a reference. Such applications are undoubtedly applications in the matter of a reference and may fall within the purview of Section 31(4) of the Act even though these applications are made before any reference has taken place. But an application under Section 34 is clearly not an application belonging to the same category. It has nothing to do with any reference. It is only intended to make an arbitration agreement effective and prevent a party from going to Court contrary to his own agreement that the dispute is to be adjudicated by a private tribunal.6. We do not, therefore, consider that an application for stay of suit under Section 34 is an application in a reference even within the wider meaning given to that phrase by this Court in Kumbha Mawji case. The second condition imposed by Section 31(4) is that the application for stay must be made to a Court competent to entertain it. It should be noticed that in Section 34 the expression judicial authority is used. The section provides for an application to a judicial authority before whom a legal proceeding is pending for the stay of that proceeding. An application for stay of legal proceeding to a judicial authority before whom it is pending is an application under the Arbitration Act to a judicial authority competent to entertain it. But the judicial authority need not necessarily be a court competent under Section 2(c) to decide the question forming the subject-matter of the reference. A party to an arbitration agreement may choose to file a suit in a court which has no jurisdiction to go into the matter at all and merely because the defendant in such a suit has to make an application to that Court under Section 34 of the Act for the stay of the suit it cannot be said that the Court which otherwise has no jurisdiction in the matter becomes a Court within the meaning of Section 2(c) of the Act. The view that we have expressed is borne out by the decisions of the Calcutta High Court in Choteylal Shamlal v. Cooch Behar Oil Mills Ltd., ILR (1951) Cal 418; Brittannia BuildingIron Co. Ltd. v. Gobinda Chandra Bhattacharya, 64 CWN 325 and Basanti Cotton Mills Ltd. v. Dhingra Brothers, AIR 1949 Cal 684 .. From the aforesaid two judgments, it is crystal clear that reference has been given a wider meaning in Kumbha Mawji and the same has been followed in Surjeet Singh Atwal (supra). In Guru Nanak Foundation (supra), the two-Judge Bench distinguished the decision in Kumbha Mawji stating that the ratio in the earlier case would not mean that a proceeding earlier to the reference in a court would clothe that court with such jurisdiction as to render the provision contained in Section 31(4) otiose. We shall refer to the aforesaid principle slightly at a later stage. Prior to that, we would like to refer to certain other pronouncements wherein it has been held that the Supreme Court alone has jurisdiction if it had control over the proceedings. We have earlier referred to Saith and Skelton (supra). Mr. Viswanathan, learned senior counsel, has drawn inspiration from Nav Bharat Construction Company (supra) and Burn Standard Co. Ltd. (supra). In Burn Standard Co. Ltd., the three-Judge Bench referred to the order passed by this Court wherein directions were issued that the arbitrator shall file the award in this Court and any application which may become necessary to be filed during or after the conclusion of the arbitration proceedings shall be filed only in this Court and, accordingly, it directed that the objection petition under Section 34 could have been filed only in this Court. This order was passed in the context of Section 34 of the 1996 Act. As we notice from the said order, no independent reasons have been ascribed but the order has been passed solely on the basis of an earlier order.33. At this juncture, we think it apt to immediately refer to the recent decision in Associated Contractors (supra). The three-Judge Bench was dealing with the meaning of Court under Section 2(1)(e) of the 1996 Act. Answering the reference, the three-Judge Bench referred to Section 2(1)(e) and Section 42 of the 1996 Act and in that context, it has held:-20. As noted above, the definition of court in Section 2(1)(e) is materially different from its predecessor contained in Section 2(c) of the 1940 Act. There are a variety of reasons as to why the Supreme Court cannot possibly be considered to be court within the meaning of Section 2(1)(e) even if it retains seisin over the arbitral proceedings. Firstly, as noted above, the definition is exhaustive and recognizes only one of two possible courts that could be court for the purpose of Section 2(1)(e). Secondly, under the 1940 Act, the expression civil court has been held to be wide enough to include an appellate court and, therefore would include the Supreme Court as was held in the two judgments aforementioned under the 1940 Act. Even though this proposition itself is open to doubt, as the Supreme Court exercising jurisdiction under Article 136 is not an ordinary appellate court, suffice it to say that even this reason does not obtain under the present definition, which speaks of either the Principal Civil Court or the High Court exercising original jurisdiction. Thirdly, if an application would have to be preferred to the Supreme Court directly, the appeal that is available so far as applications under Sections 9 and 34 are concerned, provided for under Section 37 of the Act, would not be available. Any further appeal to the Supreme Court under Article 136 would also not be available. The only other argument that could possibly be made is that all definition sections are subject to context to the contrary. The context of Section 42 does not in any manner lead to a conclusion that the word court in Section 42 should be construed otherwise than as defined. The context of Section 42 is merely to see that one court alone shall have jurisdiction over all applications with respect to arbitration agreements which context does not in any manner enable the Supreme Court to become a court within the meaning of Section 42. It has aptly been stated that the rule of forum conveniens is expressly excluded by Section 42 see JSW Steel Ltd. v. Jindal Praxair Oxygen Co. Ltd., (2006) 11 SCC 521 , SCC at p. 542, para 59). Section 42 is also markedly different from Section 31(4) of the 1940 Act in that the expression has been made in a court competent to entertain it does not find place in Section 42. This is for the reason that, under Section 2(1)(e), the competent court is fixed as the Principal Civil Court exercising original jurisdiction or a High Court exercising original civil jurisdiction, and no other court. For all these reasons, we hold that the decisions under the 1940 Act would not obtain under the 1996 Act, and the Supreme Court cannot be court for the purposes of Section 4221. One other question that may arise is as to whether Section 42 applies after the arbitral proceedings come to an end. It has already been held by us that the expression with respect to an arbitration agreement are words of wide import and would take in all applications made before during or after the arbitral proceedings are over. In an earlier judgment, Kumbha Mawji v. Dominion of India, the question which arose before the Supreme Court was whether the expression used in Section 31(4) of the 1940 Act in any reference would include matters that are after the arbitral proceedings are over and have culminated in an award. It was held that the words in any reference cannot be taken to mean in the course of a reference, but mean in the matter of a reference and that such phrase is wide enough and comprehensive enough to cover an application made after the arbitration is completed and the final award is made (see SCR pp. 891-93 : AIR pp. 317-18, paras 13-16). As has been noticed above, the expression used in Section 42 is wider being with respect to an arbitration agreement and would certainly include such applications.e have extensively referred to the said judgment as we agree with the principle stated therein and there is no reason to accept what has been stated in Burn Standard Co. Ltd. (supra).37. Presently, we may proceed to analyze the reasoning given by the three-Judge Bench in Saith and Skelton (supra). The Court in the said case expressed the view that the directions contained in the order passed by the Court and the further proceedings indicated the retention of full control by this Court over the arbitration proceeding. Placing reliance on CT. A. CT. Nachiappa Chettiar (supra), the Court held thus:-21. In Ct. A. Ct. Nachiappa Chettiar v. Ct. A. Ct. Subramaniam Chettiar the question arose whether the trial court had jurisdiction to refer the subject-matter of a suit to an arbitrator when the decree passed in the suit was pending appeal before the High Court. Based upon Section 21, it was urged before this Court that the reference made by the trial court, when the appeal was pending, and the award made in consequence of such reference, were both invalid as the trial court was not competent to make the order of reference. This Court rejected the said contention and after a reference to Sections 2(c) and 21 of the Act held that the expression Court occurring in Section 21 includes also the appellate court, proceedings before which are a continuance of the suit. It was further held that the word suit in Section 21 includes also appellate proceedings. In our opinion, applying the analogy of the above decision, the expression Court occurring in Section 14(2) of the Act will have to be understood in the context in which it occurs. So understood, it follows that this Court is the Court under Section 14(2) where the arbitration Award could be validly filed.It seems to us, the facts in the said case were quite different and the principle that the Court has laid down lucidly states that the appellate court includes the court of first instance and the power of reference under Section 21 of the Act can still be exercised by the appellate court under certain circumstances. We do not have any difference with the proposition that has been laid down in the said decision. The analogy of the said decision has been applied to understand the expression Court occurring in Section 14(2) of the Act. True, in Saith and Skelton (supra), the learned Judges have qualified the same by stating the context in which it occurs. Bestowing our thoughtful consideration, we are disposed to think that the analogy taken from CT. A. CT. Nachiappa Chettiar (supra) and applying to the superior courts attaching condition precedent that should the superior court retain control over the arbitral proceedings, it will have exclusive jurisdiction is neither correct nor acceptable. On a careful reading of the judgment in CT. A. CT. Nachiappa Chettiar, we do not find anything that can be remotely connected to confer power on the superior courts to deal with the award directly. The analogy, if any, has to stop at a particular level. To explicate, in a given case, the parties may agree for arbitration and the court may think it appropriate to send it for arbitration. But to expand the theory that the court had issued directions after the appointment of arbitrator and was in control of it and, therefore, the award can only be filed before the superior court for the purpose of making it a Rule of Court as has been held in Saith and Skelton does not flow from the correct understanding of the principle stated in CT. A. CT. Nachiappa Chettiar.44. Guru Nanak Foundation (supra), as we have narrated earlier, refers to the definition of Court and analyses sub-section (2) of Section 14 and sub-section (4) of Section 31 and opines that sub-section (4) of Section 31 not only confers exclusive jurisdiction on the court to which an application is made in any reference but also simultaneously ousts the jurisdiction of any other court which may as well have jurisdiction in itself. To illustrate the point further, the Bench has stated:-15. ... if an Award was required to be filed under Section 14(2) read with Section 31(1) in any particular court as being the court in which a suit touching the subject-matter of Award would have been required to be filed, but if any application in the reference under the Act has been filed in some other court which was competent to entertain that application, then to the exclusion of the first mentioned court the latter court alone, in view of the overriding effect of the provision contained in Section 31(4), will have jurisdiction to entertain the Award and the Award will have to be filed in that court alone and no other court will have jurisdiction to entertain the same.16. The provision contained in sub-section (2) of Section 14 will neither be rendered otiose nor stand in disharmony on the construction that we place on sub-section (4) of Section 31 because the expression court as defined in Section 2(c) will have to be adhered to unless there is anything repugnant in the subject or context in which it is used. Therefore, the expression court as used in Section 14(2) will have to be understood in this background.e aforesaid reasoning, does not really lay the foundation for establishing the proposition that if a superior court keeps control over the arbitral proceeding the award can only be filed before the said Court.47. Section 31 deals with the jurisdiction of the Courts.48. The said provision, as noted earlier, has been interpreted in Kumbha Mawji (supra). Interpreting the said provision, the three-Judge Bench has held that the object of the said sub-section is apparently to go further than sub-section (3), that is, not merely casting on the party concerned an obligation to file all applications in one court for vesting exclusive jurisdiction for such applications in the court in which the first application has been already made. The interpretation placed by the three-Judge Bench is to the effect that on a comprehensive view of Section 31 that while the first sub-section determines the jurisdiction of the court in which an award can be filed, sub-sections (2), (3) and (4) are intended to make that jurisdiction effective in three different ways, (1) by vesting in one court the authority to deal with all questions regarding the validity, effect or existence of an award or an arbitration agreement, (2) by casting on the persons concerned the obligation to file all applications regarding the conduct of arbitration proceedings or otherwise arising out of such proceedings in one court, and (3) by vesting exclusive jurisdiction in the court in which the first application relating to the matter is filed. The further analysis of the Court is that the context of sub-section (4) would seem to indicate that the sub-section was not meant to be confined to applications made during the pendency of an arbitration. The necessity for clothing a single court with effective and exclusive jurisdiction, and to bring about by the combined operation of the three provisions the avoidance of conflict and scramble is equally essential whether the question arises during the pendency of the arbitration or after the arbitration is completed or before the arbitration is commenced. There is no conceivable reason that the legislature has intended to confine the operation of sub-section (4) only to applications made during the pendency of arbitration because the phrase in any reference is to be taken as meaning in the course of a reference.49. As noted earlier, the Court has interpreted the phrase `in any reference to connote `in the matter or course of a reference which would mean in the matter of a reference to arbitration and also include the stage when the final award is made. This has been distinguished in Guru Nanak Foundation by referring to Section 31(4) of the Act as regards the meaning of the word `Court and assuming the premise that the Supreme Court can also become the court of first instance if it has retained control over the proceedings. On a perusal of the definition of the term `Court in the dictionary clause and the meaning of the word `Court as employed in Section 31(4) of the Act and appreciating the same in the context of the provisions and also taking note of the scheme of the Act, we find that the construction placed in Guru Nanak Foundation (supra) suffers from a fundamental fallacy. The language used in Section 31(4) of the Act commences with the non-obstante clause. The said part of the provision has to be understood in the textual context because primarily the provision is an enabling one and the real intendment that is conveyed through the vehicle of expressive language is that where any application has been made in a reference under the Act as regards the Court which has competence to entertain an application, that court alone shall have the jurisdiction over the arbitration proceedings. The purpose behind the said provision is to avoid conflict in the exercise of jurisdiction and to inject the intention of certainty of the jurisdictional court keeping in view the scheme of the Act which is meant to facilitate the process of arbitration and see the finality of the post award proceedings. Therefore, it is difficult to accept that the Supreme Court can assume original jurisdiction, solely because of control over the proceedings, for original jurisdiction has been conferred upon the Supreme Court under Articles 32 and 131 of the Constitution. It is also worthy to note that the said original jurisdiction is not available to this Court in respect of a dispute that finds mention in Article 262 of the Constitution. In State of Karnataka v. State of Tamil Nadu and others, (2017) 3 SCC 362 , the three-Judge Bench, after analysing the width of Article 32 and the concept of original jurisdiction of the Supreme Court as envisaged under Article 131 of the Constitution and analyzing the language employed under Article 262, has held that the authority conferred under Article 32 has its limitations when the lis under Article 262 emerges. The Constitution has not provided machinery for resolution of the disputes in the Constitution but has empowered Parliament to make laws to provide to exclude the power of the Supreme Court or any other court with regard to jurisdiction in respect of complaints or disputes that find mention in Article 262(1). Thereafter, the Court referred to the authorities in State of Orissa v. Government of India and another, (2009) 5 SCC 492 and Networking of Rivers, In re, 2012) 4 SCC 51. In Networking of Rivers, in re (supra), the Court ruled that Section 11 of the Inter-State River Water Disputes Act, 1956 (for short, the 1956 Act) uses the expression use, distribution and control of water in any river and they are the keywords in determination of the scope of power conferred on a tribunal constituted under Section 3 of the 1956 Act. If a matter fell outside the scope of these three crucial words, the power of Section 11 of the 1956 Act in ousting the jurisdiction of the courts in respect of any water dispute, which is otherwise to be referred to the tribunal, would not have any manner of application. The test of maintainability of a legal action initiated by a State in a court would thus be, whether the issues raised therein are referable to a tribunal for adjudication of the manner of use, distribution and control of water.50. Be it noted, in the said case, the three-Judge Bench opined that the award passed by the Tribunal can be scrutinized under Article 136 of the Constitution and the special leave to appeal would be maintainable. The purpose of referring to the aforesaid judgment in detail is to show that where the original jurisdiction has been conferred by the Constitution upon this Court and where it is barred.As indicated earlier, the Court has assumed the jurisdiction by interpreting the word `Court as used in Section 31(4) of the Act. We have already held that interpretation is not in accord with the language used in the provision and the intention of the legislature. It is clear to us that the court competent to entertain the reference will have the jurisdiction to deal with the objections to the award or any post award proceeding.In Bharat Coking Coal Limited, it has been observed thus:-8. It is now a trite law that whenever a term has been defined under a statute, the same should ordinarily be given effect to. There cannot, however, be any doubt whatsoever that the interpretation clause being prefaced by the words unless there is anything repugnant in the subject and context may in given situations lead this Court to opine that the legislature intended a different meaning. (See State of Maharashtra v. Indian Medical Assn., (2002) 1 SCC 589 and PandeyCo. Builders (P) Ltd. v. State of Bihar, (2007)1 SCC 467 .)9. While determining such a question, the Court ordinarily again must preserve the right of a party to prefer an appeal. A right of appeal is a valuable right and unless there exist cogent reasons, a litigant should not be deprived of the same. It is a statutory right.. It is worthy to mention that in the said case, the two-Judge Bench had distinguished Guru Nanak Foundation on facts. But the emphasis has been on the sustenance of the right of a party to prefer an appeal. In this context, Mr. Sinha has drawn our attention to the Constitution Bench decision in Garikapati Veeraya (supra) that lays down that the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding and the right of appeal is not a mere matter of procedure but is a substantive right. It has been further held that the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal and the said vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.54. The principle laid down by the Constitution Bench graphically exposits that right to appeal is a vested right and such a right exists on and from the date the lis commences and the said right can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.57. In Guru Nanak Foundation (supra), as noted earlier, the two-Judge Bench has distinguished the principle laid down in Garikapati Veeraya (supra) by stating that the door of this Court is not closed to the appellant. In fact, as has been stated, the door is being held wide ajar for him to raise all contentions which one can raise in a proceeding in an originating summons. The aforesaid statement of law is not correct because the superior court is not expected in law to assume jurisdiction on the foundation that it is a higher court and further opining that all contentions are open. The legislature, in its wisdom, has provided an appeal under Section 39 of the Act. Solely because a superior court appoints the arbitrator or issues directions or has retained some control over the arbitrator by requiring him to file the award in this Court, it cannot be regarded as a court of first instance as that would go contrary to the definition of the term `court as used in the dictionary clause as well as in Section 31(4). Simply put, the principle is not acceptable because this Court cannot curtail the right of a litigant to prefer an appeal by stating that the doors are open to this Court and to consider it as if it is an original court. Original jurisdiction in this Court has to be vested in law. Unless it is so vested and the Court assumes, the court really scuttles the forum that has been provided by the legislature to a litigant. That apart, as we see, the said principle is also contrary to what has been stated in Kumbha Mawji. It is worthy to note that this Court may make a reference to an arbitrator on consent but to hold it as a legal principle that it can also entertain objections as the original court will invite a fundamental fallacy pertaining to jurisdiction58. In Surjit Singh Atwal (supra), a three-Judge Bench had opined that applications under Section 8 and under Section 20, though clearly applications anterior to the reference, lead to a reference. Such applications are undoubtedly applications in the matter of a reference and may fall within the purview of Section 31(4) of the Act even though these applications are made before any reference has taken place. The purpose of referring to the said authority is that the principle stated in Kumbha Mawji (supra) has been elaborated in Surjit Singh Atwal (supra). It is to be borne in mind that the Court that has jurisdiction to entertain the first application is determinative by the fact as to which Court has the jurisdiction and retains the jurisdiction. In this regard, an example may be cited. When arbitrator is not appointed under the Act and the matter is challenged before the High Court or, for that matter, the Supreme Court and, eventually, an arbitrator is appointed and some directions are issued, it will be inappropriate and inapposite to say that the superior court has the jurisdiction to deal with the objections filed under Sections 30 and 33 of the Act. The jurisdiction of a Court conferred under a statute cannot be allowed to shift or become flexible because of a superior courts interference in the matter in a different manner. | 1 | 16,971 | 9,461 | ### Instruction:
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to punish for contempt of itself. Articles 131, 132, 133, 134, 135, 137, 138 and 139 confer different jurisdictions on the Supreme Court while Articles 225, 226, 227, 228 and 230 deal with conferment of jurisdiction on the High Courts. Instances of conferment of jurisdiction by specific law are very common. The laws of procedure both criminal and civil confer jurisdiction on different courts. Special jurisdiction is conferred by special statute. It is thus clear that jurisdiction can be exercised only when provided lower either in the Constitution or in the laws made by the legislature. Jurisdiction is thus the authority or power of the court to deal with a matter and make an order carrying binding force in the facts. In support of judicial opinion for this view reference may be made to the Permanent Edition of Words und Phrases Vol. 23-A at page 164. It would be appropriate to refer to two small passages occurring at pages 174 and 175 of the volume. At page 174, referring to the decision in Carlile v. National Oil & Development Co. it has been stated. Jurisdiction is the authority to hear and determine, and in order that it may exist the following are essential: (1) A court created by law, organized and sitting; (2) authority given to it by law to hear and determine causes of the kind in question; (3) power given to it by law to render a judgment such as it assumes to render; (4) authority over the parties to the case if the judgment is to bind them personally as a judgment in personam, which is acquired over the plaintiff by his appearance and submission of the matter to the court, and is acquired over the defendant by his voluntary appearance, or by service of process on him; (5) authority over the thing adjudicated upon its being located within the courts territory, and by actually seizing it if liable to be carried away; (6) authority to decide the question involved, which is acquired by the question being submitted to it by the parties for decision. 56. In Shiv Shakti Coop. Housing Society, Nagpur v. Swaraj Developers and others, (2003) 6 SCC 659 , it has been expressed that the right of appeal is statutory and when conferred by a statute, it becomes a vested right. Jurisdiction vested in an appellate court in a hierarchical system is to rectify the errors and that is why it is called error jurisdiction as has been held in Vikas Yadav v. State of Uttar Pradesh and others, (2016) 9 SCC 541. A similar view has been expressed in Nahar Industrial Enterprises Limited v. Hong Kong and Shanghai Banking Corporation, (2009) 8 SCC 646. 57. In Guru Nanak Foundation (supra), as noted earlier, the two-Judge Bench has distinguished the principle laid down in Garikapati Veeraya (supra) by stating that the door of this Court is not closed to the appellant. In fact, as has been stated, the door is being held wide ajar for him to raise all contentions which one can raise in a proceeding in an originating summons. The aforesaid statement of law is not correct because the superior court is not expected in law to assume jurisdiction on the foundation that it is a higher court and further opining that all contentions are open. The legislature, in its wisdom, has provided an appeal under Section 39 of the Act. Solely because a superior court appoints the arbitrator or issues directions or has retained some control over the arbitrator by requiring him to file the award in this Court, it cannot be regarded as a court of first instance as that would go contrary to the definition of the term `court as used in the dictionary clause as well as in Section 31(4). Simply put, the principle is not acceptable because this Court cannot curtail the right of a litigant to prefer an appeal by stating that the doors are open to this Court and to consider it as if it is an original court. Original jurisdiction in this Court has to be vested in law. Unless it is so vested and the Court assumes, the court really scuttles the forum that has been provided by the legislature to a litigant. That apart, as we see, the said principle is also contrary to what has been stated in Kumbha Mawji. It is worthy to note that this Court may make a reference to an arbitrator on consent but to hold it as a legal principle that it can also entertain objections as the original court will invite a fundamental fallacy pertaining to jurisdiction. 58. In Surjit Singh Atwal (supra), a three-Judge Bench had opined that applications under Section 8 and under Section 20, though clearly applications anterior to the reference, lead to a reference. Such applications are undoubtedly applications in the matter of a reference and may fall within the purview of Section 31(4) of the Act even though these applications are made before any reference has taken place. The purpose of referring to the said authority is that the principle stated in Kumbha Mawji (supra) has been elaborated in Surjit Singh Atwal (supra). It is to be borne in mind that the Court that has jurisdiction to entertain the first application is determinative by the fact as to which Court has the jurisdiction and retains the jurisdiction. In this regard, an example may be cited. When arbitrator is not appointed under the Act and the matter is challenged before the High Court or, for that matter, the Supreme Court and, eventually, an arbitrator is appointed and some directions are issued, it will be inappropriate and inapposite to say that the superior court has the jurisdiction to deal with the objections filed under Sections 30 and 33 of the Act. The jurisdiction of a Court conferred under a statute cannot be allowed to shift or become flexible because of a superior courts interference in the matter in a different manner.
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jurisdiction to deal with the objections to the award or any post award proceeding.In Bharat Coking Coal Limited, it has been observed thus:-8. It is now a trite law that whenever a term has been defined under a statute, the same should ordinarily be given effect to. There cannot, however, be any doubt whatsoever that the interpretation clause being prefaced by the words unless there is anything repugnant in the subject and context may in given situations lead this Court to opine that the legislature intended a different meaning. (See State of Maharashtra v. Indian Medical Assn., (2002) 1 SCC 589 and PandeyCo. Builders (P) Ltd. v. State of Bihar, (2007)1 SCC 467 .)9. While determining such a question, the Court ordinarily again must preserve the right of a party to prefer an appeal. A right of appeal is a valuable right and unless there exist cogent reasons, a litigant should not be deprived of the same. It is a statutory right.. It is worthy to mention that in the said case, the two-Judge Bench had distinguished Guru Nanak Foundation on facts. But the emphasis has been on the sustenance of the right of a party to prefer an appeal. In this context, Mr. Sinha has drawn our attention to the Constitution Bench decision in Garikapati Veeraya (supra) that lays down that the legal pursuit of a remedy, suit, appeal and second appeal are really but steps in a series of proceedings all connected by an intrinsic unity and are to be regarded as one legal proceeding and the right of appeal is not a mere matter of procedure but is a substantive right. It has been further held that the right of appeal is a vested right and such a right to enter the superior court accrues to the litigant and exists as on and from the date the lis commences and although it may be actually exercised when the adverse judgment is pronounced such right is to be governed by the law prevailing at the date of the institution of the suit or proceeding and not by the law that prevails at the date of its decision or at the date of the filing of the appeal and the said vested right of appeal can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.54. The principle laid down by the Constitution Bench graphically exposits that right to appeal is a vested right and such a right exists on and from the date the lis commences and the said right can be taken away only by a subsequent enactment, if it so provides expressly or by necessary intendment and not otherwise.57. In Guru Nanak Foundation (supra), as noted earlier, the two-Judge Bench has distinguished the principle laid down in Garikapati Veeraya (supra) by stating that the door of this Court is not closed to the appellant. In fact, as has been stated, the door is being held wide ajar for him to raise all contentions which one can raise in a proceeding in an originating summons. The aforesaid statement of law is not correct because the superior court is not expected in law to assume jurisdiction on the foundation that it is a higher court and further opining that all contentions are open. The legislature, in its wisdom, has provided an appeal under Section 39 of the Act. Solely because a superior court appoints the arbitrator or issues directions or has retained some control over the arbitrator by requiring him to file the award in this Court, it cannot be regarded as a court of first instance as that would go contrary to the definition of the term `court as used in the dictionary clause as well as in Section 31(4). Simply put, the principle is not acceptable because this Court cannot curtail the right of a litigant to prefer an appeal by stating that the doors are open to this Court and to consider it as if it is an original court. Original jurisdiction in this Court has to be vested in law. Unless it is so vested and the Court assumes, the court really scuttles the forum that has been provided by the legislature to a litigant. That apart, as we see, the said principle is also contrary to what has been stated in Kumbha Mawji. It is worthy to note that this Court may make a reference to an arbitrator on consent but to hold it as a legal principle that it can also entertain objections as the original court will invite a fundamental fallacy pertaining to jurisdiction58. In Surjit Singh Atwal (supra), a three-Judge Bench had opined that applications under Section 8 and under Section 20, though clearly applications anterior to the reference, lead to a reference. Such applications are undoubtedly applications in the matter of a reference and may fall within the purview of Section 31(4) of the Act even though these applications are made before any reference has taken place. The purpose of referring to the said authority is that the principle stated in Kumbha Mawji (supra) has been elaborated in Surjit Singh Atwal (supra). It is to be borne in mind that the Court that has jurisdiction to entertain the first application is determinative by the fact as to which Court has the jurisdiction and retains the jurisdiction. In this regard, an example may be cited. When arbitrator is not appointed under the Act and the matter is challenged before the High Court or, for that matter, the Supreme Court and, eventually, an arbitrator is appointed and some directions are issued, it will be inappropriate and inapposite to say that the superior court has the jurisdiction to deal with the objections filed under Sections 30 and 33 of the Act. The jurisdiction of a Court conferred under a statute cannot be allowed to shift or become flexible because of a superior courts interference in the matter in a different manner.
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S.S. Rana Vs. Registrar, Cooperative Socieites | Ajay Hasia vs. Khalid Mujib Sehravardi [(1981) 1 SCC 722] : "(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with Governmental character. (3) It may also be relevant factor ..whether the corporation enjoys monopoly status which is State conferred or State protected. (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (5) If the functions of the corporation are of public importance and closely related to Governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government." 13. This Court further held: "This picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesis, be considered to be a State within the meaning of Article 12. The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State." (Emphasis supplied) 14. As the respondent No.1 does not satisfy any of the tests laid down in Pradeep Kumar Biswas (supra), we are of the opinion that the High Court cannot be said to have committed any error in arriving at a finding that the respondent-Bank is not a State within the meaning of Article 12 of the Constitution of India. 15. We are, however, not oblivious of a three judge Bench decision in Gayatri De vs. Mousumi Cooperative Housing Society Ltd. & Ors. [(2004) 5 SCC 90] , wherein this Court held a writ petition to be maintainable against the cooperative society only stating: "We have, in paragraphs supra, considered the judgments for and against on the question of maintainability of writ petition. The judgments cited by the learned Senior Counsel appearing for the respondents are distinguishable on facts and on law. Those cases are not cases covered by the appointment of a Special Officer to manage the administration of the Society and its affairs. In the instant case, the Special Officer was appointed by the High Court to discharge the functions of the Society, therefore, he should be regarded as a public authority and hence, the writ petition is maintainable." 16. The said decision, therefore, is of no assistance to us. 17. Our attention has also been drawn to U.P. State Cooperative Land development Bank Ltd. vs. Chandra Bhan Dubey & Ors. [(1999) 1 SCC 741] , wherein the writ petition was held to be maintainable principally on the ground that it had been created under an Act. Reliance has also been placed upon Ram Sahan Rai vs. Sachiv Samanaya Prabandhak & Anr. [(2001) 3 SCC 323] , wherein again the appellant thus was recruited in a Society constituted under the U.P. Cooperative Land Development Bank Act, 1964 and this Court, having examined different provisions of rules, bye-laws and regulations, was of the firm opinion that the State Government exercised all-pervasive control over the Bank and moreover its employees were governed by statutory rules, prescribing an entire gamut of procedure of initiation of disciplinary proceedings by framing a set of charges culminating in inflicting of appropriate punishment, after complying with the requirements of giving a show-cause and an opportunity of hearing to the delinquent. 18. It is, therefore, evident that in Ram Sahan Rai (supra) also the cooperative society was held to be established under a statute. We may notice that in Nayagarh Cooperative Central Bank Ltd. & Anr. vs. Narayan Rath & Anr. [(1977) 3 SCC 576] , this Court was of the opinion that: "The High Court has dealt with the question whether a writ petition can be maintained against a cooperative society, but we are inclined to the view that the observations made by the High Court and its decision that such a writ petition is maintainable are not strictly in accordance with the decisions of this Court. We would have liked to go into the question for ourselves, but it is unnecessary to do so as Respondent 1 by his writ petition, was asking for relief not really against a cooperative society but in regard to the order which was passed by the Registrar, who was acting as a statutory authority in the purported exercise of powers conferred on him by the Cooperative Societies Act. The writ petition was in that view maintainable." 19. We may notice in some decisions, some High Courts have held wherein that a writ petition would be maintainable against a society if it is demonstrated that any mandatory provision of the Act or the rules framed thereunder, have been violated by it. [See Bholanath Roy & Ors. vs. State of West Bengal & Ors. reported in (1996) Vol.1 Calcutta Law Journal 502 .] 20. The Society has not been created under any statute. It has not been shown before that in terminating the services of the appellant, the Respondent has violated any mandatory provisions of the Act or the rules framed thereunder. In fact, in the writ petition no such case was made out. 21. | 0[ds]As the respondent No.1 does not satisfy any of the tests laid down in Pradeep Kumar Biswas (supra), we are of the opinion that the High Court cannot be said to have committed any error in arriving at a finding that the respondent-Bank is not a State within the meaning of Article 12 of the Constitution of IndiaWe are, however, not oblivious of a three judge Bench decision in Gayatri De vs. MousumiCooperativeHousing Society Ltd. & Ors. [(2004) 5 SCC 90] , wherein this Court held a writ petition to be maintainable against the cooperative society only stating:"We have, in paragraphs supra, considered the judgments for and against on the question of maintainability of writ petition. The judgments cited by the learned Senior Counsel appearing for the respondents are distinguishable on facts and on law. Those cases are not cases covered by the appointment of a Special Officer to manage the administration of the Society and its affairs. In the instant case, the Special Officer was appointed by the High Court to discharge the functions of the Society, therefore, he should be regarded as a public authority and hence, the writ petition is maintainable."The said decision, therefore, is of no assistance to usOur attention has also been drawn to U.P. StateCooperativeLand development Bank Ltd. vs. Chandra Bhan Dubey & Ors. [(1999) 1 SCC 741] , wherein the writ petition was held to be maintainable principally on the ground that it had been created under an Act. Reliance has also been placed upon Ram Sahan Rai vs. Sachiv Samanaya Prabandhak & Anr. [(2001) 3 SCC 323] , wherein again the appellant thus was recruited in a Society constituted under the U.P.CooperativeLand Development Bank Act, 1964 and this Court, having examined different provisions of rules, bye-laws and regulations, was of the firm opinion that the State Government exercised all-pervasive control over the Bank and moreover its employees were governed by statutory rules, prescribing an entire gamut of procedure of initiation of disciplinary proceedings by framing a set of charges culminating in inflicting of appropriate punishment, after complying with the requirements of giving a show-cause and an opportunity of hearing to the delinquentIt is, therefore, evident that in Ram Sahan Rai (supra) also the cooperative society was held to be established under a statute. We may notice that in NayagarhCooperativeCentral Bank Ltd. & Anr. vs. Narayan Rath & Anr. [(1977) 3 SCC 576] , this Court was of the opinion that:"The High Court has dealt with the question whether a writ petition can be maintained against a cooperative society, but we are inclined to the view that the observations made by the High Court and its decision that such a writ petition is maintainable are not strictly in accordance with the decisions of this Court. We would have liked to go into the question for ourselves, but it is unnecessary to do so as Respondent 1 by his writ petition, was asking for relief not really against a cooperative society but in regard to the order which was passed by the Registrar, who was acting as a statutory authority in the purported exercise of powers conferred on him by theCooperativeSocieties Act. The writ petition was in that view maintainable."We may notice in some decisions, some High Courts have held wherein that a writ petition would be maintainable against a society if it is demonstrated that any mandatory provision of the Act or the rules framed thereunder, have been violated by it. [See Bholanath Roy & Ors. vs. State of West Bengal & Ors. reported in (1996) Vol.1 Calcutta Law Journal 502 .]The Society has not been created under any statute. It has not been shown before that in terminating the services of the appellant, the Respondent has violated any mandatory provisions of the Act or the rules framed thereunder. In fact, in the writ petition no such case was made out. | 0 | 5,026 | 736 | ### 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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Ajay Hasia vs. Khalid Mujib Sehravardi [(1981) 1 SCC 722] : "(1) One thing is clear that if the entire share capital of the corporation is held by Government, it would go a long way towards indicating that the corporation is an instrumentality or agency of Government. (2) Where the financial assistance of the State is so much as to meet almost entire expenditure of the corporation, it would afford some indication of the corporation being impregnated with Governmental character. (3) It may also be relevant factor ..whether the corporation enjoys monopoly status which is State conferred or State protected. (4) Existence of deep and pervasive State control may afford an indication that the corporation is a State agency or instrumentality. (5) If the functions of the corporation are of public importance and closely related to Governmental functions, it would be a relevant factor in classifying the corporation as an instrumentality or agency of Government. (6) Specifically, if a department of Government is transferred to a corporation, it would be a strong factor supportive of this inference of the corporation being an instrumentality or agency of Government." 13. This Court further held: "This picture that ultimately emerges is that the tests formulated in Ajay Hasia are not a rigid set of principles so that if a body falls within any one of them it must, ex hypothesis, be considered to be a State within the meaning of Article 12. The question in each case would be whether in the light of the cumulative facts as established, the body is financially, functionally and administratively dominated by or under the control of the Government. Such control must be particular to the body in question and must be pervasive. If this is found then the body is a State within Article 12. On the other hand, when the control is merely regulatory whether under statute or otherwise, it would not serve to make the body a State." (Emphasis supplied) 14. As the respondent No.1 does not satisfy any of the tests laid down in Pradeep Kumar Biswas (supra), we are of the opinion that the High Court cannot be said to have committed any error in arriving at a finding that the respondent-Bank is not a State within the meaning of Article 12 of the Constitution of India. 15. We are, however, not oblivious of a three judge Bench decision in Gayatri De vs. Mousumi Cooperative Housing Society Ltd. & Ors. [(2004) 5 SCC 90] , wherein this Court held a writ petition to be maintainable against the cooperative society only stating: "We have, in paragraphs supra, considered the judgments for and against on the question of maintainability of writ petition. The judgments cited by the learned Senior Counsel appearing for the respondents are distinguishable on facts and on law. Those cases are not cases covered by the appointment of a Special Officer to manage the administration of the Society and its affairs. In the instant case, the Special Officer was appointed by the High Court to discharge the functions of the Society, therefore, he should be regarded as a public authority and hence, the writ petition is maintainable." 16. The said decision, therefore, is of no assistance to us. 17. Our attention has also been drawn to U.P. State Cooperative Land development Bank Ltd. vs. Chandra Bhan Dubey & Ors. [(1999) 1 SCC 741] , wherein the writ petition was held to be maintainable principally on the ground that it had been created under an Act. Reliance has also been placed upon Ram Sahan Rai vs. Sachiv Samanaya Prabandhak & Anr. [(2001) 3 SCC 323] , wherein again the appellant thus was recruited in a Society constituted under the U.P. Cooperative Land Development Bank Act, 1964 and this Court, having examined different provisions of rules, bye-laws and regulations, was of the firm opinion that the State Government exercised all-pervasive control over the Bank and moreover its employees were governed by statutory rules, prescribing an entire gamut of procedure of initiation of disciplinary proceedings by framing a set of charges culminating in inflicting of appropriate punishment, after complying with the requirements of giving a show-cause and an opportunity of hearing to the delinquent. 18. It is, therefore, evident that in Ram Sahan Rai (supra) also the cooperative society was held to be established under a statute. We may notice that in Nayagarh Cooperative Central Bank Ltd. & Anr. vs. Narayan Rath & Anr. [(1977) 3 SCC 576] , this Court was of the opinion that: "The High Court has dealt with the question whether a writ petition can be maintained against a cooperative society, but we are inclined to the view that the observations made by the High Court and its decision that such a writ petition is maintainable are not strictly in accordance with the decisions of this Court. We would have liked to go into the question for ourselves, but it is unnecessary to do so as Respondent 1 by his writ petition, was asking for relief not really against a cooperative society but in regard to the order which was passed by the Registrar, who was acting as a statutory authority in the purported exercise of powers conferred on him by the Cooperative Societies Act. The writ petition was in that view maintainable." 19. We may notice in some decisions, some High Courts have held wherein that a writ petition would be maintainable against a society if it is demonstrated that any mandatory provision of the Act or the rules framed thereunder, have been violated by it. [See Bholanath Roy & Ors. vs. State of West Bengal & Ors. reported in (1996) Vol.1 Calcutta Law Journal 502 .] 20. The Society has not been created under any statute. It has not been shown before that in terminating the services of the appellant, the Respondent has violated any mandatory provisions of the Act or the rules framed thereunder. In fact, in the writ petition no such case was made out. 21.
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As the respondent No.1 does not satisfy any of the tests laid down in Pradeep Kumar Biswas (supra), we are of the opinion that the High Court cannot be said to have committed any error in arriving at a finding that the respondent-Bank is not a State within the meaning of Article 12 of the Constitution of IndiaWe are, however, not oblivious of a three judge Bench decision in Gayatri De vs. MousumiCooperativeHousing Society Ltd. & Ors. [(2004) 5 SCC 90] , wherein this Court held a writ petition to be maintainable against the cooperative society only stating:"We have, in paragraphs supra, considered the judgments for and against on the question of maintainability of writ petition. The judgments cited by the learned Senior Counsel appearing for the respondents are distinguishable on facts and on law. Those cases are not cases covered by the appointment of a Special Officer to manage the administration of the Society and its affairs. In the instant case, the Special Officer was appointed by the High Court to discharge the functions of the Society, therefore, he should be regarded as a public authority and hence, the writ petition is maintainable."The said decision, therefore, is of no assistance to usOur attention has also been drawn to U.P. StateCooperativeLand development Bank Ltd. vs. Chandra Bhan Dubey & Ors. [(1999) 1 SCC 741] , wherein the writ petition was held to be maintainable principally on the ground that it had been created under an Act. Reliance has also been placed upon Ram Sahan Rai vs. Sachiv Samanaya Prabandhak & Anr. [(2001) 3 SCC 323] , wherein again the appellant thus was recruited in a Society constituted under the U.P.CooperativeLand Development Bank Act, 1964 and this Court, having examined different provisions of rules, bye-laws and regulations, was of the firm opinion that the State Government exercised all-pervasive control over the Bank and moreover its employees were governed by statutory rules, prescribing an entire gamut of procedure of initiation of disciplinary proceedings by framing a set of charges culminating in inflicting of appropriate punishment, after complying with the requirements of giving a show-cause and an opportunity of hearing to the delinquentIt is, therefore, evident that in Ram Sahan Rai (supra) also the cooperative society was held to be established under a statute. We may notice that in NayagarhCooperativeCentral Bank Ltd. & Anr. vs. Narayan Rath & Anr. [(1977) 3 SCC 576] , this Court was of the opinion that:"The High Court has dealt with the question whether a writ petition can be maintained against a cooperative society, but we are inclined to the view that the observations made by the High Court and its decision that such a writ petition is maintainable are not strictly in accordance with the decisions of this Court. We would have liked to go into the question for ourselves, but it is unnecessary to do so as Respondent 1 by his writ petition, was asking for relief not really against a cooperative society but in regard to the order which was passed by the Registrar, who was acting as a statutory authority in the purported exercise of powers conferred on him by theCooperativeSocieties Act. The writ petition was in that view maintainable."We may notice in some decisions, some High Courts have held wherein that a writ petition would be maintainable against a society if it is demonstrated that any mandatory provision of the Act or the rules framed thereunder, have been violated by it. [See Bholanath Roy & Ors. vs. State of West Bengal & Ors. reported in (1996) Vol.1 Calcutta Law Journal 502 .]The Society has not been created under any statute. It has not been shown before that in terminating the services of the appellant, the Respondent has violated any mandatory provisions of the Act or the rules framed thereunder. In fact, in the writ petition no such case was made out.
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The State Of Mysore Vs. The Workers Of Gold Mines | the appellate tribunal has observed that for determining the total amount required for rehabilitation it is the original cost that has to be multiplied by an appropriate multiple, for instance 2.7, for the purpose of ascertaing in the replacement value of the machinery, buildings and plant. From the amount thus obtained 5 per cent. of the original value is to be deducted as breakdown value. The balance is treated as sufficient to complete replacement of machinery and buildings. Then the amount in hand under the head of depreciation, general reserve and rehabilitation have to be totalled and this total has to be deduted from the aforesaid balance which is required to complete replacement of machinery and buildings. It is the balance thus drawn that has to be spread over a number of years, as for in instance 15, for the purpose of rehabilitation; in other words, the balance has to be divided by 15 and the amount thus determined has to be treated as prior charge under the heading of rehabilitation for the relevant year.Vide Meenakshi Mills Ltd., Madurai and Manapparai v. Their Workmen, 1954 Lab AC 131 (LATI-Luck) (E); The Rohtas Sugar Ltd. v. Their Workmen, 1954 Lab AC 168 at p. 184 (LATI-Cal) (F) and Mettur Industries Ltd., Mettur Dam v. The Workers, 1957 Lab AC 288 (LATI-Bom)(G). Thus the appellants claim for rehabilitation would have to be tried by the tribunal in the light of these decisions.In the application of the principles discussed in these decisions, industrial adjudication cannot adopt an inflexible or rigid approach; these principles will have to be applied with such modifications and adjustments as may be found necessary, just and expedient having regard to the evidence led by the parties before the tribunal and having regard to the special needs and requirements of the industry. This position appears to be fully recognised by the Labour Appellate Tribunal in these decisions themselves.21. There is another point on which Mr. Sanyal has requested us to call for a finding from the tribunal. His case is that the award of the tribunal in one material particular suffers from an error apparent on the face of the record. In the award, the initial contribution to the pension fund and the annual contribution to the pension fund have been added back for both the years in respect of all the companies. Mr. Sanyal contends that the amount added back under the heading "annual contribution to the pension fund" really includes the initial contribution to the said fund also, and so it was erroneous to have added back a separate amount under the heading "the initial contribution to the pension fund". In other words, the grievance is that the amount of the initial contribution has been added back twice. Mr. Jha, for the respondents, does not accept Mr. Sanyals contention that this is an error apparent on the face of the record. He disputes the assumption made by Mr. Sanyal that the annual contribution to the pension fund in each case includes the initial contribution as well. We do not propose to express any opinion on the merits of this dispute. We think it is desirable that the tribunal should be requested to make its finding on the question as to whether the amount of initial contribution has been added back twice over as suggested by the appellant. This is the second point which we want to remit for the consideration of the tribunal.22. The third point which we propose to remit for the consideration of the tribunal has been raised by Mr. Jha for the respondents. He argues that the tribunal has committed an obvious error in allowing a deduction of statutory depreciation to each one of the companies for both the years in question and in support of his argument he relies on the statements contained in the report of the directors in each case. As an illustration we should refer to the report and accounts of the Nundydroog Mines (KGF) Ltd., for the year ended December 31, 1953. In this report, under the item "capital expenditure", it is stated that the sum of Rs. 13,50,000 being depreciation for the period April 1, 1951 to December 31, 1953 has now been written off. Mr. Jha contends that, since this amount has been written off as depreciation, in calculating the available surplus for the year no amount should be allowed by way of statutory depreciation. This argument has been considered by the tribunal in para 20 of its award but Mr. Jha wants to challenge the correctness of the conclusion reached by the tribunal. We would normally not have allowed Mr. Jhas request for a reconsideration of this matter; but since on two points raised by the appellant we are remanding the case to the tribunal and calling for its findings on the said points we think it right to allow the respondents an opportunity to re-agitate this point. In fairness to Mr. Sanyal we may add that he did not object to this matter being remitted to the tribunal for reconsideration. We would, however, like to make it clear that in dealing with this point it would not be open to the respondents to contend that the appellant was not entitled to claim additional depreciation under the head of statutory depreciation. This Court has held in Sree Meenakshi Mills Ltd. v. Their Workmen, AIR 1958 SC 153 (H) that additional depreciation which is admissible under S. 10(vi) of the Income-tax. Act need not necessarily be allowed by industrial courts in determining the available surplus under the Full Bench formula. We wish to make it clear that it would not be open to the respondents to raise any contention on the strength of this decision under the issue which is being remitted to the tribunal at their request.23. It is somewhat unfortunate that, though we have held against the appellant on the main points urged by Mr. Sanyal before us, we cannot finally dispose of the appeal today. | 1[ds]In determining the quantum of the profit to which workmen as a whole can be held to be entitled, the Labour Appellate Tribunal evolved a formula under which the amount of the available surplus in the hands of the employer can be determined. This formula takes the figure of the gross profits made by the idustry for the relevant year and makes provisions for depreciation, for reserves, for rehabilitation, for return at 6 per cent on thecapital, for a return on the working capital at a lesser rate than the return on thecapital and for the payment ofThese items are treated as prior charges and the amount determined after deducting the aggregate total of these items from the gross profits is deemed to be the available surplus for the relevant year. It is in this available surplus thus deduced that labour is entitled to claim a reasonable share by way of bonus. It would thus be clear that under this formula the existence of an available surplus is a condition precedent for the award of bonus to workmen. The formula also postulates that the claim for bonus is made by workmen who are not paid what may properly be regarded as living wages. The payment of bonus is thus intended to attempt to fill up the gap, to the extent that is reasonably possible, between the wages actually paid to the workmen and the living wages which they legitimately hope in due course to secure. This formula has received the general approval of this Court in Muir Mills Co. Ltd., Kanpur v. Suti Mills Mazdoor Union, Kanpur,SCR 991 : ((S) AIR 1955 SC 170 )has shown that the formula in question is, in its application, elasitic enough to meet the requirements of individual cases, and so we do not think that the appellant has made out case for any addition to the existing categories of prior charges. It is clear that the amounts which can be admitted under the said existing categories would have to be determined in the light of the evidence adduced by the employer and having regard to the special requirements of the employers industry. In the present case the special features of the appellants industry on which Mr. Sanyal relies would have to be taken into account in determining the amounts which could be included either under depreciation or under rehabilitation. That is the approach adopted by the tribunal in the present case and we do not think that any complaint can be validly made againstour opinion it would not be reasonable or fair to allow the appellants specific claim for 15 per cent. by way of rehabilitation solely on the ground that the clause allows it to debit up to 15 per cent. In a special fund without examining the question as to whether a claim for depreciation and rehabilitation is justified, and if yes, what should be the amount which should be treated as a prior charge in the present proceeding. Inclusion of these items in a separate fund allowed under the relevant clause cannot preclude an investigation by the industrial tribunal into the merits of the said items and that is what the appellant seeks to do by placing his claim in that behalf solely on the relevant clause. We are, therefore, satisfied that the tribunal was not in error in disallowing the claim made by the appellant solely on the strength of this particular clause.14.As we have aready pointed out the tribunal has in fact conceded that the appellant would be justified in making a claim for prospecting new ore and thereby helping the longevity of its industry; but since no material was placed before the tribunal on which the tribunal determine the amount which the appellant can legitimately claim in that behalf, the tribunal was enable to give the appellant any relief in this matter. In this connection Mr. Sanyal referred us to the entries in the extracts from the balancesheets which referred to the capital expenditure during the relevant years on buildings, machinery and plant and sundries as well as on shaft sinking etc. In regard to the Mysore Gold Mining Co., for instance, the capital, expenditure in question during the year ending December 31, 1953, was shown as Rs. 3,30,729 (Ex.t the difficulty in accepting this figure as a prior charge either under depreciation or under rehabilitation arises from the fact that Mr. Rajagopal Srinivasan who was examined on behalf of the appellant was unable to explain how this total amount was made up. The witness expressly admitted that the companies had no record to show separately the amounts under different heads. Mr. Sanyal fairly conceded that the companies might have led better evidence in support of theircase. As the evidence stands, however, it is difficult to challenge the correctness of the view taken by the tribunal that the amounts shown in the different extracts from theare a mixture of very many items depending upon the options exercised by the management and that it would be impossible to say which part of the said amounts can be legitimately treated as prior charge under the heading of rehabilitation. That is why we do not think that Mr. Sanyal can succeed in his argument that, on the evidence as it stands, the appellant is entitled to any particular amount under the heading ofour opinion, whether or not this particular amount should be allowed as claimed by the appellant does not raise any general question of law and the reasonableness of the claim has, therefore, to be judged in the light of all relevant facts and circumstances. As the tribunal has found against the appellant on this point we do not think we would be justified in interfering with the decision of theis clear that the respondents were found entitled to bonus for the year 1950, because the companies held in their hands sufficient available surplus from the trading profits of that year.In the absence of satisfactory evidence, normally the bonus paid to the respondents for the year 1950 cannot be brought into accounting for a subsequent year. We are, therefore, satisfied that the appellant cannot successfully challenge the tribunals finding on this question.. Jha, for the respondents, has resisted the appellants request for a remand to enable it to put forward this claim for rehabilitation. He argues that the companies deliberately did not make a specific claim for rehabilitation and chose to rest their case on the relevant terms of the contract because they knew that a claim for rehabilitation would not be sustained. In this connection Mr. Jha referred us to the principles adopted by industrial courts in determining the employers claims forare not impressed by this argument. It seems to us that, if the employer was partly misled by the previous awards and did not in consequences put forward a specific claim for rehabilitation, it would not be fair or just that he should be precluded from making such a claim even after his general claim for the deduction of 15 per cent. is disallowed. After all, the Full Bench formula has recognised the existence of four items as constituting a prior charge on principles of social justice and if, in the present case. the employer failed to make out a claim for deduction of one of the items substantially as a result of the previous awards passed in its favour, he cannot be penalised as suggested by Mr. Jha. We would accordingly allow the appellant to put forward before the tribunal a specific claim under the heading of rehabilitation and lead evidence in support of the said claim.There is another point on which Mr. Sanyal has requested us to call for a finding from the tribunal. His case is that the award of the tribunal in one material particular suffers from an error apparent on the face of the record. In the award, the initial contribution to the pension fund and the annual contribution to the pension fund have been added back for both the years in respect of all the companies. Mr. Sanyal contends that the amount added back under the heading "annual contribution to the pension fund" really includes the initial contribution to the said fund also, and so it was erroneous to have added back a separate amount under the heading "the initial contribution to the pension fund". In other words, the grievance is that the amount of the initial contribution has been added back twice.Mr. Jha, for the respondents,does not accept Mr. Sanyals contention that this is an error apparent on the face of the record. He disputes the assumption made by Mr. Sanyal that the annual contribution to the pension fund in each case includes the initial contribution as well.We do not propose to express any opinion on the merits of this dispute. We think it is desirable that the tribunal should be requested to make its finding on the question as to whether the amount of initial contribution has been added back twice over as suggested by the appellant. This is the second point which we want to remit for the consideration of the tribunal.Jha contends that, since this amount has been written off as depreciation, in calculating the available surplus for the year no amount should be allowed by way of statutory depreciation. This argument has been considered by the tribunal in para 20 of its award but Mr. Jha wants to challenge the correctness of the conclusion reached by the tribunal. We would normally not have allowed Mr. Jhas request for a reconsideration of this matter; but since on two points raised by the appellant we are remanding the case to the tribunal and calling for its findings on the said points we think it right to allow the respondents an opportunity tothis point. In fairness to Mr. Sanyal we may add that he did not object to this matter being remitted to the tribunal for reconsideration. We would, however, like to make it clear that in dealing with this point it would not be open to the respondents to contend that the appellant was not entitled to claim additional depreciation under the head of statutory depreciation. This Court has held in Sree Meenakshi Mills Ltd. v. Their Workmen, AIR 1958 SC 153 (H) that additional depreciation which is admissible under S. 10(vi) of theAct need not necessarily be allowed by industrial courts in determining the available surplus under the Full Bench formula. We wish to make it clear that it would not be open to the respondents to raise any contention on the strength of this decision under the issue which is being remitted to the tribunal at their request. | 1 | 8,200 | 1,904 | ### Instruction:
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the appellate tribunal has observed that for determining the total amount required for rehabilitation it is the original cost that has to be multiplied by an appropriate multiple, for instance 2.7, for the purpose of ascertaing in the replacement value of the machinery, buildings and plant. From the amount thus obtained 5 per cent. of the original value is to be deducted as breakdown value. The balance is treated as sufficient to complete replacement of machinery and buildings. Then the amount in hand under the head of depreciation, general reserve and rehabilitation have to be totalled and this total has to be deduted from the aforesaid balance which is required to complete replacement of machinery and buildings. It is the balance thus drawn that has to be spread over a number of years, as for in instance 15, for the purpose of rehabilitation; in other words, the balance has to be divided by 15 and the amount thus determined has to be treated as prior charge under the heading of rehabilitation for the relevant year.Vide Meenakshi Mills Ltd., Madurai and Manapparai v. Their Workmen, 1954 Lab AC 131 (LATI-Luck) (E); The Rohtas Sugar Ltd. v. Their Workmen, 1954 Lab AC 168 at p. 184 (LATI-Cal) (F) and Mettur Industries Ltd., Mettur Dam v. The Workers, 1957 Lab AC 288 (LATI-Bom)(G). Thus the appellants claim for rehabilitation would have to be tried by the tribunal in the light of these decisions.In the application of the principles discussed in these decisions, industrial adjudication cannot adopt an inflexible or rigid approach; these principles will have to be applied with such modifications and adjustments as may be found necessary, just and expedient having regard to the evidence led by the parties before the tribunal and having regard to the special needs and requirements of the industry. This position appears to be fully recognised by the Labour Appellate Tribunal in these decisions themselves.21. There is another point on which Mr. Sanyal has requested us to call for a finding from the tribunal. His case is that the award of the tribunal in one material particular suffers from an error apparent on the face of the record. In the award, the initial contribution to the pension fund and the annual contribution to the pension fund have been added back for both the years in respect of all the companies. Mr. Sanyal contends that the amount added back under the heading "annual contribution to the pension fund" really includes the initial contribution to the said fund also, and so it was erroneous to have added back a separate amount under the heading "the initial contribution to the pension fund". In other words, the grievance is that the amount of the initial contribution has been added back twice. Mr. Jha, for the respondents, does not accept Mr. Sanyals contention that this is an error apparent on the face of the record. He disputes the assumption made by Mr. Sanyal that the annual contribution to the pension fund in each case includes the initial contribution as well. We do not propose to express any opinion on the merits of this dispute. We think it is desirable that the tribunal should be requested to make its finding on the question as to whether the amount of initial contribution has been added back twice over as suggested by the appellant. This is the second point which we want to remit for the consideration of the tribunal.22. The third point which we propose to remit for the consideration of the tribunal has been raised by Mr. Jha for the respondents. He argues that the tribunal has committed an obvious error in allowing a deduction of statutory depreciation to each one of the companies for both the years in question and in support of his argument he relies on the statements contained in the report of the directors in each case. As an illustration we should refer to the report and accounts of the Nundydroog Mines (KGF) Ltd., for the year ended December 31, 1953. In this report, under the item "capital expenditure", it is stated that the sum of Rs. 13,50,000 being depreciation for the period April 1, 1951 to December 31, 1953 has now been written off. Mr. Jha contends that, since this amount has been written off as depreciation, in calculating the available surplus for the year no amount should be allowed by way of statutory depreciation. This argument has been considered by the tribunal in para 20 of its award but Mr. Jha wants to challenge the correctness of the conclusion reached by the tribunal. We would normally not have allowed Mr. Jhas request for a reconsideration of this matter; but since on two points raised by the appellant we are remanding the case to the tribunal and calling for its findings on the said points we think it right to allow the respondents an opportunity to re-agitate this point. In fairness to Mr. Sanyal we may add that he did not object to this matter being remitted to the tribunal for reconsideration. We would, however, like to make it clear that in dealing with this point it would not be open to the respondents to contend that the appellant was not entitled to claim additional depreciation under the head of statutory depreciation. This Court has held in Sree Meenakshi Mills Ltd. v. Their Workmen, AIR 1958 SC 153 (H) that additional depreciation which is admissible under S. 10(vi) of the Income-tax. Act need not necessarily be allowed by industrial courts in determining the available surplus under the Full Bench formula. We wish to make it clear that it would not be open to the respondents to raise any contention on the strength of this decision under the issue which is being remitted to the tribunal at their request.23. It is somewhat unfortunate that, though we have held against the appellant on the main points urged by Mr. Sanyal before us, we cannot finally dispose of the appeal today.
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better evidence in support of theircase. As the evidence stands, however, it is difficult to challenge the correctness of the view taken by the tribunal that the amounts shown in the different extracts from theare a mixture of very many items depending upon the options exercised by the management and that it would be impossible to say which part of the said amounts can be legitimately treated as prior charge under the heading of rehabilitation. That is why we do not think that Mr. Sanyal can succeed in his argument that, on the evidence as it stands, the appellant is entitled to any particular amount under the heading ofour opinion, whether or not this particular amount should be allowed as claimed by the appellant does not raise any general question of law and the reasonableness of the claim has, therefore, to be judged in the light of all relevant facts and circumstances. As the tribunal has found against the appellant on this point we do not think we would be justified in interfering with the decision of theis clear that the respondents were found entitled to bonus for the year 1950, because the companies held in their hands sufficient available surplus from the trading profits of that year.In the absence of satisfactory evidence, normally the bonus paid to the respondents for the year 1950 cannot be brought into accounting for a subsequent year. We are, therefore, satisfied that the appellant cannot successfully challenge the tribunals finding on this question.. Jha, for the respondents, has resisted the appellants request for a remand to enable it to put forward this claim for rehabilitation. He argues that the companies deliberately did not make a specific claim for rehabilitation and chose to rest their case on the relevant terms of the contract because they knew that a claim for rehabilitation would not be sustained. In this connection Mr. Jha referred us to the principles adopted by industrial courts in determining the employers claims forare not impressed by this argument. It seems to us that, if the employer was partly misled by the previous awards and did not in consequences put forward a specific claim for rehabilitation, it would not be fair or just that he should be precluded from making such a claim even after his general claim for the deduction of 15 per cent. is disallowed. After all, the Full Bench formula has recognised the existence of four items as constituting a prior charge on principles of social justice and if, in the present case. the employer failed to make out a claim for deduction of one of the items substantially as a result of the previous awards passed in its favour, he cannot be penalised as suggested by Mr. Jha. We would accordingly allow the appellant to put forward before the tribunal a specific claim under the heading of rehabilitation and lead evidence in support of the said claim.There is another point on which Mr. Sanyal has requested us to call for a finding from the tribunal. His case is that the award of the tribunal in one material particular suffers from an error apparent on the face of the record. In the award, the initial contribution to the pension fund and the annual contribution to the pension fund have been added back for both the years in respect of all the companies. Mr. Sanyal contends that the amount added back under the heading "annual contribution to the pension fund" really includes the initial contribution to the said fund also, and so it was erroneous to have added back a separate amount under the heading "the initial contribution to the pension fund". In other words, the grievance is that the amount of the initial contribution has been added back twice.Mr. Jha, for the respondents,does not accept Mr. Sanyals contention that this is an error apparent on the face of the record. He disputes the assumption made by Mr. Sanyal that the annual contribution to the pension fund in each case includes the initial contribution as well.We do not propose to express any opinion on the merits of this dispute. We think it is desirable that the tribunal should be requested to make its finding on the question as to whether the amount of initial contribution has been added back twice over as suggested by the appellant. This is the second point which we want to remit for the consideration of the tribunal.Jha contends that, since this amount has been written off as depreciation, in calculating the available surplus for the year no amount should be allowed by way of statutory depreciation. This argument has been considered by the tribunal in para 20 of its award but Mr. Jha wants to challenge the correctness of the conclusion reached by the tribunal. We would normally not have allowed Mr. Jhas request for a reconsideration of this matter; but since on two points raised by the appellant we are remanding the case to the tribunal and calling for its findings on the said points we think it right to allow the respondents an opportunity tothis point. In fairness to Mr. Sanyal we may add that he did not object to this matter being remitted to the tribunal for reconsideration. We would, however, like to make it clear that in dealing with this point it would not be open to the respondents to contend that the appellant was not entitled to claim additional depreciation under the head of statutory depreciation. This Court has held in Sree Meenakshi Mills Ltd. v. Their Workmen, AIR 1958 SC 153 (H) that additional depreciation which is admissible under S. 10(vi) of theAct need not necessarily be allowed by industrial courts in determining the available surplus under the Full Bench formula. We wish to make it clear that it would not be open to the respondents to raise any contention on the strength of this decision under the issue which is being remitted to the tribunal at their request.
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Hope Textiles Limited and Another Vs. Union of India and Others | 1. This appeal is preferred against the decisions of Madhya Pradesh High Court. The assessee is a limited company. For the Assessment Year 1971-72, it filed a return on the basis of which an order of assessment was made on 27-3-1974. By the said order, certain losses disclosed by the assessee were accepted. On 21-2-1976, a notice under Section 148 of the INcome Tax Act was issued to the appellant, in pursuance whereof it filed on27-3-1976 for disclosing further losses. No orders were passed till about September 1981 in the reassessment proceedings. The appellants say that on that date, they were informed that no order will be passed pursuant to the notice under Section 148. Thereupon, the appellants approached the High Court by way of a writ petition for issuance of mandamus to the ITO to pass orders in pursuance of the aforesaid notice. The writ petition was dismissed observing that no mandamus can be issued compelling the ITO to make an order of assessment beyond the period of limitation prescribed by Section 153(2). In this appeal, it is urged by Shri. Sen, learned counsel for the appellant that by virtue of clause (ii) of subsection (3) of Section 153, the High Court could have directed the ITO to pass an order of reassessment pursuant to the aforesaid notice, notwithstanding the expiry of the period prescribed in sub- section (2) of section 153. We are not prepared to agree. A writ statutory obligation. It cannot issue to compel him to pass an order in violation of a statutory provision. The ITO had no power to make a reassessment beyond the other sub-sections under Section 153 or other provision extending the said period of limitation. No such provision is brought to our notice. The only provision relied upon is clause (ii) in sub-section (3). Sub-section (3) reads as follows " (3) The provisions of sub-section (1) and (2) shall not apply to the following classes of assessments, reassessments and recomputations which may subject to the provisions of sub-section (2-A), be completed at any time- (i) where a fresh assessment is made under Section 146 (ii) where the assessment, reassessment or recomputation is made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order, under Section 250, 254, 260, 263 or 264 or in an order of any court in a proceeding otherwise than by way of appeal or reference under this Act; (iii) where, in the case of a firm, an assessment is made on the firm in consequence of an assessment made on the firm under Section 147." * 2. On a reading of clause (ii), it would be evident that it in no way helps the appellants. It contemplates a situation where certain orders have to be passed in consequence of or to give effect to any finding or direction contained in any order passed under the provisions referred to therein or in an order of any court in a proceeding otherwise then by way of appeal or reference under of any court in a proceeding otherwise than by way of appeal or reference under this Act. This sub-clause cannot be understood as empowering the High Court to give a direction to the authority under the Act to ignore the period of limitation prescribed in the Act 3. Shri. Sen, learned counsel, relies upon the decision of Allahabad High Court in Vithaldas v. Income Tax Officer, District II (ii), Kanpur. In that case, an order of assessment was made subject to rectification under Section 35 of the Act. The order of assessment was dated 15-12-1955. Under Section 35, the rectification could have been made only by March 1960. It was allowed holding that the ITO was under an obligation to make an order of rectification and that the expiry of period of limitation is no answer. We must understand the said direction as confined to the particular facts and circumstances of that case. That said decision cannot be understood as laying down a proposition that an authority under Act can be directed to make an order beyond the period of limitation prescribed by the statute | 0[ds]In that case, an order of assessment was made subject to rectification under Section 35 of the Act. The order of assessment was dated. Under Section 35, the rectification could have been made only by March 1960. It was allowed holding that the ITO was under an obligation to make an order of rectification and that the expiry of period of limitation is no answer. We must understand the said direction as confined to the particular facts and circumstances of that case. That said decision cannot be understood as laying down a proposition that an authority under Act can be directed to make an order beyond the period of limitation prescribed by the statute | 0 | 792 | 126 | ### Instruction:
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1. This appeal is preferred against the decisions of Madhya Pradesh High Court. The assessee is a limited company. For the Assessment Year 1971-72, it filed a return on the basis of which an order of assessment was made on 27-3-1974. By the said order, certain losses disclosed by the assessee were accepted. On 21-2-1976, a notice under Section 148 of the INcome Tax Act was issued to the appellant, in pursuance whereof it filed on27-3-1976 for disclosing further losses. No orders were passed till about September 1981 in the reassessment proceedings. The appellants say that on that date, they were informed that no order will be passed pursuant to the notice under Section 148. Thereupon, the appellants approached the High Court by way of a writ petition for issuance of mandamus to the ITO to pass orders in pursuance of the aforesaid notice. The writ petition was dismissed observing that no mandamus can be issued compelling the ITO to make an order of assessment beyond the period of limitation prescribed by Section 153(2). In this appeal, it is urged by Shri. Sen, learned counsel for the appellant that by virtue of clause (ii) of subsection (3) of Section 153, the High Court could have directed the ITO to pass an order of reassessment pursuant to the aforesaid notice, notwithstanding the expiry of the period prescribed in sub- section (2) of section 153. We are not prepared to agree. A writ statutory obligation. It cannot issue to compel him to pass an order in violation of a statutory provision. The ITO had no power to make a reassessment beyond the other sub-sections under Section 153 or other provision extending the said period of limitation. No such provision is brought to our notice. The only provision relied upon is clause (ii) in sub-section (3). Sub-section (3) reads as follows " (3) The provisions of sub-section (1) and (2) shall not apply to the following classes of assessments, reassessments and recomputations which may subject to the provisions of sub-section (2-A), be completed at any time- (i) where a fresh assessment is made under Section 146 (ii) where the assessment, reassessment or recomputation is made on the assessee or any person in consequence of or to give effect to any finding or direction contained in an order, under Section 250, 254, 260, 263 or 264 or in an order of any court in a proceeding otherwise than by way of appeal or reference under this Act; (iii) where, in the case of a firm, an assessment is made on the firm in consequence of an assessment made on the firm under Section 147." * 2. On a reading of clause (ii), it would be evident that it in no way helps the appellants. It contemplates a situation where certain orders have to be passed in consequence of or to give effect to any finding or direction contained in any order passed under the provisions referred to therein or in an order of any court in a proceeding otherwise then by way of appeal or reference under of any court in a proceeding otherwise than by way of appeal or reference under this Act. This sub-clause cannot be understood as empowering the High Court to give a direction to the authority under the Act to ignore the period of limitation prescribed in the Act 3. Shri. Sen, learned counsel, relies upon the decision of Allahabad High Court in Vithaldas v. Income Tax Officer, District II (ii), Kanpur. In that case, an order of assessment was made subject to rectification under Section 35 of the Act. The order of assessment was dated 15-12-1955. Under Section 35, the rectification could have been made only by March 1960. It was allowed holding that the ITO was under an obligation to make an order of rectification and that the expiry of period of limitation is no answer. We must understand the said direction as confined to the particular facts and circumstances of that case. That said decision cannot be understood as laying down a proposition that an authority under Act can be directed to make an order beyond the period of limitation prescribed by the statute
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In that case, an order of assessment was made subject to rectification under Section 35 of the Act. The order of assessment was dated. Under Section 35, the rectification could have been made only by March 1960. It was allowed holding that the ITO was under an obligation to make an order of rectification and that the expiry of period of limitation is no answer. We must understand the said direction as confined to the particular facts and circumstances of that case. That said decision cannot be understood as laying down a proposition that an authority under Act can be directed to make an order beyond the period of limitation prescribed by the statute
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Taluk Land Board, Kozhikode and others Vs. Dr. Babucommen Thomas | RAMASWAMY, K. & HANSARIA B.L. (J) 1. Leave granted. 2. Respondent admittedly had purchased cashewnut estate on 16-4-1969. The State Government of Kerala introduced the Land Reforms Bill, 1963 on 1-4-1964. One of the clauses relates to taking away exemption of cashewnut estate or its conversion from the purview of the Kerala Land Reforms Act, 1963 (for short, the Act). The Bill was made Act 35 of 1969 with effect from 1-1-1970. Section 82(4) of the Act declares that where after the commencement of the Act, any class of land specified in Schedule II has been converted into any other class of land specified in that Schedule or into a plantation, the extent of land liable to be surrendered by a person owning or holding such land shall be determined without taking into consideration such conversion. Section 84(1) reads thus. "84. Certain voluntary transfers to be null and void. - (1) Notwithstanding anything contained in any law for the time being in force, all voluntary transfers effected after the date of publication of the Kerala Land Reforms Bill, 1963, in the Gazette, otherwise than -(i) by way of partition; or(iii) in favour of a person who was a tenant of the holding before the 27th July, 1960, and continued to be so till the date of transfer;by a family or any member thereof or by an adult unmarried person owning or holding land in excess of the ceiling area, or otherwise than by way of gift in favour of his son or daughter, or the son or daughter of his predeceased son or daughter by any person owning or holding land in excess of the ceiling area shall be deemed to be transfers calculated to defeat the provisions of this Act and shall be invalid." * 3. The voluntary sale is not one of the exempted transfers mentioned in Section 84(1). On the other hand, all voluntary transfers other than those excepted, should be deemed to be transfers calculated to defeat the provisions of the Act and should be invalid. The question, therefore, is whether the land purchased by the respondent was intended to defeat the purpose of the Act and is invalid4. This Court in P. J. Thomas v. Taluk Land Board considered the question of transfer and conversion under Section 82(4) and held that the conversion of cashew estate also will not be saved and it will come squarely within the mischief of Section 84(1) of the Act. This is what the Court held : (SCC p. 305, para 10) "The transfer falling under Section 84 cannot be equated to the conversion falling under Section 82(4). The ceiling provisions contained in Sections 82 and 83 came into force on 1-1-1970. The computation of the ceiling area has to be made in accordance with the provisions contained under Section 82 as it stood on 1-1-1970. Under sub-section (4) of Section 82 where any class of land specified in Schedule II has been converted into a plantation after the commencement of the Act, the extent of land liable to be surrendered by a person owning or holding such land has to be determined without taking into consideration such conversion. Cashew estate is land specified in Schedule II as on 1-4-1964 as well as on 1-1-1970. Therefore, the conversion of cashew estate after 1-4-1964 and before 1-1-1970 into plantation would squarely come under the mischief of this sub-section." * 5. The facts of this case stand on a higher footing than the facts therein. In this case, Section 84(1) specifically declares such voluntary transfers to be invalid. In other words, such transfers are void and of no effect. Admittedly, the transfer was effected within the prohibited period namely between 1-4-1964 and 1-1-1970. Therefore, the sale is a void sale. Thereby the respondents cannot save the cashew land purchased under the void sale from the purview of the Act 6. Mr. Balakrishnan, learned counsel for the respondent, then sought to rely on Section 85(1) Explanation (a) and contended that the respondent having purchased the land was transferee under the transfer and, therefore, his rights in the land were not affected but the extent of land purchased can be calculated for fixing the extent of land to be surrendered and the company should be directed to surrender excess land excluding the land under the sale. We fail to appreciate the contention. The purpose of Section 85(1), clause (a) to the explanation seems to be that such of the transfers effected within the prohibited period and saved by sub-section (1) of Section 84 were treated to be valid transfers and to that extent they cannot have any effect while directing surrender of the excess land. But voluntary transfers which are void, cannot be saved in computing the excess land under Section 85 of the Act. Therefore, the High Court was clearly in error in its judgment dated 27-6-1989 in CRP No. 879 of 1989 that the lands got exempted by clause (a) to the explanation to Section 85(1) of the Act 7. Mr. Balakrishnan also seeks to place reliance on State of Kerala v. Philomina. The ratio therein was also considered and explained by this Court in P. J. Thomas case. We respectfully agree with the reasoning in Thomas Case | 1[ds]5. The facts of this case stand on a higher footing than the facts therein. In this case, Section 84(1) specifically declares such voluntary transfers to be invalid. In other words, such transfers are void and of no effect. Admittedly, the transfer was effected within the prohibited period namely between 1-4-1964 and 1-1-1970. Therefore, the sale is a void sale. Thereby the respondents cannot save the cashew land purchased under the void sale from the purview of thefail to appreciate the contention. The purpose of Section 85(1), clause (a) to the explanation seems to be that such of the transfers effected within the prohibited period and saved by sub-section (1) of Section 84 were treated to be valid transfers and to that extent they cannot have any effect while directing surrender of the excess land. But voluntary transfers which are void, cannot be saved in computing the excess land under Section 85 of the Act. Therefore, the High Court was clearly in error in its judgment dated 27-6-1989 in CRP No. 879 of 1989 that the lands got exempted by clause (a) to the explanation to Section 85(1) of theratio therein was also considered and explained by this Court in P. J. Thomas case. We respectfully agree with the reasoning in Thomas Case | 1 | 1,012 | 253 | ### 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:
RAMASWAMY, K. & HANSARIA B.L. (J) 1. Leave granted. 2. Respondent admittedly had purchased cashewnut estate on 16-4-1969. The State Government of Kerala introduced the Land Reforms Bill, 1963 on 1-4-1964. One of the clauses relates to taking away exemption of cashewnut estate or its conversion from the purview of the Kerala Land Reforms Act, 1963 (for short, the Act). The Bill was made Act 35 of 1969 with effect from 1-1-1970. Section 82(4) of the Act declares that where after the commencement of the Act, any class of land specified in Schedule II has been converted into any other class of land specified in that Schedule or into a plantation, the extent of land liable to be surrendered by a person owning or holding such land shall be determined without taking into consideration such conversion. Section 84(1) reads thus. "84. Certain voluntary transfers to be null and void. - (1) Notwithstanding anything contained in any law for the time being in force, all voluntary transfers effected after the date of publication of the Kerala Land Reforms Bill, 1963, in the Gazette, otherwise than -(i) by way of partition; or(iii) in favour of a person who was a tenant of the holding before the 27th July, 1960, and continued to be so till the date of transfer;by a family or any member thereof or by an adult unmarried person owning or holding land in excess of the ceiling area, or otherwise than by way of gift in favour of his son or daughter, or the son or daughter of his predeceased son or daughter by any person owning or holding land in excess of the ceiling area shall be deemed to be transfers calculated to defeat the provisions of this Act and shall be invalid." * 3. The voluntary sale is not one of the exempted transfers mentioned in Section 84(1). On the other hand, all voluntary transfers other than those excepted, should be deemed to be transfers calculated to defeat the provisions of the Act and should be invalid. The question, therefore, is whether the land purchased by the respondent was intended to defeat the purpose of the Act and is invalid4. This Court in P. J. Thomas v. Taluk Land Board considered the question of transfer and conversion under Section 82(4) and held that the conversion of cashew estate also will not be saved and it will come squarely within the mischief of Section 84(1) of the Act. This is what the Court held : (SCC p. 305, para 10) "The transfer falling under Section 84 cannot be equated to the conversion falling under Section 82(4). The ceiling provisions contained in Sections 82 and 83 came into force on 1-1-1970. The computation of the ceiling area has to be made in accordance with the provisions contained under Section 82 as it stood on 1-1-1970. Under sub-section (4) of Section 82 where any class of land specified in Schedule II has been converted into a plantation after the commencement of the Act, the extent of land liable to be surrendered by a person owning or holding such land has to be determined without taking into consideration such conversion. Cashew estate is land specified in Schedule II as on 1-4-1964 as well as on 1-1-1970. Therefore, the conversion of cashew estate after 1-4-1964 and before 1-1-1970 into plantation would squarely come under the mischief of this sub-section." * 5. The facts of this case stand on a higher footing than the facts therein. In this case, Section 84(1) specifically declares such voluntary transfers to be invalid. In other words, such transfers are void and of no effect. Admittedly, the transfer was effected within the prohibited period namely between 1-4-1964 and 1-1-1970. Therefore, the sale is a void sale. Thereby the respondents cannot save the cashew land purchased under the void sale from the purview of the Act 6. Mr. Balakrishnan, learned counsel for the respondent, then sought to rely on Section 85(1) Explanation (a) and contended that the respondent having purchased the land was transferee under the transfer and, therefore, his rights in the land were not affected but the extent of land purchased can be calculated for fixing the extent of land to be surrendered and the company should be directed to surrender excess land excluding the land under the sale. We fail to appreciate the contention. The purpose of Section 85(1), clause (a) to the explanation seems to be that such of the transfers effected within the prohibited period and saved by sub-section (1) of Section 84 were treated to be valid transfers and to that extent they cannot have any effect while directing surrender of the excess land. But voluntary transfers which are void, cannot be saved in computing the excess land under Section 85 of the Act. Therefore, the High Court was clearly in error in its judgment dated 27-6-1989 in CRP No. 879 of 1989 that the lands got exempted by clause (a) to the explanation to Section 85(1) of the Act 7. Mr. Balakrishnan also seeks to place reliance on State of Kerala v. Philomina. The ratio therein was also considered and explained by this Court in P. J. Thomas case. We respectfully agree with the reasoning in Thomas Case
### Response:
1
### Explanation:
5. The facts of this case stand on a higher footing than the facts therein. In this case, Section 84(1) specifically declares such voluntary transfers to be invalid. In other words, such transfers are void and of no effect. Admittedly, the transfer was effected within the prohibited period namely between 1-4-1964 and 1-1-1970. Therefore, the sale is a void sale. Thereby the respondents cannot save the cashew land purchased under the void sale from the purview of thefail to appreciate the contention. The purpose of Section 85(1), clause (a) to the explanation seems to be that such of the transfers effected within the prohibited period and saved by sub-section (1) of Section 84 were treated to be valid transfers and to that extent they cannot have any effect while directing surrender of the excess land. But voluntary transfers which are void, cannot be saved in computing the excess land under Section 85 of the Act. Therefore, the High Court was clearly in error in its judgment dated 27-6-1989 in CRP No. 879 of 1989 that the lands got exempted by clause (a) to the explanation to Section 85(1) of theratio therein was also considered and explained by this Court in P. J. Thomas case. We respectfully agree with the reasoning in Thomas Case
|
Zenith Steel Tubes & Industries Limited (Formerly Avs Industries Limited) & Another Vs. Sicom Limited | Bombay 247, and Ved Prakash Agarwal v. Rama Petrochemicals Ltd., reported in 2004 (4) Bom.C.R. 578 while challenging the impugned order. The learned Advocate appearing for the respondents has drawn attention to the decision of this Court in Dewal Singhal v. State of Maharashtra, reported in 2001 Company Cases Vol.106 page 587 and an unreported decision of a Division Bench of this Court in Appeal No.205 of 2006 in Misc. Petition No.61 of 2000 (Vinod Kumar M. Gadia & Anr. v. SICOM Limited), delivered on 18-4-2006. The learned single Judge while passing the impugned order has placed reliance in his Judgment delivered in Misc. Petition No.61 of 2000. The Appeal No.205 of 2006 was filed against the said Judgment in Misc. Petition No.61 of 2000 and it was disposed of by the said order dated 18-4-2006, confirming the Judgment delivered by the learned single Judge in Misc. Petition No.61 of 2000.3.The appellant No.2 is the guarantor for the appellant No.1 for repayment of loan by the latter to the respondents. On account of default in repayment of loan, in November, 2000 the respondents took out proceedings under Sections 31(1)(aa) and 32 of the State Financial Corporations Act, 1951, hereinafter called as "the said Act". During the pendency of those proceedings, the BIFR by its order dated 23-5-2002 declared the appellant No.1 as a sick industrial company in Reference Case No.131 of 1999. Consequent to the said declaration, objection was sought to be raised before the learned single Judge in the proceedings under the said Act that in view of Section 22 of SICA the personal guarantee cannot be invoked against the appellant No.2, and secondly, that the guarantee cannot be enforced unless the assets which are mortgaged are realised. Both the contentions were rejected by the impugned order. Hence the appeal.4.The first point for consideration which arises relates to bar under Section 22 to the proceedings under Section 37(1)(aa) of the said Act. In this regard, the Division Bench of this Court in Dewal Singhals case (supra) had clearly ruled, after taking into consideration the earlier decisions of this Court as well as of the Apex Court, that only "suit" against the guarantor of a loan granted to the industrial company which has been declared as sick under the SICA is barred under Section 22 of the SICA and no other proceedings. In fact, with the said decision, the law is well-settled on this aspect and we do not find any decision, either of this Court or the Apex Court, contrary to the law laid down in that regard in Dewal Singhals case. The decisions sought to be relied upon by the learned Advocate for the appellants nowhere assists the appellants in the matter in hand. The decision in Maharashtra Tubes case (supra) was prior to the amendment which was introduced to Section 22 of Act 12 of 1994. The decision was delivered on 29-1-1993. The amended provision of Section 22 clearly specifies that no "suit" for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company shall lie. It does not prohibit any proceeding other than a suit in that regard and the law in that regard has been clearly laid down by the Division Bench of this Court in Dewal Singhals case. The decision in Maharashtra Tubes case, therefore, is of no help to the appellants.5.As far as the decision in Madalsa Internationals case (supra) is concerned, it was in relation to execution proceedings and the Division Bench therein has held that considering the provisions of law, the Court is of the clear opinion that the word "suit" in the amended portion of Section 22 cannot include in its ambit execution or execution proceedings. The decision, rather than assisting the appellants, clearly justifies the order passed by the learned single Judge.6.The second point for consideration relates to the contention that the guarantee cannot be enforced unless the creditor first proceeds against the mortgaged property. As regards the liability of the guarantor being co-extensive with the principal is also well-settled and the creditor need not necessarily exercise his right as the mortgagee prior to proceeding against the guarantor to recover the dues is also well-settled by a catena of decisions of the Apex Court (vide: The Bank of Bihar Ltd., v. Dr. Damodar Prasad and another, reported in AIR 1969 SC 297 and State Bank of India v. Messrs. Indexport Registered, reported in AIR 1992 SC 1740 ).7.As regards the decision in Patheja Bros. Forgings & Stamping and another v. ICICI Ltd. and others, reported in 2000 (6) SCC 545 , it was in relation to suit against guarantor. The decision of the Division Bench in Ved Prakash Agarwals case (supra) was also in relation to the suit for enforcement of guarantee and not the proceedings of the nature initiated in the matter in hand under Section 31 of the said Act. However, it was also specifically ruled that merely because an industrial company is protected, the guarantor does not get protected automatically.8.There is absolutely no substance in the appeal. In fact, the main contention of the appellants relates to non-maintainability of the proceedings in view of Section 22. As already seen above, the law on this point is well-settled and considering the same, while the arguments were being heard, on three occasions the learned Advocate appearing for the appellants was asked as to whether the appellants would like to withdraw the appeal. On all the three occasions, the learned Advocate chose to insist to argue and invite judgment in the matter. Insistence for judgment on the point which is already well-settled by the decision of the Apex Court is nothing but waste of the time of the Court. The learned Advocate was not able to point out any point as such, nor could distinguish the above referred decisions with reference to the facts of the case in hand. | 0[ds]In this regard, the Division Bench of this Court in Dewal Singhals case (supra) had clearly ruled, after taking into consideration the earlier decisions of this Court as well as of the Apex Court, that only "suit" against the guarantor of a loan granted to the industrial company which has been declared as sick under the SICA is barred under Section 22 of the SICA and no other proceedings. In fact, with the said decision, the law ison this aspect and we do not find any decision, either of this Court or the Apex Court, contrary to the law laid down in that regard in Dewal Singhals case. The decisions sought to be relied upon by the learned Advocate for the appellants nowhere assists the appellants in the matter in hand. The decision in Maharashtra Tubes case (supra) was prior to the amendment which was introduced to Section 22 of Act 12 of 1994. The decision was delivered onThe amended provision of Section 22 clearly specifies that no "suit" for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company shall lie. It does not prohibit any proceeding other than a suit in that regard and the law in that regard has been clearly laid down by the Division Bench of this Court in Dewal Singhals case. The decision in Maharashtra Tubes case, therefore, is of no help to the appellants.5.As far as the decision in Madalsa Internationals case (supra) is concerned, it was in relation to execution proceedings and the Division Bench therein has held that considering the provisions of law, the Court is of the clear opinion that the word "suit" in the amended portion of Section 22 cannot include in its ambit execution or execution proceedings. The decision, rather than assisting the appellants, clearly justifies the order passed by the learned singleis absolutely no substance in the appeal. In fact, the main contention of the appellants relates toof the proceedings in view of Section 22. As already seen above, the law on this point isand considering the same, while the arguments were being heard, on three occasions the learned Advocate appearing for the appellants was asked as to whether the appellants would like to withdraw the appeal. On all the three occasions, the learned Advocate chose to insist to argue and invite judgment in the matter. Insistence for judgment on the point which is alreadyby the decision of the Apex Court is nothing but waste of the time of the Court. The learned Advocate was not able to point out any point as such, nor could distinguish the above referred decisions with reference to the facts of the case in hand. | 0 | 1,284 | 513 | ### 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:
Bombay 247, and Ved Prakash Agarwal v. Rama Petrochemicals Ltd., reported in 2004 (4) Bom.C.R. 578 while challenging the impugned order. The learned Advocate appearing for the respondents has drawn attention to the decision of this Court in Dewal Singhal v. State of Maharashtra, reported in 2001 Company Cases Vol.106 page 587 and an unreported decision of a Division Bench of this Court in Appeal No.205 of 2006 in Misc. Petition No.61 of 2000 (Vinod Kumar M. Gadia & Anr. v. SICOM Limited), delivered on 18-4-2006. The learned single Judge while passing the impugned order has placed reliance in his Judgment delivered in Misc. Petition No.61 of 2000. The Appeal No.205 of 2006 was filed against the said Judgment in Misc. Petition No.61 of 2000 and it was disposed of by the said order dated 18-4-2006, confirming the Judgment delivered by the learned single Judge in Misc. Petition No.61 of 2000.3.The appellant No.2 is the guarantor for the appellant No.1 for repayment of loan by the latter to the respondents. On account of default in repayment of loan, in November, 2000 the respondents took out proceedings under Sections 31(1)(aa) and 32 of the State Financial Corporations Act, 1951, hereinafter called as "the said Act". During the pendency of those proceedings, the BIFR by its order dated 23-5-2002 declared the appellant No.1 as a sick industrial company in Reference Case No.131 of 1999. Consequent to the said declaration, objection was sought to be raised before the learned single Judge in the proceedings under the said Act that in view of Section 22 of SICA the personal guarantee cannot be invoked against the appellant No.2, and secondly, that the guarantee cannot be enforced unless the assets which are mortgaged are realised. Both the contentions were rejected by the impugned order. Hence the appeal.4.The first point for consideration which arises relates to bar under Section 22 to the proceedings under Section 37(1)(aa) of the said Act. In this regard, the Division Bench of this Court in Dewal Singhals case (supra) had clearly ruled, after taking into consideration the earlier decisions of this Court as well as of the Apex Court, that only "suit" against the guarantor of a loan granted to the industrial company which has been declared as sick under the SICA is barred under Section 22 of the SICA and no other proceedings. In fact, with the said decision, the law is well-settled on this aspect and we do not find any decision, either of this Court or the Apex Court, contrary to the law laid down in that regard in Dewal Singhals case. The decisions sought to be relied upon by the learned Advocate for the appellants nowhere assists the appellants in the matter in hand. The decision in Maharashtra Tubes case (supra) was prior to the amendment which was introduced to Section 22 of Act 12 of 1994. The decision was delivered on 29-1-1993. The amended provision of Section 22 clearly specifies that no "suit" for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company shall lie. It does not prohibit any proceeding other than a suit in that regard and the law in that regard has been clearly laid down by the Division Bench of this Court in Dewal Singhals case. The decision in Maharashtra Tubes case, therefore, is of no help to the appellants.5.As far as the decision in Madalsa Internationals case (supra) is concerned, it was in relation to execution proceedings and the Division Bench therein has held that considering the provisions of law, the Court is of the clear opinion that the word "suit" in the amended portion of Section 22 cannot include in its ambit execution or execution proceedings. The decision, rather than assisting the appellants, clearly justifies the order passed by the learned single Judge.6.The second point for consideration relates to the contention that the guarantee cannot be enforced unless the creditor first proceeds against the mortgaged property. As regards the liability of the guarantor being co-extensive with the principal is also well-settled and the creditor need not necessarily exercise his right as the mortgagee prior to proceeding against the guarantor to recover the dues is also well-settled by a catena of decisions of the Apex Court (vide: The Bank of Bihar Ltd., v. Dr. Damodar Prasad and another, reported in AIR 1969 SC 297 and State Bank of India v. Messrs. Indexport Registered, reported in AIR 1992 SC 1740 ).7.As regards the decision in Patheja Bros. Forgings & Stamping and another v. ICICI Ltd. and others, reported in 2000 (6) SCC 545 , it was in relation to suit against guarantor. The decision of the Division Bench in Ved Prakash Agarwals case (supra) was also in relation to the suit for enforcement of guarantee and not the proceedings of the nature initiated in the matter in hand under Section 31 of the said Act. However, it was also specifically ruled that merely because an industrial company is protected, the guarantor does not get protected automatically.8.There is absolutely no substance in the appeal. In fact, the main contention of the appellants relates to non-maintainability of the proceedings in view of Section 22. As already seen above, the law on this point is well-settled and considering the same, while the arguments were being heard, on three occasions the learned Advocate appearing for the appellants was asked as to whether the appellants would like to withdraw the appeal. On all the three occasions, the learned Advocate chose to insist to argue and invite judgment in the matter. Insistence for judgment on the point which is already well-settled by the decision of the Apex Court is nothing but waste of the time of the Court. The learned Advocate was not able to point out any point as such, nor could distinguish the above referred decisions with reference to the facts of the case in hand.
### Response:
0
### Explanation:
In this regard, the Division Bench of this Court in Dewal Singhals case (supra) had clearly ruled, after taking into consideration the earlier decisions of this Court as well as of the Apex Court, that only "suit" against the guarantor of a loan granted to the industrial company which has been declared as sick under the SICA is barred under Section 22 of the SICA and no other proceedings. In fact, with the said decision, the law ison this aspect and we do not find any decision, either of this Court or the Apex Court, contrary to the law laid down in that regard in Dewal Singhals case. The decisions sought to be relied upon by the learned Advocate for the appellants nowhere assists the appellants in the matter in hand. The decision in Maharashtra Tubes case (supra) was prior to the amendment which was introduced to Section 22 of Act 12 of 1994. The decision was delivered onThe amended provision of Section 22 clearly specifies that no "suit" for recovery of money or for the enforcement of any security against the industrial company or of any guarantee in respect of any loans or advance granted to the industrial company shall lie. It does not prohibit any proceeding other than a suit in that regard and the law in that regard has been clearly laid down by the Division Bench of this Court in Dewal Singhals case. The decision in Maharashtra Tubes case, therefore, is of no help to the appellants.5.As far as the decision in Madalsa Internationals case (supra) is concerned, it was in relation to execution proceedings and the Division Bench therein has held that considering the provisions of law, the Court is of the clear opinion that the word "suit" in the amended portion of Section 22 cannot include in its ambit execution or execution proceedings. The decision, rather than assisting the appellants, clearly justifies the order passed by the learned singleis absolutely no substance in the appeal. In fact, the main contention of the appellants relates toof the proceedings in view of Section 22. As already seen above, the law on this point isand considering the same, while the arguments were being heard, on three occasions the learned Advocate appearing for the appellants was asked as to whether the appellants would like to withdraw the appeal. On all the three occasions, the learned Advocate chose to insist to argue and invite judgment in the matter. Insistence for judgment on the point which is alreadyby the decision of the Apex Court is nothing but waste of the time of the Court. The learned Advocate was not able to point out any point as such, nor could distinguish the above referred decisions with reference to the facts of the case in hand.
|
Amrendra Kumar Paul Vs. Maya Paul | just ground for his wifes refusal to live with him." 13. A Division Bench of this Court in the case of Shantha @ Ushadevi & Anr. v. B.G. Shivananjappa (2005) 4 SCC 468 , held : "7. It is true that the amount of maintenance became due by virtue of the Magistrates order passed on 20-1-1993 and in order to seek recovery of the amount due by issuance of warrant, application shall be made within a period of one year from the date the amount became due. In the present case, the application, namely, Crl.Misc.Petition No.47 of 1993 was filed well within one year. As no amount was paid even after the disposal of the matter by the High Court, the appellant filed IA No.1 in Crl.Misc.Petition No.47 of 1993 wherein the arrears due up to that date were calculated and sought recovery of that amount under Section 125(3). Thus, IA No.1 was filed even when Crl.Misc.Petition No.47 of 1993 was pending and no action to issue warrant was taken in that proceeding. Crl.Misc.Petition No.47 of 1993 which was filed within one year from the date the amount became due was kept alive and it was pending throughout. The purpose of filing IA on 16-6-1998 was only to mention the amount due up to date. The fact that the additional amount was specified in the IA does not mean that the application for execution of the order by issuing a warrant under Section 125(3) was a fresh application made for the first time. As already noticed, the main petition filed in the year 1993 was pending and kept alive and the filing of subsequent IA in 1998 was only to specify the exact amount which accrued due up to that date. Such application is only supplementary or incidental to the petition already filed in 1993 admittedly within the period of limitation. The fact that only a sum of Rs.5365 representing the arrears of eight months was mentioned therein does not curtail the scope of criminal miscellaneous petition filed in 1993 more so when no action was taken thereon and it remained pending." 14. A period of limitation is provided for in terms of the aforementioned provision. However, in a case of this nature, Section 15 of the Limitation Act would apply which reads as under : "15. Exclusion of time in certain other cases.-(1) In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.(2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.Explanation.-In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted.(3) In computing the period of limitation for any suit or application for execution of a decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded.(4) In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded.(5) In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded." 15. In fact, the order of stay had been granted by the revisional court as also by the High Court in the aforementioned proceedings. The limitation for filing application for execution would be computed upon excluding the period during which the order of stay was operating.16. We may place on record that the notice was issued only on the question s to whether the amount of maintenance could have been directed to be recovered despite the fact that the children had attained majority. 17. It appears that the said question was formulated on the basis of the submission made at the Bar. We have dealt with all the questions raised before us. In view of the findings arrived at by us, such a question does not arise for consideration.18. It is clear from the order of the learned Magistrate that no order of maintenance was passed in favour of the children after they attained majority. In that view of the matter, the question of recovery of any amount from the petitioners towards the maintenance granted to the children after they had attained majority does not arise. In this case the direction has been issued to recover the amount of maintenance only for the period prior to the sons attaining majority and the daughters getting married and hence no inference with the impugned judgment, in this behalf, is called for.19. In any view of the matter, it, in our opinion, is not a fit case wherein we should exercise our discretionary jurisdiction even it be assumed that the Execution case was filed only by the respondent. | 0[ds]11. An application for grant of maintenance, therefore, is maintainable, so far as the children are concerned, till they had not attained majority. As a cause of action for grant of maintenance would arise only in the event a person having sufficient means, neglects or refuses to maintain his legitimate or illegitimate minor child unable to maintain itself. Once, therefore, the children attained majority, the said provision would cease to apply to their cases.In fact, the order of stay had been granted by the revisional court as also by the High Court in the aforementioned proceedings. The limitation for filing application for execution would be computed upon excluding the period during which the order of stay was operating.16. We may place on record that the notice was issued only on the question s towhether the amount of maintenance could have been directed to be recovered despite the fact that the children had attained majority.It appears that the said question was formulated on the basis of the submission made at the Bar. We have dealt with all the questions raised before us. In view of the findings arrived at by us, such a question does not arise for consideration.18. It is clear from the order of the learned Magistrate that no order of maintenance was passed in favour of the children after they attained majority. In that view of the matter, the question of recovery of any amount from the petitioners towards the maintenance granted to the children after they had attained majority does not arise. In this case the direction has been issued to recover the amount of maintenance only for the period prior to the sons attaining majority and the daughters getting married and hence no inference with the impugned judgment, in this behalf, is called for.19. In any view of the matter, it, in our opinion, is not a fit case wherein we should exercise our discretionary jurisdiction even it be assumed that the Execution case was filed only by the respondent. | 0 | 3,309 | 366 | ### 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:
just ground for his wifes refusal to live with him." 13. A Division Bench of this Court in the case of Shantha @ Ushadevi & Anr. v. B.G. Shivananjappa (2005) 4 SCC 468 , held : "7. It is true that the amount of maintenance became due by virtue of the Magistrates order passed on 20-1-1993 and in order to seek recovery of the amount due by issuance of warrant, application shall be made within a period of one year from the date the amount became due. In the present case, the application, namely, Crl.Misc.Petition No.47 of 1993 was filed well within one year. As no amount was paid even after the disposal of the matter by the High Court, the appellant filed IA No.1 in Crl.Misc.Petition No.47 of 1993 wherein the arrears due up to that date were calculated and sought recovery of that amount under Section 125(3). Thus, IA No.1 was filed even when Crl.Misc.Petition No.47 of 1993 was pending and no action to issue warrant was taken in that proceeding. Crl.Misc.Petition No.47 of 1993 which was filed within one year from the date the amount became due was kept alive and it was pending throughout. The purpose of filing IA on 16-6-1998 was only to mention the amount due up to date. The fact that the additional amount was specified in the IA does not mean that the application for execution of the order by issuing a warrant under Section 125(3) was a fresh application made for the first time. As already noticed, the main petition filed in the year 1993 was pending and kept alive and the filing of subsequent IA in 1998 was only to specify the exact amount which accrued due up to that date. Such application is only supplementary or incidental to the petition already filed in 1993 admittedly within the period of limitation. The fact that only a sum of Rs.5365 representing the arrears of eight months was mentioned therein does not curtail the scope of criminal miscellaneous petition filed in 1993 more so when no action was taken thereon and it remained pending." 14. A period of limitation is provided for in terms of the aforementioned provision. However, in a case of this nature, Section 15 of the Limitation Act would apply which reads as under : "15. Exclusion of time in certain other cases.-(1) In computing the period of limitation of any suit or application for the execution of a decree, the institution or execution of which has been stayed by injunction or order, the time of the continuance of the injunction or order, the day on which it was issued or made, and the day on which it was withdrawn, shall be excluded.(2) In computing the period of limitation for any suit of which notice has been given, or for which the previous consent or sanction of the Government or any other authority is required, in accordance with the requirements of any law for the time being in force, the period of such notice or, as the case may be, the time required for obtaining such consent or sanction shall be excluded.Explanation.-In excluding the time required for obtaining the consent or sanction of the Government or any other authority, the date on which the application was made for obtaining the consent or sanction and the date of receipt of the order of the Government or other authority shall both be counted.(3) In computing the period of limitation for any suit or application for execution of a decree by any receiver or interim receiver appointed in proceedings for the adjudication of a person as an insolvent or by any liquidator or provisional liquidator appointed in proceedings for the winding up of a company, the period beginning with the date of institution of such proceeding and ending with the expiry of three months from the date of appointment of such receiver or liquidator, as the case may be, shall be excluded.(4) In computing the period of limitation for a suit for possession by a purchaser at a sale in execution of a decree, the time during which a proceeding to set aside the sale has been prosecuted shall be excluded.(5) In computing the period of limitation for any suit the time during which the defendant has been absent from India and from the territories outside India under the administration of the Central Government, shall be excluded." 15. In fact, the order of stay had been granted by the revisional court as also by the High Court in the aforementioned proceedings. The limitation for filing application for execution would be computed upon excluding the period during which the order of stay was operating.16. We may place on record that the notice was issued only on the question s to whether the amount of maintenance could have been directed to be recovered despite the fact that the children had attained majority. 17. It appears that the said question was formulated on the basis of the submission made at the Bar. We have dealt with all the questions raised before us. In view of the findings arrived at by us, such a question does not arise for consideration.18. It is clear from the order of the learned Magistrate that no order of maintenance was passed in favour of the children after they attained majority. In that view of the matter, the question of recovery of any amount from the petitioners towards the maintenance granted to the children after they had attained majority does not arise. In this case the direction has been issued to recover the amount of maintenance only for the period prior to the sons attaining majority and the daughters getting married and hence no inference with the impugned judgment, in this behalf, is called for.19. In any view of the matter, it, in our opinion, is not a fit case wherein we should exercise our discretionary jurisdiction even it be assumed that the Execution case was filed only by the respondent.
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11. An application for grant of maintenance, therefore, is maintainable, so far as the children are concerned, till they had not attained majority. As a cause of action for grant of maintenance would arise only in the event a person having sufficient means, neglects or refuses to maintain his legitimate or illegitimate minor child unable to maintain itself. Once, therefore, the children attained majority, the said provision would cease to apply to their cases.In fact, the order of stay had been granted by the revisional court as also by the High Court in the aforementioned proceedings. The limitation for filing application for execution would be computed upon excluding the period during which the order of stay was operating.16. We may place on record that the notice was issued only on the question s towhether the amount of maintenance could have been directed to be recovered despite the fact that the children had attained majority.It appears that the said question was formulated on the basis of the submission made at the Bar. We have dealt with all the questions raised before us. In view of the findings arrived at by us, such a question does not arise for consideration.18. It is clear from the order of the learned Magistrate that no order of maintenance was passed in favour of the children after they attained majority. In that view of the matter, the question of recovery of any amount from the petitioners towards the maintenance granted to the children after they had attained majority does not arise. In this case the direction has been issued to recover the amount of maintenance only for the period prior to the sons attaining majority and the daughters getting married and hence no inference with the impugned judgment, in this behalf, is called for.19. In any view of the matter, it, in our opinion, is not a fit case wherein we should exercise our discretionary jurisdiction even it be assumed that the Execution case was filed only by the respondent.
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Pipraich Sugar Mills Limited Vs. Pipraich Sugar Mills Mazdoor Union | the machinery dismantled and delivered to the purchaser peacefully. Did the workman ever agree to it? As late as 5th March 1951 Kashinath Pandey wrote to the Government that if the Mills were to be shifted from Pipraich, he would go on hunger strike. Even after the Government had informed him that the sale could not be interfered with, the workman did not co-operate with the management in the dismantling of the machinery with the result that the appellant had to give up the contract with reference thereto and to lose Rs. 2 lakhs profits. To crown all, the workmen having successfully prevented the appellant from getting the contract for dismantling, themselves entered into it directly with the purchaser and undoubtedly intercepted a part, if not the whole, of the profits which the appellant would have earned. It is impossible to hold on these facts that there was a concluded agreement between the parties binding the appellant to give the workmen a share of the profits of the sale transaction.14. It was next contended by Mr. Umrigar that even if there was no concluded agreement by the management to pay the workmen a share of profits on the sale of transaction, it would have been open to the Tribunal to have awarded compensation for the termination of their services treating it as retrenchment, and that the award of compensation of Rs. 45,000 which was what the management itself has suggested, might be sustained on that footing. This contention assumes that the termination of the services of workmen on the closure of business is retrenchment. But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as the retrenchment. It is however contended by Mr. Umrigar that the definition of retrenchment in S. 2 (00) of the Industrial Disputes Act, 1947 (14 of 1947) is wide enough to include discharge consequent on the closure of business, and that under S. 25-F, compensation could be awarded therefore. Our attention has been invited on behalf of the appellant to the decision in J. K. Hosiery Factory v. Labour Appellate Tribunal(S) A I R 1956 All 498 (D), where it was held that retrenchment as defined in S. 2 (00) does not comprehend discharge on the closure of business, but Mr. Umrigar contends that it is erroneous. We do not consider it necessary to decide this question as the definition of "retrenchment" in S. 2 (00) of act, 14 of 1947 and S. 25-F therein were inserted by the Industrial Disputes (Amendment) Act, 1953 (43 of l953) and we have held in Burn and Co. Ltd., Calcutta v. Their Workman(C) (supra) that this Act has no retrospective operation. The rights of the parties to the present appeal must, therefore, be decided in accordance with the law as it stood on 21-3-1951 when the workmen were discharged.15. It was next contended, on the strength of the decisions in Employees of India Reconstruction Corporation Ltd. Calcutta, v. India Reconstruction Corporation Ltd. Calcutta, 1953 Lab A C 563 (Cal) (E) and Benett Coleman and Co. Ltd. v. Their Employees,1954 Lab A C 24 (Cal) (F) that even prior to the enactment of the Act 43 of 1953, the Tribunals had acted on the view that retrenchment included discharge on closure of business, and had awarded compensation on that footing and that the award of the Tribunal in the present case could be supported in that view and should not be disturbed. Inp73 Employees of India Reconstruction Corporation Ltd., Calcutta v. India Reconstruction Corporation Ltd., Calcutta(E) (supra) the Tribunal observed at p. 576 as follows:"Ordinarily retrenchment means discharge from service of only the surplus part of the labour force but in the case of closure the whole labour force is dispensed with. In substance the difference between closure and normal retrenchment is one of degree only. As in the case of retrenchment so in the case of closure the workmen are not responsible for closing their jobs. In both the cases what is called compensation by way of retrenchment relief should be admissible".We are unable to agree with these observations. Though there is discharge of workman both when there is retrenchment and closure to business, the compensation is to be awarded under the law, not for discharge as such but for discharge on retrenchment, and if, as is conceded retrenchment means in ordinary parlance, discharge of the surplus, it cannot include discharge on closure of business. Moreover, there was no question of closing of business in Employees of India Reconstruction Corporation Ltd. Calcutta v. India Reconstruction Corporation Ltd. Calcutta(E) (supra) as what happened there was that one of the units of the company, that at Calcutta, was closed and that would be a case of retrenchment, and the observations quoted above were purely obiter. They were, however, quoted and followed without discussion by the Appellate Tribunal inBenett Coleman and Co. Ltd. v. Their Employees(F) (supra) which further remarked at p. 27:"Thus, whether the closure was justified or not, the workman who have lost their jobs would in any event get compensation. If it was not bona fide or not justified, it may be that the measure of compensation would be larger than if it was otherwise".16. For the reasons given above, we cannot assent to these observations. It should be mentioned that in Benett Coleman and Co. Ltd. v. Their Employees(F) (supra) there was no closure of business but winding up of the Calcutta unit by a news paper publishing company which had its head quarters at Bombay. We must accordingly overrule this contention also. We should add that the Tribunal was of the opinion that, apart from agreement, the workman should not, in view of their conduct, be awarded compensation, and we entirely agree with it. | 1[ds]7. It cannot be doubted that the entire scheme of the Act assumes that there is in existence an industry and then proceeds on to provide for various steps being taken, when a dispute arises in that industry. Thus, the provisions of the Act relating to lock out, strike, lay off, retrenchment, conciliation and adjudication proceedings, the period during which the awards are to be in force have meaning only if they refer to an industry which is running and not one which isview therefore expressed inI ndian Metal and Metallurgical Corporation v. Industrial Tribunal Madras(A) (supra) and K. M. Padmanabha Ayyar v. State of Madras(B) (supra)that the industrial dispute to which the provisions of the Act apply is only one which arises out of an existing industry is clearly correct. Therefore, where the business has been closed and it is either admitted or found that the closure is real and bona fide any dispute arising with reference thereto would as held inK. M. Padmanabha Ayyar v. State of Madras(B) (supra), fall outside the purview of the Industrial Dispute Act. And that will a fortiori be so, if a dispute arises - if one such can be conceived - after the closure of the business between the quondam employer andif this contention is well-founded, the dispute relates to a claim which arose while the industry was in existence and between persons who stood in the relationship of employer and employees, and that would clearly be an industrial dispute as defined in thedo not find anything in the language of S. 3 of the Act to warrant the imposition of this additional limitation on the power of the State to make a reference. That section only requires, apart from other conditions, with which we are not concerned, that there should be an industrial dispute before there can be a reference, and we have held that it would be an industrial dispute if it arises out of an existing industry. If that condition is satisfied, the competence of the State for taking action under that section is complete, and the fact that the industry has since been closed can have no effect on it.Any other construction would, in our opinion, result in serious anomalies and gravethink that on a true construction of S. 3, the power of the State to make a reference under that section must be determined with reference not to the date on which it is made but to the date on which the right which is the subject-matter of the dispute arises, and that the machinery provided under the Act would be available for working out the rights which had accrued prior to the dissolution of thethis argument proceeds on a misapprehension of the correct position on the facts. The true scope of the promise contained in the letter dated 3-1-1951 is that the workmen acquired there under a right in praesenti to 25 percent of the profits but that the amount became payable only on 30-4-1951, the reason obviously being that it could be precisely p73 determined only after the transaction was completed. In this view, as the claim for share of profits arose on 3-1-1951 and 10-1-1951 when the industry was working, the reference dated 6-11-1951 would be valid, notwithstanding that the business was closed onwe, should not interfere with the finding of the Industrial Tribunal that there was a concluded and enforceable agreement. But our difficulty is that the Tribunal has spoken in two voices, and has given inconsistent and conflicting findings, and it has consequently become necessary for us to determine which of its findings should be accepted as supported bywould not be acceptance as required by the appellant, and that alone would be sufficient to reject the contention of the respondent. But this contention must fail even on the merits. In its letter dated 10-1-1951, the respondent while stating that the strike was not taking place on the 12th, made it clear that this was pending the final decision of the Union. That clearly is not an acceptance of the offer. The matter does not rest there. The object of the strike was, it should be remembered, not anything directly connected with the terms of the employment but something collateral to it. It was to prevent the mills from being removed from Pipraich to Madras. When the management offered to part with 25 percent of the sale transaction, its object was clearly to disarm the opposition of the workmen and to get the machinery dismantled and delivered to the purchaser peacefully. Did the workman ever agree to it? As late as 5th March 1951 Kashinath Pandey wrote to the Government that if the Mills were to be shifted from Pipraich, he would go on hunger strike. Even after the Government had informed him that the sale could not be interfered with, the workman did not co-operate with the management in the dismantling of the machinery with the result that the appellant had to give up the contract with reference thereto and to lose Rs. 2 lakhs profits. To crown all, the workmen having successfully prevented the appellant from getting the contract for dismantling, themselves entered into it directly with the purchaser and undoubtedly intercepted a part, if not the whole, of the profits which the appellant would have earned. It is impossible to hold on these facts that there was a concluded agreement between the parties binding the appellant to give the workmen a share of the profits of the salecontention assumes that the termination of the services of workmen on the closure of business is retrenchment. But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as thedo not consider it necessary to decide this question as the definition of "retrenchment" in S. 2 (00) of act, 14 of 1947 and S. 25-F therein were inserted by the Industrial Disputes (Amendment) Act, 1953 (43 of l953) and we have held in Burn and Co. Ltd., Calcutta v. Their Workman(C) (supra) that this Act has no retrospective operation. The rights of the parties to the present appeal must, therefore, be decided in accordance with the law as it stood on 21-3-1951 when the workmen wereare unable to agree with these observations. Though there is discharge of workman both when there is retrenchment and closure to business, the compensation is to be awarded under the law, not for discharge as such but for discharge on retrenchment, and if, as is conceded retrenchment means in ordinary parlance, discharge of the surplus, it cannot include discharge on closure of business. Moreover, there was no question of closing of business in Employees of India Reconstruction Corporation Ltd. Calcutta v. India Reconstruction Corporation Ltd. Calcutta(E) (supra) as what happened there was that one of the units of the company, that at Calcutta, was closed and that would be a case of retrenchment, and the observations quoted above were purely obiter.For the reasons given above, we cannot assent to these observations. It should be mentioned that in Benett Coleman and Co. Ltd. v. Their Employees(F) (supra) there was no closure of business but winding up of the Calcutta unit by a news paper publishing company which had its head quarters at Bombay. We must accordingly overrule this contention also. We should add that the Tribunal was of the opinion that, apart from agreement, the workman should not, in view of their conduct, be awarded compensation, and we entirely agree with it. | 1 | 5,658 | 1,424 | ### 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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the machinery dismantled and delivered to the purchaser peacefully. Did the workman ever agree to it? As late as 5th March 1951 Kashinath Pandey wrote to the Government that if the Mills were to be shifted from Pipraich, he would go on hunger strike. Even after the Government had informed him that the sale could not be interfered with, the workman did not co-operate with the management in the dismantling of the machinery with the result that the appellant had to give up the contract with reference thereto and to lose Rs. 2 lakhs profits. To crown all, the workmen having successfully prevented the appellant from getting the contract for dismantling, themselves entered into it directly with the purchaser and undoubtedly intercepted a part, if not the whole, of the profits which the appellant would have earned. It is impossible to hold on these facts that there was a concluded agreement between the parties binding the appellant to give the workmen a share of the profits of the sale transaction.14. It was next contended by Mr. Umrigar that even if there was no concluded agreement by the management to pay the workmen a share of profits on the sale of transaction, it would have been open to the Tribunal to have awarded compensation for the termination of their services treating it as retrenchment, and that the award of compensation of Rs. 45,000 which was what the management itself has suggested, might be sustained on that footing. This contention assumes that the termination of the services of workmen on the closure of business is retrenchment. But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as the retrenchment. It is however contended by Mr. Umrigar that the definition of retrenchment in S. 2 (00) of the Industrial Disputes Act, 1947 (14 of 1947) is wide enough to include discharge consequent on the closure of business, and that under S. 25-F, compensation could be awarded therefore. Our attention has been invited on behalf of the appellant to the decision in J. K. Hosiery Factory v. Labour Appellate Tribunal(S) A I R 1956 All 498 (D), where it was held that retrenchment as defined in S. 2 (00) does not comprehend discharge on the closure of business, but Mr. Umrigar contends that it is erroneous. We do not consider it necessary to decide this question as the definition of "retrenchment" in S. 2 (00) of act, 14 of 1947 and S. 25-F therein were inserted by the Industrial Disputes (Amendment) Act, 1953 (43 of l953) and we have held in Burn and Co. Ltd., Calcutta v. Their Workman(C) (supra) that this Act has no retrospective operation. The rights of the parties to the present appeal must, therefore, be decided in accordance with the law as it stood on 21-3-1951 when the workmen were discharged.15. It was next contended, on the strength of the decisions in Employees of India Reconstruction Corporation Ltd. Calcutta, v. India Reconstruction Corporation Ltd. Calcutta, 1953 Lab A C 563 (Cal) (E) and Benett Coleman and Co. Ltd. v. Their Employees,1954 Lab A C 24 (Cal) (F) that even prior to the enactment of the Act 43 of 1953, the Tribunals had acted on the view that retrenchment included discharge on closure of business, and had awarded compensation on that footing and that the award of the Tribunal in the present case could be supported in that view and should not be disturbed. Inp73 Employees of India Reconstruction Corporation Ltd., Calcutta v. India Reconstruction Corporation Ltd., Calcutta(E) (supra) the Tribunal observed at p. 576 as follows:"Ordinarily retrenchment means discharge from service of only the surplus part of the labour force but in the case of closure the whole labour force is dispensed with. In substance the difference between closure and normal retrenchment is one of degree only. As in the case of retrenchment so in the case of closure the workmen are not responsible for closing their jobs. In both the cases what is called compensation by way of retrenchment relief should be admissible".We are unable to agree with these observations. Though there is discharge of workman both when there is retrenchment and closure to business, the compensation is to be awarded under the law, not for discharge as such but for discharge on retrenchment, and if, as is conceded retrenchment means in ordinary parlance, discharge of the surplus, it cannot include discharge on closure of business. Moreover, there was no question of closing of business in Employees of India Reconstruction Corporation Ltd. Calcutta v. India Reconstruction Corporation Ltd. Calcutta(E) (supra) as what happened there was that one of the units of the company, that at Calcutta, was closed and that would be a case of retrenchment, and the observations quoted above were purely obiter. They were, however, quoted and followed without discussion by the Appellate Tribunal inBenett Coleman and Co. Ltd. v. Their Employees(F) (supra) which further remarked at p. 27:"Thus, whether the closure was justified or not, the workman who have lost their jobs would in any event get compensation. If it was not bona fide or not justified, it may be that the measure of compensation would be larger than if it was otherwise".16. For the reasons given above, we cannot assent to these observations. It should be mentioned that in Benett Coleman and Co. Ltd. v. Their Employees(F) (supra) there was no closure of business but winding up of the Calcutta unit by a news paper publishing company which had its head quarters at Bombay. We must accordingly overrule this contention also. We should add that the Tribunal was of the opinion that, apart from agreement, the workman should not, in view of their conduct, be awarded compensation, and we entirely agree with it.
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only requires, apart from other conditions, with which we are not concerned, that there should be an industrial dispute before there can be a reference, and we have held that it would be an industrial dispute if it arises out of an existing industry. If that condition is satisfied, the competence of the State for taking action under that section is complete, and the fact that the industry has since been closed can have no effect on it.Any other construction would, in our opinion, result in serious anomalies and gravethink that on a true construction of S. 3, the power of the State to make a reference under that section must be determined with reference not to the date on which it is made but to the date on which the right which is the subject-matter of the dispute arises, and that the machinery provided under the Act would be available for working out the rights which had accrued prior to the dissolution of thethis argument proceeds on a misapprehension of the correct position on the facts. The true scope of the promise contained in the letter dated 3-1-1951 is that the workmen acquired there under a right in praesenti to 25 percent of the profits but that the amount became payable only on 30-4-1951, the reason obviously being that it could be precisely p73 determined only after the transaction was completed. In this view, as the claim for share of profits arose on 3-1-1951 and 10-1-1951 when the industry was working, the reference dated 6-11-1951 would be valid, notwithstanding that the business was closed onwe, should not interfere with the finding of the Industrial Tribunal that there was a concluded and enforceable agreement. But our difficulty is that the Tribunal has spoken in two voices, and has given inconsistent and conflicting findings, and it has consequently become necessary for us to determine which of its findings should be accepted as supported bywould not be acceptance as required by the appellant, and that alone would be sufficient to reject the contention of the respondent. But this contention must fail even on the merits. In its letter dated 10-1-1951, the respondent while stating that the strike was not taking place on the 12th, made it clear that this was pending the final decision of the Union. That clearly is not an acceptance of the offer. The matter does not rest there. The object of the strike was, it should be remembered, not anything directly connected with the terms of the employment but something collateral to it. It was to prevent the mills from being removed from Pipraich to Madras. When the management offered to part with 25 percent of the sale transaction, its object was clearly to disarm the opposition of the workmen and to get the machinery dismantled and delivered to the purchaser peacefully. Did the workman ever agree to it? As late as 5th March 1951 Kashinath Pandey wrote to the Government that if the Mills were to be shifted from Pipraich, he would go on hunger strike. Even after the Government had informed him that the sale could not be interfered with, the workman did not co-operate with the management in the dismantling of the machinery with the result that the appellant had to give up the contract with reference thereto and to lose Rs. 2 lakhs profits. To crown all, the workmen having successfully prevented the appellant from getting the contract for dismantling, themselves entered into it directly with the purchaser and undoubtedly intercepted a part, if not the whole, of the profits which the appellant would have earned. It is impossible to hold on these facts that there was a concluded agreement between the parties binding the appellant to give the workmen a share of the profits of the salecontention assumes that the termination of the services of workmen on the closure of business is retrenchment. But retrenchment connotes in its ordinary acceptation that the business itself is being continued but that a portion of the staff or the labour force is discharged as surplusage and the termination of services of all the workmen as a result of the closure of the business cannot therefore be properly described as thedo not consider it necessary to decide this question as the definition of "retrenchment" in S. 2 (00) of act, 14 of 1947 and S. 25-F therein were inserted by the Industrial Disputes (Amendment) Act, 1953 (43 of l953) and we have held in Burn and Co. Ltd., Calcutta v. Their Workman(C) (supra) that this Act has no retrospective operation. The rights of the parties to the present appeal must, therefore, be decided in accordance with the law as it stood on 21-3-1951 when the workmen wereare unable to agree with these observations. Though there is discharge of workman both when there is retrenchment and closure to business, the compensation is to be awarded under the law, not for discharge as such but for discharge on retrenchment, and if, as is conceded retrenchment means in ordinary parlance, discharge of the surplus, it cannot include discharge on closure of business. Moreover, there was no question of closing of business in Employees of India Reconstruction Corporation Ltd. Calcutta v. India Reconstruction Corporation Ltd. Calcutta(E) (supra) as what happened there was that one of the units of the company, that at Calcutta, was closed and that would be a case of retrenchment, and the observations quoted above were purely obiter.For the reasons given above, we cannot assent to these observations. It should be mentioned that in Benett Coleman and Co. Ltd. v. Their Employees(F) (supra) there was no closure of business but winding up of the Calcutta unit by a news paper publishing company which had its head quarters at Bombay. We must accordingly overrule this contention also. We should add that the Tribunal was of the opinion that, apart from agreement, the workman should not, in view of their conduct, be awarded compensation, and we entirely agree with it.
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M/s. Aditya Mindrals Pvt. Ltd Vs. Commissioner of Income Tax, Andhra Pradesh | Bharucha, J. 1. These appeals have been referred to a Constitution Bench to resolve the apparent conflict between the judgments of two Benches of this Court, of three learned Judges each, in Pingle Industries Ltd. v. Commissioner of Income-tax, Hyderabad, 1960(40) I.T.R. 67 and Gotan Lime Syndicate v. Commissioner of Income tax, Rajasthan & Delhi, 1966(59) I.T.R. 718. The common question to be considered reads thus : "Whether on the facts and in the circumstances of the case, the sum of Rs. 10,752/- paid by the assessee in the accounting year was not expenditure allowable as a deduction in computing the business profit of the assessee-company ?" 2. The appellant-assessee obtained a lease dated 8th march, 1972 from Aditya Minerals Private Limited. It was a term of the lease deed that "the Lessor will grant lease of the land more particularly described in Schedule `A attached to this lease deed and forming part of the same for a period of Fifteen years from first December, One thousand nine hundred and seventy one at a monthly rent of Rs. 35/- (Rupees Thirty Five) only per acre." Clause 2 of the lease deed stated "that the Lessee shall deposit with the Lessor by way of the guarantee for due performance of this lease deed for fifteen years, the amount equal to the rent of lease of land for the full period of lease which will be adjustable against rent of every month. This entire guarantee deposit shall not cary any interest payable to the Lessee by the Lessor." The lease deed granted to the assessee the liberty "to use the land for excavation purposes and subsidiary purposes".3. for the assessment years in question, the assessee claimed the rent amounts worked out at Rs. 10,752/- per annum as revenue expenditure. The claim of the assessee in this behalf was turned down by the authorities, the Income Tax Appellate Tribunal and, finally, by the High Court of Andhra Pradesh, against whose judgment the assessee is in appeal. 4. We find that there is a material difference in the facts of the case of Pingle Industries Ltd. and the facts of the case of Gotan Lime Syndicate. As the judgment in Gotan Lime Syndicate, relief upon by the assessee, clearly shows, in that case "there is no payment once for all; it is an yearly payment of dead-rent and royalty. it sitrue half if a capital sum is arrived at and payment is made every year by chalking out the capital amount in varouos instalments, the payment does not lose its character as a capital payment if the sum determined was capital in nature. But it is an important fact in this case that it is a case of an annual payment of royalty or dead-rent". The judgment adds that the case of Pingle Industries Ltd. was "distinguishable because, on the facts, it was a lump sum payment in instalments for acquiring an enduring advantage; it has relation to the raw material to be obtained." The Court thus accepted the argument on behalf of Gotan Lime Syndicate that what it got was a right to get lime for manufacturing and the payment had a direct relation to the amount of lime that was removed. 5. In the case before us, as indicated by the lease deed, what was to be paid by the asessee was rent for the land that was leased. It was payable at the rate of Rs. 35/- per acre per month. the assessee was required to pay in advance the rent calculated at this rate for the entire period of the lease, i.e., fifteen years, in the form of a "deposit". The deposit was "by way of the guarantee for due performance of this lease deed for fifteen years", that is, towards fifteen years rent. It was adjustable against the rent of each month and it carried no interest. | 0[ds]5. In the case before us, as indicated by the lease deed, what was to be paid by the asessee was rent for the land that was leased. It was payable at the rate of Rs. 35/per acre per month. the assessee was required to pay in advance the rent calculated at this rate for the entire period of the lease, i.e., fifteen years, in the form of a "deposit". The deposit was "by way of the guarantee for due performance of this lease deed for fifteen years", that is, towards fifteen years rent. It was adjustable against the rent of each month and it carried no interest. | 0 | 734 | 130 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
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Bharucha, J. 1. These appeals have been referred to a Constitution Bench to resolve the apparent conflict between the judgments of two Benches of this Court, of three learned Judges each, in Pingle Industries Ltd. v. Commissioner of Income-tax, Hyderabad, 1960(40) I.T.R. 67 and Gotan Lime Syndicate v. Commissioner of Income tax, Rajasthan & Delhi, 1966(59) I.T.R. 718. The common question to be considered reads thus : "Whether on the facts and in the circumstances of the case, the sum of Rs. 10,752/- paid by the assessee in the accounting year was not expenditure allowable as a deduction in computing the business profit of the assessee-company ?" 2. The appellant-assessee obtained a lease dated 8th march, 1972 from Aditya Minerals Private Limited. It was a term of the lease deed that "the Lessor will grant lease of the land more particularly described in Schedule `A attached to this lease deed and forming part of the same for a period of Fifteen years from first December, One thousand nine hundred and seventy one at a monthly rent of Rs. 35/- (Rupees Thirty Five) only per acre." Clause 2 of the lease deed stated "that the Lessee shall deposit with the Lessor by way of the guarantee for due performance of this lease deed for fifteen years, the amount equal to the rent of lease of land for the full period of lease which will be adjustable against rent of every month. This entire guarantee deposit shall not cary any interest payable to the Lessee by the Lessor." The lease deed granted to the assessee the liberty "to use the land for excavation purposes and subsidiary purposes".3. for the assessment years in question, the assessee claimed the rent amounts worked out at Rs. 10,752/- per annum as revenue expenditure. The claim of the assessee in this behalf was turned down by the authorities, the Income Tax Appellate Tribunal and, finally, by the High Court of Andhra Pradesh, against whose judgment the assessee is in appeal. 4. We find that there is a material difference in the facts of the case of Pingle Industries Ltd. and the facts of the case of Gotan Lime Syndicate. As the judgment in Gotan Lime Syndicate, relief upon by the assessee, clearly shows, in that case "there is no payment once for all; it is an yearly payment of dead-rent and royalty. it sitrue half if a capital sum is arrived at and payment is made every year by chalking out the capital amount in varouos instalments, the payment does not lose its character as a capital payment if the sum determined was capital in nature. But it is an important fact in this case that it is a case of an annual payment of royalty or dead-rent". The judgment adds that the case of Pingle Industries Ltd. was "distinguishable because, on the facts, it was a lump sum payment in instalments for acquiring an enduring advantage; it has relation to the raw material to be obtained." The Court thus accepted the argument on behalf of Gotan Lime Syndicate that what it got was a right to get lime for manufacturing and the payment had a direct relation to the amount of lime that was removed. 5. In the case before us, as indicated by the lease deed, what was to be paid by the asessee was rent for the land that was leased. It was payable at the rate of Rs. 35/- per acre per month. the assessee was required to pay in advance the rent calculated at this rate for the entire period of the lease, i.e., fifteen years, in the form of a "deposit". The deposit was "by way of the guarantee for due performance of this lease deed for fifteen years", that is, towards fifteen years rent. It was adjustable against the rent of each month and it carried no interest.
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5. In the case before us, as indicated by the lease deed, what was to be paid by the asessee was rent for the land that was leased. It was payable at the rate of Rs. 35/per acre per month. the assessee was required to pay in advance the rent calculated at this rate for the entire period of the lease, i.e., fifteen years, in the form of a "deposit". The deposit was "by way of the guarantee for due performance of this lease deed for fifteen years", that is, towards fifteen years rent. It was adjustable against the rent of each month and it carried no interest.
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Krishnakumar Mills Company Limited and Another Vs. State of Gujarat and Others | Vaidialingam, J. 1. The appellant challenged the acquisition of his lands bearing plot Nos. 116/1, 116/2, 117 and 119 for a public purpose of "establishing Industrial area by the Gujarat Industrial Development Corporation". The acquisition was made not only of the appellants lands but also of a fairly extensive area of lands belonging to others, for the purpose above mentioned. The Development Corporation has been constituted under the Gujarat Industrial Development Act, 1962 (Act 23 of 1962) for the purposes mentioned therein. 2. The appellant challenged the acquisition mainly on two grounds. According to the appellant the Gujarat Act 23 of 1962 was not valid and secondly the purpose of the acquisition cannot be considered to be for a public purpose. 3. These contentions were rejected by the High Court in the Order under attack. So far as the vires of Act is concerned, it is concluded against the appellant by the decision of this Court reported in Sri. Ramnatanu Co-operative Housing Society and Another v. State of Maharashtra. ((1970) 3 SCC 323 ) So far as the second contention is concerned that also is covered by the decision of this Court reported in Smt. Somavanti and Others v. The State of Punjab and Others, ((1963) 2 SCR 774 : AIR 1963 SC 151 ) which is against the appellant. Therefore, both the contentions taken before the High Court are no longer available to the appellant. 4. Mr. S. T. Desai, learned for the appellant, stated that his clients lands which were sought to be acquired are really necessary for the development of their own Textile Mills and therefore the acquisition, so far as those lands are concerned, will have to be cancelled. So far as this aspect is concerned the High Court has referred to the fact that the appellants lands form part of a compact block of land required by the Development Corporation for setting up an industrial area and as such those lands cannot be left out of acquisition. We are in agreement with this view of the High Court. 5. Though all these contentions have been held against the appellants, the High Court has recorded an assurance given by the Counsel for the Development Corporation, that effort would be made to see that, as far as possible, the appellants lands would be made available to them for their expansion if they are ready and willing to take them on the same terms and conditions on which, lands in the area would be given to other industrialists, provided that the appellants lands have not already been allotted to any other industrialist. We should think that there has been a very fair offer made on behalf of the Development Corporation. We dare say that the assurance recorded by the High Court will be acted upon by the concerned authorities. | 0[ds]4. Mr. S. T. Desai, learned for the appellant, stated that his clients lands which were sought to be acquired are really necessary for the development of their own Textile Mills and therefore the acquisition, so far as those lands are concerned, will have to be cancelled. So far as this aspect is concerned the High Court has referred to the fact that the appellants lands form part of a compact block of land required by the Development Corporation for setting up an industrial area and as such those lands cannot be left out of acquisition. We are in agreement with this view of the High Court5. Though all these contentions have been held against the appellants, the High Court has recorded an assurance given by the Counsel for the Development Corporation, that effort would be made to see that, as far as possible, the appellants lands would be made available to them for their expansion if they are ready and willing to take them on the same terms and conditions on which, lands in the area would be given to other industrialists, provided that the appellants lands have not already been allotted to any other industrialist. We should think that there has been a very fair offer made on behalf of the Development Corporation. We dare say that the assurance recorded by the High Court will be acted upon by the concerned authorities. | 0 | 525 | 256 | ### 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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Vaidialingam, J. 1. The appellant challenged the acquisition of his lands bearing plot Nos. 116/1, 116/2, 117 and 119 for a public purpose of "establishing Industrial area by the Gujarat Industrial Development Corporation". The acquisition was made not only of the appellants lands but also of a fairly extensive area of lands belonging to others, for the purpose above mentioned. The Development Corporation has been constituted under the Gujarat Industrial Development Act, 1962 (Act 23 of 1962) for the purposes mentioned therein. 2. The appellant challenged the acquisition mainly on two grounds. According to the appellant the Gujarat Act 23 of 1962 was not valid and secondly the purpose of the acquisition cannot be considered to be for a public purpose. 3. These contentions were rejected by the High Court in the Order under attack. So far as the vires of Act is concerned, it is concluded against the appellant by the decision of this Court reported in Sri. Ramnatanu Co-operative Housing Society and Another v. State of Maharashtra. ((1970) 3 SCC 323 ) So far as the second contention is concerned that also is covered by the decision of this Court reported in Smt. Somavanti and Others v. The State of Punjab and Others, ((1963) 2 SCR 774 : AIR 1963 SC 151 ) which is against the appellant. Therefore, both the contentions taken before the High Court are no longer available to the appellant. 4. Mr. S. T. Desai, learned for the appellant, stated that his clients lands which were sought to be acquired are really necessary for the development of their own Textile Mills and therefore the acquisition, so far as those lands are concerned, will have to be cancelled. So far as this aspect is concerned the High Court has referred to the fact that the appellants lands form part of a compact block of land required by the Development Corporation for setting up an industrial area and as such those lands cannot be left out of acquisition. We are in agreement with this view of the High Court. 5. Though all these contentions have been held against the appellants, the High Court has recorded an assurance given by the Counsel for the Development Corporation, that effort would be made to see that, as far as possible, the appellants lands would be made available to them for their expansion if they are ready and willing to take them on the same terms and conditions on which, lands in the area would be given to other industrialists, provided that the appellants lands have not already been allotted to any other industrialist. We should think that there has been a very fair offer made on behalf of the Development Corporation. We dare say that the assurance recorded by the High Court will be acted upon by the concerned authorities.
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4. Mr. S. T. Desai, learned for the appellant, stated that his clients lands which were sought to be acquired are really necessary for the development of their own Textile Mills and therefore the acquisition, so far as those lands are concerned, will have to be cancelled. So far as this aspect is concerned the High Court has referred to the fact that the appellants lands form part of a compact block of land required by the Development Corporation for setting up an industrial area and as such those lands cannot be left out of acquisition. We are in agreement with this view of the High Court5. Though all these contentions have been held against the appellants, the High Court has recorded an assurance given by the Counsel for the Development Corporation, that effort would be made to see that, as far as possible, the appellants lands would be made available to them for their expansion if they are ready and willing to take them on the same terms and conditions on which, lands in the area would be given to other industrialists, provided that the appellants lands have not already been allotted to any other industrialist. We should think that there has been a very fair offer made on behalf of the Development Corporation. We dare say that the assurance recorded by the High Court will be acted upon by the concerned authorities.
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Kasturi Lal Lakshmi Reddy Vs. State of Jammu and Kashmir and Another | persuade them to set up an industry. The State must be free in such a case to negotiate with a private entrepreneur A with a view to inducing him to set up an industry within the State and if the State enters into a contract with such entrepreneur for providing resources and other facilities for setting up an industry, the contract cannot be assailed as invalid so long as the State had acted bona fide, reasonably and in public interest. If the terms and conditions of the contract or the surrounding circumstances show that the State has acted mala fide or out of improper or corrupt motive or in order to promote the private interests of someone at the cost of the State, the Court will undoubtedly interfere and strike down State action as arbitrary, unreasonable or contrary to public interest. But so long as the State action is bonafide and reasonable, the Court will not interfere merely on the ground that no advertisement was given or publicity or made or tenders invited. Here, the 2nd respondents approached the State for the purpose of setting up a modern factory for manufacture of resin, turpentine oil and other derivatives and asked for allocation or resin and the State, with a view to offering an incentive to the 2nd respondents to set up the factory, made the impugned order awarding the tapping contract in respect of these blazes to the 2nd respondents as a part of a package deal. We have already pointed out and w need not repeat again, that the impugned order was reasonable and in the interest of the State and in the circumstances, we are clearly of the view that it cannot be assailed as invalid merely because no advertisements were issued inviting offers for setting up a factory and taking the tapping contract as an integral part of the transaction.27. It may, however, be pointed out that though no advertisements were issued by the State, the Chief Minister of Jammu and Kashmir had in the course of three speeches delivered by him-one in Bombay. the other in Calcutta and the third in New Delhi invited entrepreneurs to set up industries within the State with a view to bringing about rapid industrialisation and economic development of the State by utilising its "peculiar natural resources" and converting them into finished or semi-finished products and promising "various forms of assistance and incentives" for the purpose. These speeches were widely advertised in the newspapers and it was, therefore, known to entrepreneurs that the State would be willing to provide resources and other facilities to those who were interested in setting up industries within the State and, in fact. the State was anxious to attract entrepreneurs to start industries and it was in pursuance of this invitation that Prabhat Tarpens and Synthetics Private Limited, Dujodwala Resins and Tarpens. Pvt. Ltd., Pine Chemicals Limited and the second respondents made their respective offers f or putting up factories within the State. It is, there fore, in any event not correct to say that the petitioners had no opportunity of making an offer of setting up a factory and obtaining a tapping contract for the purpose.28. It is also necessary to point out that the claims of the petitioners in writ petition No. 481 of 1978 and some others were considered by the Forest Minister and other forest officials at the meeting held on 25th December, 1978 and applying the criteri on of "financial status and its distillation in the factory"-which criterion cannot be said to be irrational or irrelevant-the application of the 2nd respondents was unanimously accepted. This decision cannot be said to be mala fide or prompted by improper or corrupt motive. There is, in fact, no evidence before us to show or even as much as to suggest that any favour was conferred on the 2nd respondents at the cost of the State or that the 2nd respondents were preferred to some others without any basis or justification. The petitioners in writ petition No. 481 of 1979 had very little experience of extraction of resin, since they had taken tapping contract for the first time only in 1978-79 and so far as processing of resin is concerned, they had no experience at all, as they did not have any factory for processing of resin nor had they at any time in the past, participated in any auction of resin. The petitioners in writ petition No. 481 of 1979 were principally grocery and provision merchants and though they had taken some tapping contracts in the past, they had no experience at all in processing of resin since they did not own any factory. The 2nd respondents, on the other hand, had large experience in extraction of resin from inaccessible forests of Poonch Division and they also possessed considerable experience in distillation and processing of resin since they had two factories, one in Hoshiarpur and the other in Delhi. The State h ad in fact given two contracts to the 2nd respondents in the year 1974-75 to install factories for manufacture of resin and turpentine oil in the public sector and these contracts have been carried out by the 2nd respondents to the entire satisfaction of the State. Therefore, so far as the relative merits of the petitioner on one hand and the 2nd respondents on the other were concerned, the 2nd respondents were definitely superior and it cannot be said that the State acted unreasonably or contrary to public interest in preferring the 2nd respondents and permitting them to put up a factory within the State and awarding them tapping contract in respect of these blazes for the purpose of the factory. It may be pointed that the petitioners in writ petition No. 482 of 1979 had not even got their registration renewed for the year 1979-80 and hence no tapping contract could possibly be given to them. We must, accordingly, reject the third ground of challenge urged on behalf of the petitions.29. | 0[ds]So far as the first limitation is concerned, it flows directly from the thesis that, unlike a private individual, the State cannot act as it pleases in the matter of giving largess. Though ordinarily a private individual would be guided by economic considerations of selfgain in any action taken by him, it is always open to him under the law to act contrary to hisor to oblige another in entering into a contract or. dealing with his property. But the Government is not free lo act as it likes in granting largess such as awarding a contract or selling or leasing out its property. Whatever be its activity, the Government is still the Government and is, subject to restraints inherent in its position in a democratic society. The constitutional power conferred on the Government cannot be exercised by it arbitrarily or capriciously or in and unprincipled manner; it has to be exercised for the public good. Every activity of the Government has a public element in it and it must therefore, be informed with reason and guided by public interest. Every action taken by the Government must be in public interest; the Government cannot act arbitrarily and without reason and if it does, its action would be liable to be invalidated. If the Government awards a contract or leases out or otherwise deals with its property or grants any other largess, it would be Liable to be tested for its validity on theof reasonableness and public interest and if it fails to satisfy either best, it would be unconstitutional andwhat is the test of reasonableness which has to be applied in order to determine the validity of governmental action. It is undoubtedly true, as pointed out by Patanjali Shastri, J. in State of Madras v. V.G. Rau, that in forming his own conception of what is reasonable, in all the circumstances of a given case, it is inevitable that the social philosophy and the scale of values of the judge participating in the decision, would play an important part, but even so, me test of reasonableness is not a wholly subjective test and its contours are fairly indicated by the Constitution. The concept of reasonableness in fact pervades the entire constitutional scheme. The interaction of Arts. 14, 19 and 21 analysed by this Court in Maneka Gandhi v. Union of India, clearly demonstrated that the requirement of reasonableness runs like a golden thread through the entire fabric of fundamental rights and, as several decisions of this Court show, this concept of reasonableness finds its positive manifestation and expression in the lofty ideal of social and economic justice which inspires and animates the Directive Principles. It has been laid down by this Court in E.P. Royappa v. State of Tamil Nadu, and Maneka Gandhis case (supra) that Art. 14 strikes at arbitrariness in State action and since the, principle of reasonableness and rationality, which is legally as well as philosophically an essential element of equality oris protected by this article, it must characterise every governmental action, whether it be under the authority of law or in exercise of executive power without making ofalso the concept of reasonableness runs through the totality of Art. 19 and requires that restrictions on the freedoms of the citizen, in order to be permissible, must at the best be reasonable. Similarly Art. 21 in the full plenitude of its activist magnitude as discovered by Maneka Gandhis case, insists that no one shall be deprived of his life or personal liberty except in accordance with procedure established by law and such procedure must be reasonable, fair and just. The Directive Principles concretise and give shape to the concept of reasonableness envisaged in Articles 14, 19 and 21 and other articles enumerating the fundamental rights. By defining the national aims and the con stitutional goals, they setforth the standards or norms of reasonableness which must guide and animate governmental action. Any action taken by the Government with a view to giving effect to any one or more of the Directive Principles would ordinarily, subject to any constitutional or legal inhibitions or otherconsiderations, qualify for being regarded as reasonable, while an action which is inconsistent with or runs counter to a Directive Principle would incur the reproach of being unreasonable.So also the concept of public interest must as far as possible receive its orientation from the Directive Principles. What according to the founding fathers constitutes the plainest requirement of public interest is set out in the Directive Principles and they embody par excellence the constitutional concept of public interest. If, therefore, any governmental action is calculated to implement or give effect to a Directive Principle, it would ordinarily, subject to any other overriding considerations, be informed with publicGovernment, therefore, cannot, for example, give a contract or sell or lease out its property for a consideration less than the highest that can be obtained for it, unless of course there are other considerations which render it reasonable and in public interest to do so. Such considerations may be that some Directive Principle is sought to be advanced or implemented or that the contract or the property is given not with a view to earning revenue but for the purpose of carrying out a welfare scheme for the benefit of a particular group or section of people deserving it or that the person who has offered a higher consideration is not otherwise fit to be given the contract or the property. We have referred to these considerations to only illustratively, for there may be an infinite variety of considerations which may have to be taken into account by the Government in formulating its policies and it is on a total evaluation of various considerations which have weighed with the Government in taking a particular action, that the Court would have to decide whether the action of the Government is reasonable and in public interest. But one basic principle which must guide the Court in arriving at its determination on this question is that there is always a presumption that the Governmental act ion is reasonable and in public interest and it is for the party challenging its validity to show that it is wanting in reasonableness or is not informed with public interest. This burden is a heavy one and it has to be discharged to the satisfaction of the Court by proper and adequate material. The Court cannot lightly assume that the action taken by the Government is unreasonable or without public interest because, as we said above, there are a large number of policy considerations which must necessarily weigh with the Government in taking action and therefore the Court would not strike Down governmental action as invalid on this ground, unless it is clearly satisfied that the action is unreasonable or not in public interest. But where it is so satisfied, it would be the plainest duty of the Court under the Constitution to invalidate the governmental action. This is one of the most important functions of the Court and also one of the most essential for preservation of the rule ofmay be pointed out that this ground of invalidity, namely, that the government al action is unreasonable or lacking in the quality of public interest, is different from that of malafides though it may, in a given case, furnish evidence ofsecond limitation on the discretion of the Government in grant of largess is in regard to the persons to whom such largess may be granted. It is now well settled as a result of the decision of this Court in Ramana D. Shetty v. International Airport Authority of India &Ors. (supra) that the Government is not free like an ordinary individual, in selecting the recipients for its largess and it cannot choose to deal with any person it pleases in its absolute and unfettered discretion. The law is now well established that the Government need not deal with anyone. but if it does so, it must do so fairly without discrimination and without unfair procedure. Where the Government is dealing with the public, whether by way of giving jobs or entering into contracts or g ranting other forms of largess. the Government cannot act arbitrarily at its, sweet will and, like a private individual, deal with any person it pleases, but its action must be in conformity with some standard or norm which is not arbitrary, irrational or irrelevant. The governmental action must not be arbitrary or capricious, but must be based on some principle which meets the test of reason and relevance. This rule was enunciated by the Court as a rule of administrative law and it was also validated by the Court as an emanation flowing directly from the doctrine of equality embodied in Art. 14. The Court referred to the activist magnitude of Art. 14 as evolved in E. P. Royappa v. State of Tamil Nadu (supra) and Maneka Gandhis case (supra) and observed that it must follow "as a necessary corollary from the principle of equality enshrined in Art. 14 that though the State is entitled to refuse to enter into relationship with anyone, yet if it does so, it cannot arbitrarily choose any person it likes for entering into such relationship and discriminate between persons similarly circumstanced, but it must act in conformity with some standard or principle which meets the test of reasonableness andand any departure from such standard or principle would be invalid unless it can be supported or justified on some rational andground." This decision has reaffirmed the principle of reasonableness andin governmental action which lies at the core of our entire constitutional scheme andargument plausible though it may seem at first blush, is in our opinion not well founded and a closer look at the facts will clearly show that it cannot bemay first clear the ground by stating a few undisputed facts. The practice which was being followed by the State until the yearwas to give out blazes in the chir forests either on wage contract basis or on royalty basis with or without load. The result was that about 50 per cent of the resin extracted used to be taken away by the contractors and the balance of 50 per cent remained with the State which the State partly made available to its own factories and small scale units in the State and partly sold by auction and out of the quantity auctioned the bulk was purchased by manufacturers having factories in Hoshiarpur. It appears that from about 1975 onwards the State embark ed upon a policy of industrialisation and in furtherance of this policy, it decided some time in the later half of 1978, that from the yearno resin should be allowed to he exported outside the State territories and that it should be made available for being utilised only in industries set up within the State. But this measure by itself was not enough, because so long as contracts for extracting resin were given on royalty basis with or without load, a sizable quantity of resin extract ed would go into the hands of the contractors and would not become available to the State for fulfilling its commitments. The State, therefore, decided as a matter of policy to replace royalty contracts by wage contracts wherever possible and to auction blazes for tapping only on wage contracts basis. But, as pointed out above, there were certain forests in Reasi, Ramban and Poonch Divisions which were difficult of access on account of their distance from the roads and some of the forests in Poonch Division were near the line of actual control and consequently it was found impracticable to give them for tapping on wage contract basis. It was difficult to give them for tapping even on the basis of royalty without load and the maximum that could be obtained for a part of the blazes in the Reasi, Division in the yearwas royalty of Rs. 2.55 per blaze without load. It was, therefore, decided by the State to exclude about 11, 85, 414 blazes in the Reasi, Ramban and Poonch Divisions from tapping through wage contract and they were kept out of the auctions held by the State. The Association undoubtedly made representations requesting the State to include these blazes in the auctions, but as is evident from the letters dated 5th February 1979 and 8th March 1979 addressed respectively to the Forest Minister. and the Chief Minister, the emphasis of the Association was that the system of working should be changed from wage contract to royalty contract" and that these blazes should be put to auction on royalty basis. The State obviously, in view of its policy, could not accede to this request made on behalf of the Association and since, having regard to past experience. it was felt that it would be futile to offer these blazes for tapping through wage contract, the State was not unjustified in not including them in the auctions. Now the second respondents offered to set up a factory for manufacture of resin, turpentine oiland other derivatives in theState and requested to State to make allotment of resin annually for this purpose on the same terms and conditions on which allotment was proposed to be made to Camphor and Allied Products Ltd. and Prabhat General Agencies. The State, in view of its policy of Industrialisation, was interested in the setting up of the factory by the second respondents, particularly since the second respondents had two factories for manufacture of resin, turpentine oil and other derivatives and they possessed larger experience in processing of resin and reprocessing, of resin, turpentine oil and other derivatives. But, having regard to the commitments already made by it, it was not possible for the State to make any definite allotment of resin to the second respondents. The State, however, had these blazes in the Reasi, Ramban and Poonch Divisions which it was finding impracticable to tap through wage contract and the State, therefore, decided to give them for tapping to the second respondents on certain terms and conditions, so that the second respondents could if they were prepared to tap these blazes in inaccessible areas, secure an assured supply of 3500 metric tones of resin for the purpose of the factory to be set up by them within the State. It was in these circumstances that the impugned order dated 27th April 1979 came to be passed by theis clear from theof the facts and circumstances in which the impugned order came to be made and terms and conditions set out in the impugned Order that it was not a tapping contract simpliciter which was intended to be given to the second respondents. The second respondents wanted to be assured of regular supply of raw material in the shape of resin before they could decide to set up a factory within the State and it was for the purpose of ensuring supply of such raw material that the impugned order was made giving tapping contract to the second respondents. It was really by way of allocation of raw material for running the factory that the impugned order was passed. The terms of the impugned order show beyond doubt that the second respondents were under an obligation to set up a factory within the State and that 3500 metric tones of resin which was permitted to be retained by the second respondents out of the resin extracted by them was required to be utilised in the factory to be set up by them and it was provided that no part of the Resin extracted should be allowed to be removed outside the State. The whole object of the impugned order was to make available 3500 metric tones of resin to the second respondents for the purpose of running the factory to be set up by them. The advantage to the State was that a new factory for manufacture of resin, turpentine oil and other derivatives would come up within its territories offering more job opportunities to the people of the State increasing their prosperity and augmenting the State revenues and in addition the State would be assured of a definite supply of at least 1500 metric tones of resin for itself without any financial involvement or risk and with this additional quantity of resin available to it, it would be able to set up another factory creating more employment opportunities and, in fact, as the counter affidavit of Ghulam Rasul, under secretary to the Government filed on behalf of the State shows the Government lost no time in taking steps to set up a public sector resin distillation plant in a far flung area of the State, namely, Sundarbani, in Rajouri District. Moreover, the State would be able to secure extraction of resin from these inaccessible areas on the best possible terms instead of allowing them to remain unexploited or given over at ridiculously low royalty. We cannot accept the contention of the petitioners that under the impugned order a huge benefit was conferred on the second respondents at the cost of the State. Itis clear from theterms of the impugned order that the second respondents would have to extract at least 5000 metric tones of resin from the blazes allotted to them in order to be entitled to retain 3500 metric tones. The counter affidavit of Ghulam Rasul on behalf of the first respondent and Guran Devaya on behalf of the second respondents show that the estimated cost of ex traction and collection of resin from these inaccessible areas would be at the least Rs. 175/ per quintal, though according to Guran Devaya it would be in the neighbourhood of Rs. 200 per quintal, but even if we take the cost at the minimum figure of Rs. 175/ per quintal, the total cost of extraction and collection would come to Rs. 87, 50, 000/and on this investment of Rs. 87, 50, 000/required to be made by the second respondents the amount of interest at the prevailing bank rat e would work out to about Rs. 13, 00,Now, as against this expenditure of Rs. 87, 50, 000/plus Rs. 13, 00, 000/the second respondents would be entitled to claim from the State in respect of 1500 metric tones of resin to be delivered to it only at the rate sanctioned by the Forest Department for the adjoining accessible forests which were being worked on wage contract basis. It is stated in the counter affidavits of Ghulam Rasul and Guran Devaya and this statement is not seriously challenged on behalf of the petitioners, that the cost of extraction and collection as sanctioned by the Forest Department for the adjoining accessible forests given on wage contract basis in the yearwas Rs. 114/per quintal an d the second respondents would, thus, be entitled to claim from the State no more than Rs. 114/per quintal in respect of 1500 metric tones to be delivered to it and apart from bearing the difference between the actual cost of extraction and collection and the amount received from the State at the rate of Rs. 114/per quintal in respect of 1500 metric tones, the second respondents would have to pay the price of the remaining 3500 metric tones to be retained by them at the rate of Rs. 350/per quintal. On this reckoning, the cost of 3500 metric tones to be retained by the second respondents would work out at Rs. 474/per quintal. The result would be that under the impugned order the State would get 1500 metric tones of res in at the rate of Rs. 114/per quintal while the second respondents would have to pay at the rate of Rs. 474/per quintal for the balance of 3500 metric tones retained by them. Obviously, a large benefit would accrue to the State under the impugn ed order. If the State were to get the blazes in these inaccessible areas tapped through wage contract, the minimum cost would be Rs. 175/per quintal, without taking into account the additional expenditure on account of interest, but under the impugned order the State would get 1500 metric tones of resin at a greatly reduced rate of Rs. 114/per quintal without any risk or hazard. The State would also receive for 3500 metric tones of resin retained by the 2nd respondents price or royalty at the rate of 474/per quintal which would be much higher than the rate of Rs. 260/per quintal at which the State was allotting resin to medium scale industrial units and the rate of Rs. 320/per quintal at which it was allotting resin to small scale units within the State. It is difficult to see how on these facts the impugned order could be said to be disadvantageous to the State or in any way favouring the second respondents at the cost of the State. The argument of th e petitioners was that at the auctions held in December 1978, January 1979 and April 1979, the price of resin realised was as much as Rs.and Rs. 700/per quintal respectively and when the market price was so high, it was improper and contrary to public interest on the part of the State to sell resin to the second respondents at the rate of Rs. 320/per quintal under the impugned order. This argument, plausible though it may seem, is fallacious because it does not take into account the policy of the State not to allow export of resin outside its territories but to allot it only for use in factories set up within the State. It is obvious that, in view of this policy no resin would be auctioned by the State and there would b e no question of sale of resin in the open market and in this situation, it would be totally irrelevant to import the concept of market price with reference to which the adequacy of the price charged by the State to the 2nd respondents could be judged. If the State were simply selling resin, there can be no doubt that the State must endeavour to obtain the highest price subject, of course, to any other overriding considerations of public interest and in that event its action in giving res in to a private individual at a lesser price would be arbitrary and contrary to public interest. But, where the State has, as a matter of policy, stopped selling resin to outsiders and decided to allot it only to industries set up within the State f or the purpose of encouraging industrialisation, there can be no scope for complaint that the State is giving resin at a lesser price than that which could be obtained in the open market. The yardstick of price in the open market would be wholly inept, because in view of the State policy, there would be no question of any resin being sold in the open market. The object of the State in such a case is not to earn revenue from sale of resin, but to promote the setting up of industries within the State. Moreover, the prices realised at the auctions held in December 1978? January 1979 and April 1979 did not reflect the correct and genuine price of resin, because by the time these auctions came to be held, it had become known that the State had taken a policy decision to ban export of resin from its territories with effect fromand the prices realised at the auctions were therefore scarcity prices. In fact, the auction held in April 1979 was the last auction in t he State and since it was known that in future no resin would be available for sale by auction in the open market to outsiders, an unduly high price of Rs. 700/per quintal was offered by the factory owners having their factories outside the State, so that they would get as much resin or the purpose of feeding their industrial units for some time. The counter affidavits show that, in fact, the average sale price of resin realised during the yearwas only Rs. 433/per quintal and as compared to this price, the 2nd respondents were required to pay price of royalty at a higher rate of Rs. 474/per quintal for 3500 metric tones of resin to be retained by them under the impugned order. It is in the circumstances impossible to see how it can at all be said that any benefit was conferred on the second respondents at the cost of the State. The first head of challenge against the impugned order must, therefore, beimpugned order did not hand over the tapping of the entire forest area in the State exclusively to the 2nd respondents so as to deny the opportunity of tapping any forest areas to the petitioners. What was done under the impugned order was merely to allot 11, 85, 414 blazes in the inaccessible areas of Reasi, Ramban and Poonch divisions to the 2nd respondents so that the 2nd respondents could have an assured supply of 3500 metric tones of resin for the purpose of feeding the factory to be set up by them in the State and a large number of blazes amounting to about 68 lacs in other forest areas of the State were left available for tapping by the petitioners and other forest contractors. No monopoly was created in favour of the second respondents; the petitioners and other forest contractors could bid for wage contract in respect of the other blazes which were more than five times in number than the blazes allotted to the second respondents. The petitioners in writ petition 481 of 1979, in fact, obtained a wage contract for extraction of resin from an easily accessible forest in Rajouri Division for the aggregate sum of Rs. 2, 80, 250/in the yearand though it is true that the petitioners in writ petition No. 482/79 did not obtain any wage contract for tapping in this year, it was not because blazes were not available for tapping, but because the petitioners did not get their registrationthird and last ground of challenge is also difficult to sustain. We fail to see how the action of the State in making the impugned order in favour of the 2nd respondents could be said to be arbitrary or unreasonable. Itis clear from thefacts we have narrated above and we need not repeat those facts again, that the State was not unjustified in excluding 11, 85, 414 blazes situate in the inaccessible areas of Reasi, Ramban and Poonch Divisions from the auctions , since the past experience showed that even on the basis of royalty without load, it was difficult to attract bidders and the maximum that could be obtained, and that too only in one solitary year, was Rs. 2.55 per blaze without load, which was an absurdly low return and it was, therefore, felt quite justifiably, that it would be futile to include these blazes in the auctions for tapping on wage contract basis. The State also could not award a contract simpliciter for tapping on the basis of royalty with or without load, because, as a matter of policy, with a view to encouraging industrialisation, the State did not want resin to go outside its territories but wanted it to be used only for the purpose of feeding industries s et up within the State and even if a condition could legitimately be imposed on the contractor that he should sell the resin extracted and retained by him only to industries within the State, it would be difficult to ensure observance of such condition and moreover the object of the State to make resin available to the local industries at a reasonable price might be frustrated, because the contractor taking advantage of scarcity in supply of resin, might, and in all probability would , try to extract a much higher price from the industries needing resin. It was thus found to be an impracticable proposition to tap these blazes either on wage contract basis or on the basis of royalty with or withoutthe 2nd respondents had made an offer for putting up a modern plant for manufacture of resin, turpentine oil and other derivatives within the State provided they were assured a definite supply of resin every year. But having regard to the commitments already made by it, it was not possible for the State to make any definite allocation of resin to the 2nd respondents and a proposal was therefore mooted that 11, 85, 414 blazes in inaccessible areas of Reasi, Ramban and Poonch Divisions could be allocated to the 2nd respondents for tapping on certain terms and conditions, so that the 2nd respondents could tap these blazes and out of the resin extracted, obtain for themselves an assured supply for running the factory to be set up by them and make the balance quantity available to the State for its own purpose. The 2nd respondents were agreeable to this proposal and they accordingly put forward an alternative proposal on these lines for the consideration of the State and eventually, the impugned order came to be made in favour of the 2nd respondents. We have already discussed the terms of the impugned order and it is clear from what we have said that the impugned order was unquestionable and without doubt, in the interest of the State and even with a microscopic examination we Pail to see anything in it which could possibly incur the reproach of being condemned as arbitrary or irrational. It is true that no advertisements were issued by the State inviting t enders for award of tapping contract in respect of these blazes; or stating that tapping contract would be given to any party who is prepared to put up a factory for manufacture of resin, turpentine oil and other derivatives within the State, but it must be remembered that it was not tapping contract simpliciter which was being given by the State. The tapping contract was being given by way of allocation of raw material for feeding the factory to be set up by the 2nd respondents. The predominant purpose of the transaction was to ensure setting up of a factory by the 2nd respondents as part of the process of industrialisation of the State and since the 2nd respondents wanted assurance of a definite supply of resin as a condition of putting up the factory, the State awarded the tapping contract to the 2nd respondents for that purpose. If the State were giving tapping contract simpliciter there can be no doubt that the State would have to auction or invite tenders for securing the highest price, subject, of course, to any other relevant overriding considerations of public weal or interest, but in a case like this where the State is allocating resources such as water, power, raw materials etc. for the purpose of encouraging setting up of industries within the State, we do not think the State is bound to advertise and tell the people that it wants a particular industry to be set up within the State and invite those interested to come up with proposals for the purpose. The State may choose to do so, if it thinks fit and in a given situation, it may even turn to be advantageous for the State to do so, but if any private party comes before the State and offers to set up an industry, the State would not be committing breach of any constitutional or legal obligation if it negotiates with such party and agrees to provide resources and other facilities for the purpose of setting up the industry. The State is no t obliged to tell such party; "Please wait. I will first advertise, see whether any other offers are forthcoming and then after considering all offers, decide whether I should let you set up the industry." It would be most unrealistic to insist on such a procedure particularly in an area like Jammu and Kashmir which on account of historical, political and other reasons, is not yet industrially developed and where entrepreneurs have to be offered attractive terms in order to persuade them to set up an industry. The State must be free in such a case to negotiate with a private entrepreneur A with a view to inducing him to set up an industry within the State and if the State enters into a contract with such entrepreneur for providing resources and other facilities for setting up an industry, the contract cannot be assailed as invalid so long as the State had acted bona fide, reasonably and in public interest. If the terms and conditions of the contract or the surrounding circumstances show that the State has acted mala fide or out of improper or corrupt motive or in order to promote the private interests of someone at the cost of the State, the Court will undoubtedly interfere and strike down State action as arbitrary, unreasonable or contrary to public interest. But so long as the State action is bonafide and reasonable, the Court will not interfere merely on the ground that no advertisement was given or publicity or made or tenders invited. Here, the 2nd respondents approached the State for the purpose of setting up a modern factory for manufacture of resin, turpentine oil and other derivatives and asked for allocation or resin and the State, with a view to offering an incentive to the 2nd respondents to set up the factory, made the impugned order awarding the tapping contract in respect of these blazes to the 2nd respondents as a part of a package deal. We have already pointed out and w need not repeat again, that the impugned order was reasonable and in the interest of the State and in the circumstances, we are clearly of the view that it cannot be assailed as invalid merely because no advertisements were issued inviting offers for setting up a factory and taking the tapping contract as an integral part of themay, however, be pointed out that though no advertisements were issued by the State, the Chief Minister of Jammu and Kashmir had in the course of three speeches delivered byin Bombay. the other in Calcutta and the third in New Delhi invited entrepreneurs to set up industries within the State with a view to bringing about rapid industrialisation and economic development of the State by utilising its "peculiar natural resources" and converting them into finished orproducts and promising "various forms of assistance and incentives" for the purpose. These speeches were widely advertised in the newspapers and it was, therefore, known to entrepreneurs that the State would be willing to provide resources and other facilities to those who were interested in setting up industries within the State and, in fact. the State was anxious to attract entrepreneurs to start industries and it was in pursuance of this invitation that Prabhat Tarpens and Synthetics Private Limited, Dujodwala Resins and Tarpens. Pvt. Ltd., Pine Chemicals Limited and the second respondents made their respective offers f or putting up factories within the State. It is, there fore, in any event not correct to say that the petitioners had no opportunity of making an offer of setting up a factory and obtaining a tapping contract for theis also necessary to point out that the claims of the petitioners in writ petition No. 481 of 1978 and some others were considered by the Forest Minister and other forest officials at the meeting held on 25th December, 1978 and applying the criteri on of "financial status and its distillation in thecriterion cannot be said to be irrational orapplication of the 2nd respondents was unanimously accepted. This decision cannot be said to be mala fide or prompted by improper or corrupt motive. There is, in fact, no evidence before us to show or even as much as to suggest that any favour was conferred on the 2nd respondents at the cost of the State or that the 2nd respondents were preferred to some others without any basis or justification. The petitioners in writ petition No. 481 of 1979 had very little experience of extraction of resin, since they had taken tapping contract for the first time only inand so far as processing of resin is concerned, they had no experience at all, as they did not have any factory for processing of resin nor had they at any time in the past, participated in any auction of resin. The petitioners in writ petition No. 481 of 1979 were principally grocery and provision merchants and though they had taken some tapping contracts in the past, they had no experience at all in processing of resin since they did not own any factory. The 2nd respondents, on the other hand, had large experience in extraction of resin from inaccessible forests of Poonch Division and they also possessed considerable experience in distillation and processing of resin since they had two factories, one in Hoshiarpur and the other in Delhi. The State h ad in fact given two contracts to the 2nd respondentsin the yearto install factories for manufacture of resin and turpentine oil in the public sector and these contracts have been carried out by the 2nd respondents to the entire satisfaction of the State. Therefore, so far as the relative merits of the petitioner on one hand and the 2nd respondents on the other were concerned, the 2nd respondents were definitely superior and it cannot be said that the State acted unreasonably or contrary to public interest in preferring the 2nd respondents and permitting them to put up a factory within the State and awarding them tapping contract in respect of these blazes for the purpose of the factory. It may be pointed that the petitioners in writ petition No. 482 of 1979 had not even got their registration renewed for the yearand hence no tapping contract could possibly be given to them. We must, accordingly, reject the third ground of challenge urged on behalf of the petitions. | 0 | 11,964 | 6,793 | ### 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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persuade them to set up an industry. The State must be free in such a case to negotiate with a private entrepreneur A with a view to inducing him to set up an industry within the State and if the State enters into a contract with such entrepreneur for providing resources and other facilities for setting up an industry, the contract cannot be assailed as invalid so long as the State had acted bona fide, reasonably and in public interest. If the terms and conditions of the contract or the surrounding circumstances show that the State has acted mala fide or out of improper or corrupt motive or in order to promote the private interests of someone at the cost of the State, the Court will undoubtedly interfere and strike down State action as arbitrary, unreasonable or contrary to public interest. But so long as the State action is bonafide and reasonable, the Court will not interfere merely on the ground that no advertisement was given or publicity or made or tenders invited. Here, the 2nd respondents approached the State for the purpose of setting up a modern factory for manufacture of resin, turpentine oil and other derivatives and asked for allocation or resin and the State, with a view to offering an incentive to the 2nd respondents to set up the factory, made the impugned order awarding the tapping contract in respect of these blazes to the 2nd respondents as a part of a package deal. We have already pointed out and w need not repeat again, that the impugned order was reasonable and in the interest of the State and in the circumstances, we are clearly of the view that it cannot be assailed as invalid merely because no advertisements were issued inviting offers for setting up a factory and taking the tapping contract as an integral part of the transaction.27. It may, however, be pointed out that though no advertisements were issued by the State, the Chief Minister of Jammu and Kashmir had in the course of three speeches delivered by him-one in Bombay. the other in Calcutta and the third in New Delhi invited entrepreneurs to set up industries within the State with a view to bringing about rapid industrialisation and economic development of the State by utilising its "peculiar natural resources" and converting them into finished or semi-finished products and promising "various forms of assistance and incentives" for the purpose. These speeches were widely advertised in the newspapers and it was, therefore, known to entrepreneurs that the State would be willing to provide resources and other facilities to those who were interested in setting up industries within the State and, in fact. the State was anxious to attract entrepreneurs to start industries and it was in pursuance of this invitation that Prabhat Tarpens and Synthetics Private Limited, Dujodwala Resins and Tarpens. Pvt. Ltd., Pine Chemicals Limited and the second respondents made their respective offers f or putting up factories within the State. It is, there fore, in any event not correct to say that the petitioners had no opportunity of making an offer of setting up a factory and obtaining a tapping contract for the purpose.28. It is also necessary to point out that the claims of the petitioners in writ petition No. 481 of 1978 and some others were considered by the Forest Minister and other forest officials at the meeting held on 25th December, 1978 and applying the criteri on of "financial status and its distillation in the factory"-which criterion cannot be said to be irrational or irrelevant-the application of the 2nd respondents was unanimously accepted. This decision cannot be said to be mala fide or prompted by improper or corrupt motive. There is, in fact, no evidence before us to show or even as much as to suggest that any favour was conferred on the 2nd respondents at the cost of the State or that the 2nd respondents were preferred to some others without any basis or justification. The petitioners in writ petition No. 481 of 1979 had very little experience of extraction of resin, since they had taken tapping contract for the first time only in 1978-79 and so far as processing of resin is concerned, they had no experience at all, as they did not have any factory for processing of resin nor had they at any time in the past, participated in any auction of resin. The petitioners in writ petition No. 481 of 1979 were principally grocery and provision merchants and though they had taken some tapping contracts in the past, they had no experience at all in processing of resin since they did not own any factory. The 2nd respondents, on the other hand, had large experience in extraction of resin from inaccessible forests of Poonch Division and they also possessed considerable experience in distillation and processing of resin since they had two factories, one in Hoshiarpur and the other in Delhi. The State h ad in fact given two contracts to the 2nd respondents in the year 1974-75 to install factories for manufacture of resin and turpentine oil in the public sector and these contracts have been carried out by the 2nd respondents to the entire satisfaction of the State. Therefore, so far as the relative merits of the petitioner on one hand and the 2nd respondents on the other were concerned, the 2nd respondents were definitely superior and it cannot be said that the State acted unreasonably or contrary to public interest in preferring the 2nd respondents and permitting them to put up a factory within the State and awarding them tapping contract in respect of these blazes for the purpose of the factory. It may be pointed that the petitioners in writ petition No. 482 of 1979 had not even got their registration renewed for the year 1979-80 and hence no tapping contract could possibly be given to them. We must, accordingly, reject the third ground of challenge urged on behalf of the petitions.29.
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political and other reasons, is not yet industrially developed and where entrepreneurs have to be offered attractive terms in order to persuade them to set up an industry. The State must be free in such a case to negotiate with a private entrepreneur A with a view to inducing him to set up an industry within the State and if the State enters into a contract with such entrepreneur for providing resources and other facilities for setting up an industry, the contract cannot be assailed as invalid so long as the State had acted bona fide, reasonably and in public interest. If the terms and conditions of the contract or the surrounding circumstances show that the State has acted mala fide or out of improper or corrupt motive or in order to promote the private interests of someone at the cost of the State, the Court will undoubtedly interfere and strike down State action as arbitrary, unreasonable or contrary to public interest. But so long as the State action is bonafide and reasonable, the Court will not interfere merely on the ground that no advertisement was given or publicity or made or tenders invited. Here, the 2nd respondents approached the State for the purpose of setting up a modern factory for manufacture of resin, turpentine oil and other derivatives and asked for allocation or resin and the State, with a view to offering an incentive to the 2nd respondents to set up the factory, made the impugned order awarding the tapping contract in respect of these blazes to the 2nd respondents as a part of a package deal. We have already pointed out and w need not repeat again, that the impugned order was reasonable and in the interest of the State and in the circumstances, we are clearly of the view that it cannot be assailed as invalid merely because no advertisements were issued inviting offers for setting up a factory and taking the tapping contract as an integral part of themay, however, be pointed out that though no advertisements were issued by the State, the Chief Minister of Jammu and Kashmir had in the course of three speeches delivered byin Bombay. the other in Calcutta and the third in New Delhi invited entrepreneurs to set up industries within the State with a view to bringing about rapid industrialisation and economic development of the State by utilising its "peculiar natural resources" and converting them into finished orproducts and promising "various forms of assistance and incentives" for the purpose. These speeches were widely advertised in the newspapers and it was, therefore, known to entrepreneurs that the State would be willing to provide resources and other facilities to those who were interested in setting up industries within the State and, in fact. the State was anxious to attract entrepreneurs to start industries and it was in pursuance of this invitation that Prabhat Tarpens and Synthetics Private Limited, Dujodwala Resins and Tarpens. Pvt. Ltd., Pine Chemicals Limited and the second respondents made their respective offers f or putting up factories within the State. It is, there fore, in any event not correct to say that the petitioners had no opportunity of making an offer of setting up a factory and obtaining a tapping contract for theis also necessary to point out that the claims of the petitioners in writ petition No. 481 of 1978 and some others were considered by the Forest Minister and other forest officials at the meeting held on 25th December, 1978 and applying the criteri on of "financial status and its distillation in thecriterion cannot be said to be irrational orapplication of the 2nd respondents was unanimously accepted. This decision cannot be said to be mala fide or prompted by improper or corrupt motive. There is, in fact, no evidence before us to show or even as much as to suggest that any favour was conferred on the 2nd respondents at the cost of the State or that the 2nd respondents were preferred to some others without any basis or justification. The petitioners in writ petition No. 481 of 1979 had very little experience of extraction of resin, since they had taken tapping contract for the first time only inand so far as processing of resin is concerned, they had no experience at all, as they did not have any factory for processing of resin nor had they at any time in the past, participated in any auction of resin. The petitioners in writ petition No. 481 of 1979 were principally grocery and provision merchants and though they had taken some tapping contracts in the past, they had no experience at all in processing of resin since they did not own any factory. The 2nd respondents, on the other hand, had large experience in extraction of resin from inaccessible forests of Poonch Division and they also possessed considerable experience in distillation and processing of resin since they had two factories, one in Hoshiarpur and the other in Delhi. The State h ad in fact given two contracts to the 2nd respondentsin the yearto install factories for manufacture of resin and turpentine oil in the public sector and these contracts have been carried out by the 2nd respondents to the entire satisfaction of the State. Therefore, so far as the relative merits of the petitioner on one hand and the 2nd respondents on the other were concerned, the 2nd respondents were definitely superior and it cannot be said that the State acted unreasonably or contrary to public interest in preferring the 2nd respondents and permitting them to put up a factory within the State and awarding them tapping contract in respect of these blazes for the purpose of the factory. It may be pointed that the petitioners in writ petition No. 482 of 1979 had not even got their registration renewed for the yearand hence no tapping contract could possibly be given to them. We must, accordingly, reject the third ground of challenge urged on behalf of the petitions.
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Nichhalbhai Vallabhai & Others Vs. Jaswantlal Zinabhai & Others | hand and the "partition of goods and properties" on the other. This constitutes, therefore, a clear allegation of severance of status not only of the three branches but also of the members of the branch of the first defendant - Nichhalbhai. In that same paragraph the plaintiff goes on to say that the properties of the family should be separately distributed and that his share - 1 /105 - of movable and immovable properties should be separated and delivered to him. It is also important to notice that in paragraph 6 of the plaint the plaintiff has stated that the properties were and are held in common" and in paragraphs 8, 9, 10 and 12 of the plaint the word "distribution" is deliberately used. It is a well-known canon of interpretation that it is the duty of the Court not to confine itself to the force of a particular expression but to collect the intention from the whole instrument taken together. Having, therefore, regard to the statement of the plaintiff in all the paragraphs of the plaint and interpreting the plaint as a whole we are satisfied that the High Court was right in holding that the suit was not a suit brought for severance of joint family status but was a suit merely for partition by metes and bounds.4. We shall then proceed to consider the next question whether the High Court was right in allowing the application to the plaintiff for amending the plaint by deleting the words "svus Ns (and have)" in "ves Nhv (i.e. paragraph 2 and the words and are)" in paragraph e of the plaint. It was contended by Mr. Purshotam Trikumdas on behalf of the appellants that by allowing the amendment the High Court had permitted the plaintiff to convert the suit into another of a different and inconsistent character. It was submitted by Counsel that if the suit was one for severance of joint family status the plaintiff was bound to fail in limine in view of the decision of the Bombay High Court in (1892) ILR 16 Bom 29 (FB). It was contended that the plaintiff cannot be allowed to escape this consequence by amending a suit as one for partition by metes and bounds. We do not think that there is any warrant for this argument. We consider that the High Court was right in taking the view that the words "vus Ns ( and have)"and the words "vus Nhvs (i.e. and are)" were put in paragraph 2 and 3 of the plaint by mistake and inadvertence and it was, therefore, a proper case in which the court should exercise its discretion under O. 6, R. 17, Civil Procedure Code by allowing the amendment to be made. It was contended by Mr. Purshotam Tricumdas that the plaintiff was introducing a new case by making the amendment. We do not accept this argument as correct. We have already given reasons for holding that even apart from the amendment the plaint should be properly construed as asking for relief for partition by metes and bounds and not for severance of joint family status. We are of opinion that the words "vus Ns (and have)" "ves Nhvs in paragraph 2 and the words (i.e. and are)" in paragraph 3 of the plaint have been inserted on account of some mistake or misapprehension on the part of the plaintiff and it was, therefore a proper, case in which the Court allowed the plaint to be amended. The reason is that if the amendment is refused the plaintiff may have to bring another suit and the object of the rule for allowing amendments to the plaint is to avoid multiplicity of suits. The present case falls within the principle laid down by this Court in L. J. Leach and Co. Ltd. v. Jardine Skinner and Co., 1957 SCR 438 : )S) AIR 1957 SC 357 ). In that case the appellants had filed a suit for damages for conversion against the respondents on the allegations that the respondents were the agents of the appellants, that the appellants had placed orders for certain goods with the respondents, and that the respondents had actually imported the goods but refused to deliver them to the appellants. The suit was dismissed on the findings that the parties stood in the relationship of seller and purchaser, and not agent and principal and that the title in the goods could only pass to the appellants when the respondents appropriated them to the appellants contracts. In appeal before the Supreme Court, the appellants applied for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for nondelivery of the goods. The application was allowed by this Court on the ground that it was a fit case in which the amendment should be allowed and the fact that a fresh suit on the amended claim was barred by limitation is only a factor to be taken into consideration in the exercise of the discretion as to whether the amendment should be ordered or not, and does not affect the power of the court to order it, if that is required in the interests of justice. The case of the plaintiff for amendment in the present case stands on a stronger footing because there is no. question of limitation involved and we are of the opinion that the High Court was right in permitting the amendment to be made and remanding the suit to the trial Court for a fresh hearing in accordance with law.5. It should be added that Mr. Purshotam Trikumdas submitted that he is not challenging the correctness of the decision of the Full Bench in Apajis case, (1892) ILR 16 Bom 29 (FB) though before the High Court the correctness of the decision was questioned. We should like to make it clear that we are not expressing any opinion with regard to the correctness of that decision or its applicability to this case. | 0[ds]It is acanon of interpretation that it is the duty of the Court not to confine itself to the force of a particular expression but to collect the intention from the whole instrument taken together. Having, therefore, regard to the statement of the plaintiff in all the paragraphs of the plaint and interpreting the plaint as a whole we are satisfied that the High Court was right in holding that the suit was not a suit brought for severance of joint family status but was a suit merely for partition by metes anddo not think that there is any warrant for this argument. We consider that the High Court was right in taking the view that the words "vus Ns ( and have)"and the words "vus Nhvs (i.e. and are)" were put in paragraph 2 and 3 of the plaint by mistake and inadvertence and it was, therefore, a proper case in which the court should exercise its discretion under O. 6, R. 17, Civil Procedure Code by allowing the amendment to beare of opinion that the words "vus Ns (and have)" "ves Nhvs in paragraph 2 and the words (i.e. and are)" in paragraph 3 of the plaint have been inserted on account of some mistake or misapprehension on the part of the plaintiff and it was, therefore a proper, case in which the Court allowed the plaint to be amended. The reason is that if the amendment is refused the plaintiff may have to bring another suit and the object of the rule for allowing amendments to the plaint is to avoid multiplicity ofcase of the plaintiff for amendment in the present case stands on a stronger footing because there is no. question of limitation involved and we are of the opinion that the High Court was right in permitting the amendment to be made and remanding the suit to the trial Court for a fresh hearing in accordance with law.5. It should be added that Mr. Purshotam Trikumdas submitted that he is not challenging the correctness of the decision of the Full Bench in Apajis case, (1892) ILR 16 Bom 29 (FB) though before the High Court the correctness of the decision was questioned. We should like to make it clear that we are not expressing any opinion with regard to the correctness of that decision or its applicability to this case. | 0 | 2,322 | 438 | ### 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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hand and the "partition of goods and properties" on the other. This constitutes, therefore, a clear allegation of severance of status not only of the three branches but also of the members of the branch of the first defendant - Nichhalbhai. In that same paragraph the plaintiff goes on to say that the properties of the family should be separately distributed and that his share - 1 /105 - of movable and immovable properties should be separated and delivered to him. It is also important to notice that in paragraph 6 of the plaint the plaintiff has stated that the properties were and are held in common" and in paragraphs 8, 9, 10 and 12 of the plaint the word "distribution" is deliberately used. It is a well-known canon of interpretation that it is the duty of the Court not to confine itself to the force of a particular expression but to collect the intention from the whole instrument taken together. Having, therefore, regard to the statement of the plaintiff in all the paragraphs of the plaint and interpreting the plaint as a whole we are satisfied that the High Court was right in holding that the suit was not a suit brought for severance of joint family status but was a suit merely for partition by metes and bounds.4. We shall then proceed to consider the next question whether the High Court was right in allowing the application to the plaintiff for amending the plaint by deleting the words "svus Ns (and have)" in "ves Nhv (i.e. paragraph 2 and the words and are)" in paragraph e of the plaint. It was contended by Mr. Purshotam Trikumdas on behalf of the appellants that by allowing the amendment the High Court had permitted the plaintiff to convert the suit into another of a different and inconsistent character. It was submitted by Counsel that if the suit was one for severance of joint family status the plaintiff was bound to fail in limine in view of the decision of the Bombay High Court in (1892) ILR 16 Bom 29 (FB). It was contended that the plaintiff cannot be allowed to escape this consequence by amending a suit as one for partition by metes and bounds. We do not think that there is any warrant for this argument. We consider that the High Court was right in taking the view that the words "vus Ns ( and have)"and the words "vus Nhvs (i.e. and are)" were put in paragraph 2 and 3 of the plaint by mistake and inadvertence and it was, therefore, a proper case in which the court should exercise its discretion under O. 6, R. 17, Civil Procedure Code by allowing the amendment to be made. It was contended by Mr. Purshotam Tricumdas that the plaintiff was introducing a new case by making the amendment. We do not accept this argument as correct. We have already given reasons for holding that even apart from the amendment the plaint should be properly construed as asking for relief for partition by metes and bounds and not for severance of joint family status. We are of opinion that the words "vus Ns (and have)" "ves Nhvs in paragraph 2 and the words (i.e. and are)" in paragraph 3 of the plaint have been inserted on account of some mistake or misapprehension on the part of the plaintiff and it was, therefore a proper, case in which the Court allowed the plaint to be amended. The reason is that if the amendment is refused the plaintiff may have to bring another suit and the object of the rule for allowing amendments to the plaint is to avoid multiplicity of suits. The present case falls within the principle laid down by this Court in L. J. Leach and Co. Ltd. v. Jardine Skinner and Co., 1957 SCR 438 : )S) AIR 1957 SC 357 ). In that case the appellants had filed a suit for damages for conversion against the respondents on the allegations that the respondents were the agents of the appellants, that the appellants had placed orders for certain goods with the respondents, and that the respondents had actually imported the goods but refused to deliver them to the appellants. The suit was dismissed on the findings that the parties stood in the relationship of seller and purchaser, and not agent and principal and that the title in the goods could only pass to the appellants when the respondents appropriated them to the appellants contracts. In appeal before the Supreme Court, the appellants applied for amendment of the plaint by raising, in the alternative, a claim for damages for breach of contract for nondelivery of the goods. The application was allowed by this Court on the ground that it was a fit case in which the amendment should be allowed and the fact that a fresh suit on the amended claim was barred by limitation is only a factor to be taken into consideration in the exercise of the discretion as to whether the amendment should be ordered or not, and does not affect the power of the court to order it, if that is required in the interests of justice. The case of the plaintiff for amendment in the present case stands on a stronger footing because there is no. question of limitation involved and we are of the opinion that the High Court was right in permitting the amendment to be made and remanding the suit to the trial Court for a fresh hearing in accordance with law.5. It should be added that Mr. Purshotam Trikumdas submitted that he is not challenging the correctness of the decision of the Full Bench in Apajis case, (1892) ILR 16 Bom 29 (FB) though before the High Court the correctness of the decision was questioned. We should like to make it clear that we are not expressing any opinion with regard to the correctness of that decision or its applicability to this case.
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### Explanation:
It is acanon of interpretation that it is the duty of the Court not to confine itself to the force of a particular expression but to collect the intention from the whole instrument taken together. Having, therefore, regard to the statement of the plaintiff in all the paragraphs of the plaint and interpreting the plaint as a whole we are satisfied that the High Court was right in holding that the suit was not a suit brought for severance of joint family status but was a suit merely for partition by metes anddo not think that there is any warrant for this argument. We consider that the High Court was right in taking the view that the words "vus Ns ( and have)"and the words "vus Nhvs (i.e. and are)" were put in paragraph 2 and 3 of the plaint by mistake and inadvertence and it was, therefore, a proper case in which the court should exercise its discretion under O. 6, R. 17, Civil Procedure Code by allowing the amendment to beare of opinion that the words "vus Ns (and have)" "ves Nhvs in paragraph 2 and the words (i.e. and are)" in paragraph 3 of the plaint have been inserted on account of some mistake or misapprehension on the part of the plaintiff and it was, therefore a proper, case in which the Court allowed the plaint to be amended. The reason is that if the amendment is refused the plaintiff may have to bring another suit and the object of the rule for allowing amendments to the plaint is to avoid multiplicity ofcase of the plaintiff for amendment in the present case stands on a stronger footing because there is no. question of limitation involved and we are of the opinion that the High Court was right in permitting the amendment to be made and remanding the suit to the trial Court for a fresh hearing in accordance with law.5. It should be added that Mr. Purshotam Trikumdas submitted that he is not challenging the correctness of the decision of the Full Bench in Apajis case, (1892) ILR 16 Bom 29 (FB) though before the High Court the correctness of the decision was questioned. We should like to make it clear that we are not expressing any opinion with regard to the correctness of that decision or its applicability to this case.
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Seth Balgopal Das Vs. The State Of U.P. & Ors | of the Alla habad High Court had rejected the tenants Special Appeal summarily. This Court, however, granted special leave to appeal under Article 136 of the Constitution on 20th July, 1975. We need not express any opinion on the correctness of the second proposition here if we agree with the High Courts view on the first point because, in that case, the tenants application would be time barred even if the time spent in obtaining the copy was excluded.7. The only contention, put forward by Mr. B. Sen on behalf of the tenani-appellant, on the first point, is that there is a practice in Dehradun, acting on some instruction of the Commissioner, Meerut Division, to receive revision applications to the Commissioner through an Additional District Magistrate of Dehradun, who has, therefore, the Commissioners authority to receive these applications. It was urged that the filing of the Revision application before an Additional District Magistrate should be deemed, in these circumstances, to be sufficient compliance with the requirements of Section 3(2) of the Act which provides, as it clear from a bare look at it, that the revision application lies before the Commissioner.It is difficult to see ho w a practice could possibly modify the provisions of the Act. There is not even a rule on this subject made by the State Govt. under the provisions of Section 17 of the Act which authorises the Govt. to "make rules to give effect to the purposes of this Act." There are rules on other matters but not on such a matter.8. Mr. B. Sen relied on a Division Bench decision of the Allahabad High Court in T. C. Pasricha &Anr. v. The State of U.P. where it was held:"It appears that the Commissioner had authorised the District Magistrate to receive revisions meant for him. By so authorising, the Commissioner was only indicating the place and, the manner of representation of the revisions. Since the Rent Control Act d id not either by itself or rules framed under it lay down the precise procedure in regard to the presentation of the revision, the Commissioner who was the authority entitled to entertain and decide the revisions was within his rights to prescribe the procedure in respect of representation of the revisions. The direction given by the Commissioner in 1946 with regard to the presentation of revision was valid and enforceable".9. In Pasrichs ca se (supra), the Single Judge decision in Seth Bal Gopal Das v. State of U.P. on the case now before us, was noticed by the Division Bench and distinguished on the ground that there was no evidence here to prove that there was any such practice. Both Pasrichas case (supra) and the case now before us come from the Dehradun District. We think it is difficult to reconcile the Division Bench decision in Pasrichas case, decided on 5th April, 1973, with the summary rejection of the Special Appeal No. 180 of 1973 on 8th August, 1973, which is under appeal before us, although we find that one of the learned Judges is common to both the Division Benches.We prefer the reasoning of the learned Single Judge in Seth Bal Gopal Das v. St ate of U.P. (supra) to the reasoning of the Division Bench in Pasrichas case (supra). A wrong practice cannot possibly modify what naturally and logically follows from the language in Section 3(2) of the Act. This provision says that the party aggrieved must "apply to the Commissioner to revise the order". The natural inference is that the party must apply to the Commissioner directly and not through some other authority or official.10. It is true that Section 3(2) does not prescribe the manner and place of presentation of applications. But, unless there is some rule made to confer authority, upon the District Magistrate or the Additional District Magistrate concerned or his office, to act as the agent of the Commissioner, or a clear and specific authorisation by the Commissioner is proved, we fail to see how filing a revision application before the Additional District Magistrate can be deemed to amount to making the application to the Commissioner.11. In Pasrichas case (supra), the Division Bench had gone to the extent of holding that some communication made by the Commissioner in 1946 to the District Magistrate of Dehradun, even a copy of which was not placed before the Court, could be shown by means of a n affidavit of a party, to have been both established and to be enough to confer an authority on an Additional District Magistrate of Dehradun to receive applications on behalf of the Commissioner under the provisions of Section 3(2) of the A ct which were introduced after 1946 according to the statement of facts in Pasrichas case (supra) itself. Primafacie, an authorisation cannot relate to a power or right conferred by a provision which could not be present to the mind of the Commissioner at all at the time when he is supposed to have made some communication to the District Magistrate as the provision for a revision in such a case did not even exist then. We, therefore, think that the reasoning of the Division Bench in Pasrichas case (supra) is unacceptable. The alleged practice cannot be held to have been even established. And, in any event, such a practice was not enough to confer authority to receive petitions on behalf of the Commissioner. For that purpose, proof of at least specific authorisation by the Commissioner, after the introduction of the new provision, was required.The result is that we are unable to find any merit in the case of the appellant who has been able to hold up proceedings for his eviction long enough in respect of accommodation which, on the allegations made on behalf of the landlord (this term includes the "land-lady"), has been required to meet the landlords dire personal needs since at least 1969. We hope that the trial of the suit in such a case will not be delayed now.12. | 0[ds]We think it is difficult to reconcile the Division Bench decision in Pasrichas case, decided on 5th April, 1973, with the summary rejection of the Special Appeal No. 180 of 1973 on 8th August, 1973, which is under appeal before us, although we find that one of the learned Judges is common to both the Division Benches.We prefer the reasoning of the learned Single Judge in Seth Bal Gopal Das v. St ate of U.P. (supra) to the reasoning of the Division Bench in Pasrichas case (supra). A wrong practice cannot possibly modify what naturally and logically follows from the language in Section 3(2) of the Act. This provision says that the party aggrieved must "apply to the Commissioner to revise the order". The natural inference is that the party must apply to the Commissioner directly and not through some other authority oris true that Section 3(2) does not prescribe the manner and place of presentation of applications. But, unless there is some rule made to confer authority, upon the District Magistrate or the Additional District Magistrate concerned or his office, to act as the agent of the Commissioner, or a clear and specific authorisation by the Commissioner is proved, we fail to see how filing a revision application before the Additional District Magistrate can be deemed to amount to making the application to thetherefore, think that the reasoning of the Division Bench in Pasrichas case (supra) is unacceptable. The alleged practice cannot be held to have been even established. And, in any event, such a practice was not enough to confer authority to receive petitions on behalf of the Commissioner. For that purpose, proof of at least specific authorisation by the Commissioner, after the introduction of the new provision, was required.The result is that we are unable to find any merit in the case of the appellant who has been able to hold up proceedings for his eviction long enough in respect of accommodation which, on the allegations made on behalf of the landlord (this term includes the "land-lady"), has been required to meet the landlords dire personal needs since at least 1969. We hope that the trial of the suit in such a case will not be delayed now. | 0 | 1,700 | 425 | ### 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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of the Alla habad High Court had rejected the tenants Special Appeal summarily. This Court, however, granted special leave to appeal under Article 136 of the Constitution on 20th July, 1975. We need not express any opinion on the correctness of the second proposition here if we agree with the High Courts view on the first point because, in that case, the tenants application would be time barred even if the time spent in obtaining the copy was excluded.7. The only contention, put forward by Mr. B. Sen on behalf of the tenani-appellant, on the first point, is that there is a practice in Dehradun, acting on some instruction of the Commissioner, Meerut Division, to receive revision applications to the Commissioner through an Additional District Magistrate of Dehradun, who has, therefore, the Commissioners authority to receive these applications. It was urged that the filing of the Revision application before an Additional District Magistrate should be deemed, in these circumstances, to be sufficient compliance with the requirements of Section 3(2) of the Act which provides, as it clear from a bare look at it, that the revision application lies before the Commissioner.It is difficult to see ho w a practice could possibly modify the provisions of the Act. There is not even a rule on this subject made by the State Govt. under the provisions of Section 17 of the Act which authorises the Govt. to "make rules to give effect to the purposes of this Act." There are rules on other matters but not on such a matter.8. Mr. B. Sen relied on a Division Bench decision of the Allahabad High Court in T. C. Pasricha &Anr. v. The State of U.P. where it was held:"It appears that the Commissioner had authorised the District Magistrate to receive revisions meant for him. By so authorising, the Commissioner was only indicating the place and, the manner of representation of the revisions. Since the Rent Control Act d id not either by itself or rules framed under it lay down the precise procedure in regard to the presentation of the revision, the Commissioner who was the authority entitled to entertain and decide the revisions was within his rights to prescribe the procedure in respect of representation of the revisions. The direction given by the Commissioner in 1946 with regard to the presentation of revision was valid and enforceable".9. In Pasrichs ca se (supra), the Single Judge decision in Seth Bal Gopal Das v. State of U.P. on the case now before us, was noticed by the Division Bench and distinguished on the ground that there was no evidence here to prove that there was any such practice. Both Pasrichas case (supra) and the case now before us come from the Dehradun District. We think it is difficult to reconcile the Division Bench decision in Pasrichas case, decided on 5th April, 1973, with the summary rejection of the Special Appeal No. 180 of 1973 on 8th August, 1973, which is under appeal before us, although we find that one of the learned Judges is common to both the Division Benches.We prefer the reasoning of the learned Single Judge in Seth Bal Gopal Das v. St ate of U.P. (supra) to the reasoning of the Division Bench in Pasrichas case (supra). A wrong practice cannot possibly modify what naturally and logically follows from the language in Section 3(2) of the Act. This provision says that the party aggrieved must "apply to the Commissioner to revise the order". The natural inference is that the party must apply to the Commissioner directly and not through some other authority or official.10. It is true that Section 3(2) does not prescribe the manner and place of presentation of applications. But, unless there is some rule made to confer authority, upon the District Magistrate or the Additional District Magistrate concerned or his office, to act as the agent of the Commissioner, or a clear and specific authorisation by the Commissioner is proved, we fail to see how filing a revision application before the Additional District Magistrate can be deemed to amount to making the application to the Commissioner.11. In Pasrichas case (supra), the Division Bench had gone to the extent of holding that some communication made by the Commissioner in 1946 to the District Magistrate of Dehradun, even a copy of which was not placed before the Court, could be shown by means of a n affidavit of a party, to have been both established and to be enough to confer an authority on an Additional District Magistrate of Dehradun to receive applications on behalf of the Commissioner under the provisions of Section 3(2) of the A ct which were introduced after 1946 according to the statement of facts in Pasrichas case (supra) itself. Primafacie, an authorisation cannot relate to a power or right conferred by a provision which could not be present to the mind of the Commissioner at all at the time when he is supposed to have made some communication to the District Magistrate as the provision for a revision in such a case did not even exist then. We, therefore, think that the reasoning of the Division Bench in Pasrichas case (supra) is unacceptable. The alleged practice cannot be held to have been even established. And, in any event, such a practice was not enough to confer authority to receive petitions on behalf of the Commissioner. For that purpose, proof of at least specific authorisation by the Commissioner, after the introduction of the new provision, was required.The result is that we are unable to find any merit in the case of the appellant who has been able to hold up proceedings for his eviction long enough in respect of accommodation which, on the allegations made on behalf of the landlord (this term includes the "land-lady"), has been required to meet the landlords dire personal needs since at least 1969. We hope that the trial of the suit in such a case will not be delayed now.12.
### Response:
0
### Explanation:
We think it is difficult to reconcile the Division Bench decision in Pasrichas case, decided on 5th April, 1973, with the summary rejection of the Special Appeal No. 180 of 1973 on 8th August, 1973, which is under appeal before us, although we find that one of the learned Judges is common to both the Division Benches.We prefer the reasoning of the learned Single Judge in Seth Bal Gopal Das v. St ate of U.P. (supra) to the reasoning of the Division Bench in Pasrichas case (supra). A wrong practice cannot possibly modify what naturally and logically follows from the language in Section 3(2) of the Act. This provision says that the party aggrieved must "apply to the Commissioner to revise the order". The natural inference is that the party must apply to the Commissioner directly and not through some other authority oris true that Section 3(2) does not prescribe the manner and place of presentation of applications. But, unless there is some rule made to confer authority, upon the District Magistrate or the Additional District Magistrate concerned or his office, to act as the agent of the Commissioner, or a clear and specific authorisation by the Commissioner is proved, we fail to see how filing a revision application before the Additional District Magistrate can be deemed to amount to making the application to thetherefore, think that the reasoning of the Division Bench in Pasrichas case (supra) is unacceptable. The alleged practice cannot be held to have been even established. And, in any event, such a practice was not enough to confer authority to receive petitions on behalf of the Commissioner. For that purpose, proof of at least specific authorisation by the Commissioner, after the introduction of the new provision, was required.The result is that we are unable to find any merit in the case of the appellant who has been able to hold up proceedings for his eviction long enough in respect of accommodation which, on the allegations made on behalf of the landlord (this term includes the "land-lady"), has been required to meet the landlords dire personal needs since at least 1969. We hope that the trial of the suit in such a case will not be delayed now.
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Tata Engineering and Locomotive Company Limited Vs. Union of India | 1. Leave granted.2. Union of India has come up in appeal against the judgment and order of the Division Bench of the Patna High Court directing the Assistant Collector of Central Excise, Jamshedpur, to pass without delay appropriate final order on all the price lists already submitted by the Company. The Court also held that the price at which the Company sold the vehicles at the factory gate at Jamshedpur should be the normal price for the purpose of computation of the value of the excisable goods. The Court also held that the Assistant Collector of Central Excise could only call for relevant documents for the purpose of assessment of the value of the excisable goods. In the facts of this case, price lists of Regional Sales Offices of Tata Engineering and Locomotive Co. (TELCO) could not be said to be relevant for passing final orders on the price lists submitted by the Company 3. The appellant has contended that it was necessary for the Excise Officer to examine the price at the Regional Sales Offices because two types of prices were being charged at the factory gate of the Company at Jamshedpur. It has been contended in reply that the bulk of the sales made by the Company was to the dealers; a small portion of sales was effected to sub-dealers directly for which full particulars were furnished. Moreover, this point was not raised before the High Court when the writ petition was heard4. In our view, this petition should not have been entertained by the High Court at all. The Assistant Collector is entitled to complete the assessment as he thinks fit in exercise of his judgment and according to his understanding of the law and facts. For this purpose, he can call for and examine whatever documents he considers relevant. If the Assistant Collector fails to follow any judgment of the High Court or this Court, the assessee had adequate statutory remedies by way of an appeal and revision against the assessment order. The Court should not try to control the mode and manner in which an assessment should be made. If the Assistant Collector is of the view that enquiries are necessary to be made as to the price at which trucks were sold at the Regional Sales Offices, the Court cannot stop him from making such enquiries5. Mr Sorabjee, appearing on behalf of the respondents, has complained that the assessments are going on endlessly and without due regard to an earlier judgment of the Patna High Court in respect of an earlier assessment year on the very same issues. Whether the controversy raised in this case is covered by an earlier judgment of the High Court is a matter to be decided by the Assistant Collector. He will have to decide all questions of fact and law. He has to make whatever enquiries he thinks necessary for determination of the value of excisable goods. The High Court in exercise of its jurisdiction cannot give guidance to the Assistant Collector about the manner and mode in which the assessment should be made | 1[ds]4. In our view, this petition should not have been entertained by the High Court at all. The Assistant Collector is entitled to complete the assessment as he thinks fit in exercise of his judgment and according to his understanding of the law and facts. For this purpose, he can call for and examine whatever documents he considers relevant. If the Assistant Collector fails to follow any judgment of the High Court or this Court, the assessee had adequate statutory remedies by way of an appeal and revision against the assessment order. The Court should not try to control the mode and manner in which an assessment should be made. If the Assistant Collector is of the view that enquiries are necessary to be made as to the price at which trucks were sold at the Regional Sales Offices, the Court cannot stop him from making such enquiries | 1 | 550 | 163 | ### 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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1. Leave granted.2. Union of India has come up in appeal against the judgment and order of the Division Bench of the Patna High Court directing the Assistant Collector of Central Excise, Jamshedpur, to pass without delay appropriate final order on all the price lists already submitted by the Company. The Court also held that the price at which the Company sold the vehicles at the factory gate at Jamshedpur should be the normal price for the purpose of computation of the value of the excisable goods. The Court also held that the Assistant Collector of Central Excise could only call for relevant documents for the purpose of assessment of the value of the excisable goods. In the facts of this case, price lists of Regional Sales Offices of Tata Engineering and Locomotive Co. (TELCO) could not be said to be relevant for passing final orders on the price lists submitted by the Company 3. The appellant has contended that it was necessary for the Excise Officer to examine the price at the Regional Sales Offices because two types of prices were being charged at the factory gate of the Company at Jamshedpur. It has been contended in reply that the bulk of the sales made by the Company was to the dealers; a small portion of sales was effected to sub-dealers directly for which full particulars were furnished. Moreover, this point was not raised before the High Court when the writ petition was heard4. In our view, this petition should not have been entertained by the High Court at all. The Assistant Collector is entitled to complete the assessment as he thinks fit in exercise of his judgment and according to his understanding of the law and facts. For this purpose, he can call for and examine whatever documents he considers relevant. If the Assistant Collector fails to follow any judgment of the High Court or this Court, the assessee had adequate statutory remedies by way of an appeal and revision against the assessment order. The Court should not try to control the mode and manner in which an assessment should be made. If the Assistant Collector is of the view that enquiries are necessary to be made as to the price at which trucks were sold at the Regional Sales Offices, the Court cannot stop him from making such enquiries5. Mr Sorabjee, appearing on behalf of the respondents, has complained that the assessments are going on endlessly and without due regard to an earlier judgment of the Patna High Court in respect of an earlier assessment year on the very same issues. Whether the controversy raised in this case is covered by an earlier judgment of the High Court is a matter to be decided by the Assistant Collector. He will have to decide all questions of fact and law. He has to make whatever enquiries he thinks necessary for determination of the value of excisable goods. The High Court in exercise of its jurisdiction cannot give guidance to the Assistant Collector about the manner and mode in which the assessment should be made
### Response:
1
### Explanation:
4. In our view, this petition should not have been entertained by the High Court at all. The Assistant Collector is entitled to complete the assessment as he thinks fit in exercise of his judgment and according to his understanding of the law and facts. For this purpose, he can call for and examine whatever documents he considers relevant. If the Assistant Collector fails to follow any judgment of the High Court or this Court, the assessee had adequate statutory remedies by way of an appeal and revision against the assessment order. The Court should not try to control the mode and manner in which an assessment should be made. If the Assistant Collector is of the view that enquiries are necessary to be made as to the price at which trucks were sold at the Regional Sales Offices, the Court cannot stop him from making such enquiries
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VARUN PAHWA Vs. RENU CHAUDHARY | of mistake of the counsel, may be on account of lack of understanding as to how a Private Limited Company is to sue in a suit for recovery of the amount advanced. 9. The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. In State of Maharashtra vs. Hindustan Construction Company Limited (2010) 4 SCC 518 , this Court held as under:- 17. Insofar as the Code of Civil Procedure, 1908 (for short CPC) is concerned, Order 6 Rule 17 provides for amendment of pleadings. It says that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. 18. The matters relating to amendment of pleadings have come up for consideration before the courts from time to time. As far back as in 1884 in Clarapede & Co. v. Commercial Union Assn. (1883) 32 WR 262 - an appeal that came up before the Court of Appeal, Brett M.R. stated: ... The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment (CA) should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made….19. In Charan Das v. Amir Khan (1919-20) 47 IA 255 the Privy Council exposited the legal position that although power of a Court to amend the plaint in a suit should not as a rule be exercised where the effect is to take away from the defendant a legal right which has accrued to him by lapse of time, yet there are cases in which that consideration is outweighed by the special circumstances of the case. *** *** *** 22. In Jai Jai Ram Manohar Lal (1969) 1 SCC 869 this Court was concerned with a matter wherein amendment in the plaint was refused on the ground that the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation. It was held: (SCC p.871, para 5) 5. …. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.This Court further stated (Jai Jai Ram Manohar Lal case, SCC p.873, para 7): 7. ...The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. 10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another (2006) 1 SCC 75 , this Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:- 17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant. 11. Thus, we find that it was an inadvertent mistake in the plaint which trial court should have allowed to be corrected so as to permit the Private Limited Company to sue as Plaintiff as the original Plaintiff has filed suit as Director of the said Private Limited Company. Therefore, the order declining to correct the memo of parties cannot be said to be justified in law. | 1[ds]8. The plaint is not properly drafted in as much as in the memo of parties, the Plaintiff is described as Varun Pahwa through Director of Siddharth Garments Pvt. Ltd. though it should have been Siddharth Garments Pvt. Ltd. through its Director Varun Pahwa. Thus, it is a case of mistake of the counsel, may be on account of lack of understanding as to how a Private Limited Company is to sue in a suit for recovery of the amount advanced9. The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another (2006) 1 SCC 75 , this Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:-17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant11. Thus, we find that it was an inadvertent mistake in the plaint which trial court should have allowed to be corrected so as to permit the Private Limited Company to sue as Plaintiff as the original Plaintiff has filed suit as Director of the said Private Limited Company. Therefore, the order declining to correct the memo of parties cannot be said to be justified in law. | 1 | 1,749 | 579 | ### Instruction:
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of mistake of the counsel, may be on account of lack of understanding as to how a Private Limited Company is to sue in a suit for recovery of the amount advanced. 9. The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. In State of Maharashtra vs. Hindustan Construction Company Limited (2010) 4 SCC 518 , this Court held as under:- 17. Insofar as the Code of Civil Procedure, 1908 (for short CPC) is concerned, Order 6 Rule 17 provides for amendment of pleadings. It says that the court may at any stage of the proceedings allow either party to alter or amend his pleadings in such manner and on such terms as may be just, and all such amendments shall be made as may be necessary for the purpose of determining the real questions in controversy between the parties. 18. The matters relating to amendment of pleadings have come up for consideration before the courts from time to time. As far back as in 1884 in Clarapede & Co. v. Commercial Union Assn. (1883) 32 WR 262 - an appeal that came up before the Court of Appeal, Brett M.R. stated: ... The rule of conduct of the court in such a case is that, however negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment (CA) should be allowed if it can be made without injustice to the other side. There is no injustice if the other side can be compensated by costs; but, if the amendment will put them into such a position that they must be injured, it ought not to be made….19. In Charan Das v. Amir Khan (1919-20) 47 IA 255 the Privy Council exposited the legal position that although power of a Court to amend the plaint in a suit should not as a rule be exercised where the effect is to take away from the defendant a legal right which has accrued to him by lapse of time, yet there are cases in which that consideration is outweighed by the special circumstances of the case. *** *** *** 22. In Jai Jai Ram Manohar Lal (1969) 1 SCC 869 this Court was concerned with a matter wherein amendment in the plaint was refused on the ground that the amendment could not take effect retrospectively and on the date of the amendment the action was barred by the law of limitation. It was held: (SCC p.871, para 5) 5. …. Rules of procedure are intended to be a handmaid to the administration of justice. A party cannot be refused just relief merely because of some mistake, negligence, inadvertence or even infraction of the Rules of procedure. The court always gives leave to amend the pleading of a party, unless it is satisfied that the party applying was acting mala fide, or that by his blunder, he had caused injury to his opponent which may not be compensated for by an order of costs. However negligent or careless may have been the first omission, and, however late the proposed amendment, the amendment may be allowed if it can be made without injustice to the other side.This Court further stated (Jai Jai Ram Manohar Lal case, SCC p.873, para 7): 7. ...The power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations. 10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another (2006) 1 SCC 75 , this Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:- 17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant. 11. Thus, we find that it was an inadvertent mistake in the plaint which trial court should have allowed to be corrected so as to permit the Private Limited Company to sue as Plaintiff as the original Plaintiff has filed suit as Director of the said Private Limited Company. Therefore, the order declining to correct the memo of parties cannot be said to be justified in law.
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8. The plaint is not properly drafted in as much as in the memo of parties, the Plaintiff is described as Varun Pahwa through Director of Siddharth Garments Pvt. Ltd. though it should have been Siddharth Garments Pvt. Ltd. through its Director Varun Pahwa. Thus, it is a case of mistake of the counsel, may be on account of lack of understanding as to how a Private Limited Company is to sue in a suit for recovery of the amount advanced9. The memo of parties is thus clearly inadvertent mistake on the part of the counsel who drafted the plaint. Such inadvertent mistake cannot be refused to be corrected when the mistake is apparent from the reading of the plaint. The Rules of Procedure are handmaid of justice and cannot defeat the substantive rights of the parties. It is well settled that amendment in the pleadings cannot be refused merely because of some mistake, negligence, inadvertence or even infraction of the Rules of Procedure. The Court always gives leave to amend the pleadings even if a party is negligent or careless as the power to grant amendment of the pleadings is intended to serve the ends of justice and is not governed by any such narrow or technical limitations10. In Uday Shankar Triyar v. Ram Kalewar Prasad Singh and Another (2006) 1 SCC 75 , this Court held that procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure should never be made a tool to deny justice or perpetuate injustice by any oppressive or punitive use. The Court held as under:-17. Non-compliance with any procedural requirement relating to a pleading, memorandum of appeal or application or petition for relief should not entail automatic dismissal or rejection, unless the relevant statute or rule so mandates. Procedural defects and irregularities which are curable should not be allowed to defeat substantive rights or to cause injustice. Procedure, a handmaiden to justice, should never be made a tool to deny justice or perpetuate injustice, by any oppressive or punitive use. The well-recognised exceptions to this principle are: (i) where the statute prescribing the procedure, also prescribes specifically the consequence of non- compliance; (ii) where the procedural defect is not rectified, even after it is pointed out and due opportunity is given for rectifying it; (iii) where the non-compliance or violation is proved to be deliberate or mischievous; (iv) where the rectification of defect would affect the case on merits or will affect the jurisdiction of the court; (v) in case of memorandum of appeal, there is complete absence of authority and the appeal is presented without the knowledge, consent and authority of the appellant11. Thus, we find that it was an inadvertent mistake in the plaint which trial court should have allowed to be corrected so as to permit the Private Limited Company to sue as Plaintiff as the original Plaintiff has filed suit as Director of the said Private Limited Company. Therefore, the order declining to correct the memo of parties cannot be said to be justified in law.
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Madhya Pradesh Hasta Shilpa Vikas Nigam Ltd Vs. Devendra Kumar Jain | order of termination of service of respondents mainly on two grounds. Firstly, the High Court took the view that the respondents services were terminated without giving them an opportunity of hearing in consonance with the rules of natural justice and, therefore, the order of termination of service was contrary to law and violative of Article 14 of the Constitution and, secondly, Government approval was not necessary for the appointment as contended by the appellant and that in any case no material was placed to show that the appointment was contrary to the Government instructions. In our considered opinion the High Court fell in serious error in taking in taking the aforesaid view and, therefore, the order of the High Court could not be sustained in law. 4. Admittedly the appointment of the respondents was made purely on temporary basis which is evident from the order of their appointment. The first order dated 6-7-89 Annexure-D by which the respondents No. 1 to 3 were appointed reads as follows : Bhopal : 6.7.89 ORDER "The following persons are appointed to the post of Junior Manager in the Pay Scale of 1290-30-1560-40-2040 from the date of taking over, till further orders temporarily and are posted to the Head-quarters :-1. Shri D. K. Jain2. Shri Pramod Mishra3. Shri Dilip Kumar Goyal2. Employee has to submit Medical Fitness Certificate from Civil Surgeon of the District3. Dearness Allowance and other facilities according to the rules of the Corporation shall be payable.Above appointment are purely temporary and are liable to termination without notice or assigning any reason.By order of Managing DirectorGENERAL MANAGERHastashilp Vikas Nigam Ltd., Bhopal" 6.7.89 The subsequent two orders both dated 8-6-89 with regard to the appointment of respondents No. 4 and 5 are identical one of which is reproduced herein below :- 6.7.89 ORDER "Shri Mohammad Hussain is appointed to the post of Junior Manager in the Pay Scale of Rs. 1290-30-1560-40-2040 from the date of taking over, temporarily and posted at Headquarters.Employees has to obtain Medical Fitness Certificate from Civil Surgeon and submit to office.Dearness Allowance and other facilities according to the rules of the Corporation shall be payable.Above appointment is purely temporary and is liable to termination at any time without notice or assigning a reason.GENERAL MANAGER" * 5. A plain reading of these two orders will go to show that the appointments were made purely on temporary basis and their services were liable to be terminated at any time without notice or assigning any reason. In the case of appointment on temporary basis a servant who is so appointed does not acquire any substantive right to the post, even though the post itself may be permanent and it is an implied term of such appointment that it may be terminable at any time and without notice. A temporary Government servant does not become a permanent Government servant unless he acquires that capacity by force of any rule or he is declared or appointed as a permanent servant. In the present case there is no rule under which the respondents may be deemed to have become permanent by force of such rule nor they were so declared by any subsequent order of the appellant-company to have acquired that status. On the contrary and the respondents all along continued to be temporary and according to the terms of the order of appointment their services could be terminated at any time without any notice or assigning any reasons. In such a case it is not necessary to follow the formalities contemplated by Article 311 of the Constitution. In these facts and circumstances the High Court was not right in holding that the respondents were entitled for being heard before passing the said order of termination of their services and that the order of termination was bad in law on that account.6. As regards the second ground the learned counsel appearing for the appellant contended that the appellant corporation had prepared a project in January 1980 (a copy of which is filed as Annexure-A in this appeal) for the development of handicrafts through Exhibitions and proposed that five officers of junior manages rank and some sales girls/sales-men be appointed in that connection. But when the Government came to know about the said project it disapproved the same by order dated 1.4.89 (Annexure-B) and directed that no appointments shall be made to the said post without obtaining prior approval of the State Government. The learned counsel for the appellant, therefore, contended that the appointment of the respondents was made against the directions of the State Government and while quashing the order of the termination the High Court did not take into consideration the said directions of the State Government. 7. It may be pointed out here that the appellant-Corporation is a Government company fully financed by the State Government would be very much concerned to see that any project which is not economically beneficial for the corporation and which is likely to result in any loss should not be given effect to. The Government, therefore, would be justified in issuing instructions that no appointments of any staff in connection with the said project will be made without the approval of the Board of Directors of M.P. Hasta Shilpa Vikas Nigam Limited and passed the order to that effect which has been field as Annexure-B in this appeal. But is appears that the High Court ignored the said order of the State Government while observing that no material in support of the contention that the Government has issued instructions not to make appointment was produced by the appellant.8. It is noteworthy that Shri K. P. Thakur, the then Managing Director himself was retiring on 31-7-89 and in hot haste he issued the orders of appointment of the respondents on 6-7-89 and 8-6-89 inspite of the instructions of the State Government to the contrary. In these facts and circumstances the impugned order passed by the High Court question the termination of service of the respondents cannot be sustained. | 1[ds]In our considered opinion the High Court fell in serious error in taking in taking the aforesaid view and, therefore, the order of the High Court could not be sustained inis appears that the High Court ignored the said order of the State Government while observing that no material in support of the contention that the Government has issued instructions not to make appointment was produced by the appellant.8. It is noteworthy that Shri K. P. Thakur, the then Managing Director himself was retiring on 31-7-89 and in hot haste he issued the orders of appointment of the respondents on 6-7-89 and 8-6-89 inspite of the instructions of the State Government to the contrary. In these facts and circumstances the impugned order passed by the High Court question the termination of service of the respondents cannot be sustained. | 1 | 1,358 | 149 | ### Instruction:
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order of termination of service of respondents mainly on two grounds. Firstly, the High Court took the view that the respondents services were terminated without giving them an opportunity of hearing in consonance with the rules of natural justice and, therefore, the order of termination of service was contrary to law and violative of Article 14 of the Constitution and, secondly, Government approval was not necessary for the appointment as contended by the appellant and that in any case no material was placed to show that the appointment was contrary to the Government instructions. In our considered opinion the High Court fell in serious error in taking in taking the aforesaid view and, therefore, the order of the High Court could not be sustained in law. 4. Admittedly the appointment of the respondents was made purely on temporary basis which is evident from the order of their appointment. The first order dated 6-7-89 Annexure-D by which the respondents No. 1 to 3 were appointed reads as follows : Bhopal : 6.7.89 ORDER "The following persons are appointed to the post of Junior Manager in the Pay Scale of 1290-30-1560-40-2040 from the date of taking over, till further orders temporarily and are posted to the Head-quarters :-1. Shri D. K. Jain2. Shri Pramod Mishra3. Shri Dilip Kumar Goyal2. Employee has to submit Medical Fitness Certificate from Civil Surgeon of the District3. Dearness Allowance and other facilities according to the rules of the Corporation shall be payable.Above appointment are purely temporary and are liable to termination without notice or assigning any reason.By order of Managing DirectorGENERAL MANAGERHastashilp Vikas Nigam Ltd., Bhopal" 6.7.89 The subsequent two orders both dated 8-6-89 with regard to the appointment of respondents No. 4 and 5 are identical one of which is reproduced herein below :- 6.7.89 ORDER "Shri Mohammad Hussain is appointed to the post of Junior Manager in the Pay Scale of Rs. 1290-30-1560-40-2040 from the date of taking over, temporarily and posted at Headquarters.Employees has to obtain Medical Fitness Certificate from Civil Surgeon and submit to office.Dearness Allowance and other facilities according to the rules of the Corporation shall be payable.Above appointment is purely temporary and is liable to termination at any time without notice or assigning a reason.GENERAL MANAGER" * 5. A plain reading of these two orders will go to show that the appointments were made purely on temporary basis and their services were liable to be terminated at any time without notice or assigning any reason. In the case of appointment on temporary basis a servant who is so appointed does not acquire any substantive right to the post, even though the post itself may be permanent and it is an implied term of such appointment that it may be terminable at any time and without notice. A temporary Government servant does not become a permanent Government servant unless he acquires that capacity by force of any rule or he is declared or appointed as a permanent servant. In the present case there is no rule under which the respondents may be deemed to have become permanent by force of such rule nor they were so declared by any subsequent order of the appellant-company to have acquired that status. On the contrary and the respondents all along continued to be temporary and according to the terms of the order of appointment their services could be terminated at any time without any notice or assigning any reasons. In such a case it is not necessary to follow the formalities contemplated by Article 311 of the Constitution. In these facts and circumstances the High Court was not right in holding that the respondents were entitled for being heard before passing the said order of termination of their services and that the order of termination was bad in law on that account.6. As regards the second ground the learned counsel appearing for the appellant contended that the appellant corporation had prepared a project in January 1980 (a copy of which is filed as Annexure-A in this appeal) for the development of handicrafts through Exhibitions and proposed that five officers of junior manages rank and some sales girls/sales-men be appointed in that connection. But when the Government came to know about the said project it disapproved the same by order dated 1.4.89 (Annexure-B) and directed that no appointments shall be made to the said post without obtaining prior approval of the State Government. The learned counsel for the appellant, therefore, contended that the appointment of the respondents was made against the directions of the State Government and while quashing the order of the termination the High Court did not take into consideration the said directions of the State Government. 7. It may be pointed out here that the appellant-Corporation is a Government company fully financed by the State Government would be very much concerned to see that any project which is not economically beneficial for the corporation and which is likely to result in any loss should not be given effect to. The Government, therefore, would be justified in issuing instructions that no appointments of any staff in connection with the said project will be made without the approval of the Board of Directors of M.P. Hasta Shilpa Vikas Nigam Limited and passed the order to that effect which has been field as Annexure-B in this appeal. But is appears that the High Court ignored the said order of the State Government while observing that no material in support of the contention that the Government has issued instructions not to make appointment was produced by the appellant.8. It is noteworthy that Shri K. P. Thakur, the then Managing Director himself was retiring on 31-7-89 and in hot haste he issued the orders of appointment of the respondents on 6-7-89 and 8-6-89 inspite of the instructions of the State Government to the contrary. In these facts and circumstances the impugned order passed by the High Court question the termination of service of the respondents cannot be sustained.
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### Explanation:
In our considered opinion the High Court fell in serious error in taking in taking the aforesaid view and, therefore, the order of the High Court could not be sustained inis appears that the High Court ignored the said order of the State Government while observing that no material in support of the contention that the Government has issued instructions not to make appointment was produced by the appellant.8. It is noteworthy that Shri K. P. Thakur, the then Managing Director himself was retiring on 31-7-89 and in hot haste he issued the orders of appointment of the respondents on 6-7-89 and 8-6-89 inspite of the instructions of the State Government to the contrary. In these facts and circumstances the impugned order passed by the High Court question the termination of service of the respondents cannot be sustained.
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State of Rajasthan Vs. Ratan Lal | Similar definition of the word "person" has been given in Section 3(42) of the General Clauses Act. Therefore, these definitions render no assistance for resolving the controversy in hand.8 One of the basic principles of interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity (See Craies on Statute Law, Seventh Edn. page 83-85). In the well known treatise - Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary (See the Chapter - The Rule of Literal Construction - page 78, Ninth Edn.). This Court has also followed this principle right from the beginning. In Jugalkishore Saraf v. M/s Raw Cotton Co. Ltd. AIR 1955 SC 376 , S.R. Das, J. said: (SCR p.1374) "The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation." A catena of subsequent decisions have followed the same line. It, therefore, becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person". 10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside ones home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.27. Coming to the merits of the appeal, the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal." 28. | 1[ds]The position relating to applicability of Section 50 of the Act when the search is of a bag, brief case or an article it was considered by a three Judge Bench of this Court in (2005) 4 SCC 350 (State of H.P. vs. Pawan Kumar and State of Rajastha vs. Bhanwar Lal) in para 7, 8 10, 11 and 27 in Pawan Kumars case it was held asThe word "person" has not been defined in the Act. Section 2(xxix) of the Act says that the words and expressions used herein and not defined but defined in the Code of Criminal Procedure have the meanings respectively assigned to them in that Code. The Code of Criminal Procedure, however, does not define the word "person". Section 2(y) of the Code says that the words and expressions used therein and not defined but defined in the Indian Penal Code have the meanings respectively assigned to them in that Code. Section 11 of the Indian Penal Code says that the word "person" includes any Company or Association or body of persons whether incorporated or not. Similar definition of the word "person" has been given in Section 3(42) of the General Clauses Act. Therefore, these definitions render no assistance for resolving the controversy in hand.8 One of the basic principles of interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity (See Craies on Statute Law, Seventh Edn. pageIn the well known treatisePrinciples of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary (See the ChapterThe Rule of Literal Constructionpage 78, Ninth Edn.). This Court has also followed this principle right from the beginning. In Jugalkishore Saraf v. M/s Raw Cotton Co. Ltd. AIR 1955 SC 376 , S.R. Das, J. said: (SCRcardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literalcatena of subsequent decisions have followed the same line. It, therefore, becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person".We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be"the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside ones home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.27. Coming to the merits of the appeal, the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal." | 1 | 1,546 | 1,320 | ### 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:
Similar definition of the word "person" has been given in Section 3(42) of the General Clauses Act. Therefore, these definitions render no assistance for resolving the controversy in hand.8 One of the basic principles of interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity (See Craies on Statute Law, Seventh Edn. page 83-85). In the well known treatise - Principles of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary (See the Chapter - The Rule of Literal Construction - page 78, Ninth Edn.). This Court has also followed this principle right from the beginning. In Jugalkishore Saraf v. M/s Raw Cotton Co. Ltd. AIR 1955 SC 376 , S.R. Das, J. said: (SCR p.1374) "The cardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literal interpretation." A catena of subsequent decisions have followed the same line. It, therefore, becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person". 10. We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be - "the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside ones home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.27. Coming to the merits of the appeal, the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal." 28.
### Response:
1
### Explanation:
Code says that the word "person" includes any Company or Association or body of persons whether incorporated or not. Similar definition of the word "person" has been given in Section 3(42) of the General Clauses Act. Therefore, these definitions render no assistance for resolving the controversy in hand.8 One of the basic principles of interpretation of Statutes is to construe them according to plain, literal and grammatical meaning of the words. If that is contrary to, or inconsistent with, any express intention or declared purpose of the Statute, or if it would involve any absurdity, repugnancy or inconsistency, the grammatical sense must then be modified, extended or abridged, so far as to avoid such an inconvenience, but no further. The onus of showing that the words do not mean what they say lies heavily on the party who alleges it. He must advance something which clearly shows that the grammatical construction would be repugnant to the intention of the Act or lead to some manifest absurdity (See Craies on Statute Law, Seventh Edn. pageIn the well known treatisePrinciples of Statutory Interpretation by Justice G.P. Singh, the learned author has enunciated the same principle that the words of the Statute are first understood in their natural, ordinary or popular sense and phrases and sentences are construed according to their grammatical meaning, unless that leads to some absurdity or unless there is something in the context or in the object of the Statute to suggest the contrary (See the ChapterThe Rule of Literal Constructionpage 78, Ninth Edn.). This Court has also followed this principle right from the beginning. In Jugalkishore Saraf v. M/s Raw Cotton Co. Ltd. AIR 1955 SC 376 , S.R. Das, J. said: (SCRcardinal rule of construction of statutes is to read the statute literally, that is, by giving to the words used by the legislature their ordinary, natural and grammatical meaning. If, however, such a reading leads to absurdity and the words are susceptible of another meaning the Court may adopt the same. But if no such alternative construction is possible, the Court must adopt the ordinary rule of literalcatena of subsequent decisions have followed the same line. It, therefore, becomes necessary to look to dictionaries to ascertain the correct meaning of the word "person".We are not concerned here with the wide definition of the word "person", which in the legal world includes corporations, associations or body of individuals as factually in these type of cases search of their premises can be done and not of their person. Having regard to the scheme of the Act and the context in which it has been used in the Section it naturally means a human being or a living individual unit and not an artificial person. The word has to be understood in a broad commonsense manner and, therefore, not a naked or nude body of a human being but the manner in which a normal human being will move about in a civilized society. Therefore, the most appropriate meaning of the word "person" appears to be"the body of a human being as presented to public view usually with its appropriate coverings and clothings". In a civilized society appropriate coverings and clothings are considered absolutely essential and no sane human being comes in the gaze of others without appropriate coverings and clothings. The appropriate coverings will include footwear also as normally it is considered an essential article to be worn while moving outside ones home. Such appropriate coverings or clothings or footwear, after being worn, move along with the human body without any appreciable or extra effort. Once worn, they would not normally get detached from the body of the human being unless some specific effort in that direction is made. For interpreting the provision, rare cases of some religious monks and sages, who, according to the tenets of their religious belief do not cover their body with clothings, are not to be taken notice of. Therefore, the word "person" would mean a human being with appropriate coverings and clothings and also footwear.A bag, briefcase or any such article or container, etc. can, under no circumstances, be treated as body of a human being. They are given a separate name and are identifiable as such. They cannot even remotely be treated to be part of the body of a human being. Depending upon the physical capacity of a person, he may carry any number of items like a bag, a briefcase, a suitcase, a tin box, a thaila, a jhola, a gathri, a holdall, a carton, etc. of varying size, dimension or weight. However, while carrying or moving along with them, some extra effort or energy would be required. They would have to be carried either by the hand or hung on the shoulder or back or placed on the head. In common parlance it would be said that a person is carrying a particular article, specifying the manner in which it was carried like hand, shoulder, back or head, etc. Therefore, it is not possible to include these articles within the ambit of the word "person" occurring in Section 50 of the Act.27. Coming to the merits of the appeal, the High Court allowed the appeal on the finding that the report of the Chemical Examiner had to be excluded and that there was non compliance of Section 50 of the Act. The learned Judges of this Court, who heard the appeal earlier, have recorded a unanimous opinion that the report of the Chemical Examiner was admissible in evidence and could not be excluded. In view of the discussion made earlier, Section 50 of the Act can have no application on the facts and circumstances of the present case as opium was allegedly recovered from the bag, which was being carried by the accused. The High Court did not examine the testimony of the witnesses and other evidence on merits. Accordingly, the matter has to be remitted back to the High Court for a fresh hearing of the appeal."
|
D.K. Sahni Vs. Managing Director, Manganese Ore India Ltd | B examinations and not if exempted from passing the same. Therefore, the recognition for equivalence proposed to be granted by the company could not ultimately be granted. The Tribunal rightly points out that `the equivalence which was good for the purpose of Institution of Engineers (India) was not one which was recognised by the Central Government and hence the appellant could not be said to be possessing a Diploma equivalent to a degree to answer the educational qualifications prescribed by the Rules. This approach of the Tribunal is, therefore, unassailable.11. We may now turn to office order No. 6(1) dated 22nd January, 1982 whereby the Board of Directors approved certain modifications in the Annexure attached to the Recruitment and Promotion Rules. These changes were made effective from 17th October, 1981. Column 8 of the modified entry reads as under :``Sr. Mining Engineer with (a) Degree in Mining of a recognised University/Institute or equivalent.(b) 1st Class Mine Managers Certificate of competency under Metalliferous Mines Regulations (UR).(c) 3 years service in the company in the scale of Rs. 1500-2000. Under the modified entry the eligibility criteria for direct recruits remains the same except for a slight change in the experience criterion, viz., the requirement of experience of 7 years in a responsible position in an underground mine has been dispensed with. The significant change, however brought about in column 8 is to state the educational/experience qualifications for promotion separately. The experience criteria for promotion under the modified entry is reduced to three years service in the company in a post carrying a scale of Rs. 1500-2000/-. Therefore, under the revised entry a Senior Mining Engineer possessing the educational qualification at (a) and (b) and experience of three years service in the company on a post carrying a scale of Rs. 1500-2000 became eligible for promotion to the post of Chief Mining Engineer. Now, if Rule 7(a) of the Recruitment and Promotion Rules is invoked a Senior Mining Engineer who does not possess the requisite educational qualification but possesses double the prescribed experience, i.e. experience of six years service in the company on a post carrying a pay scale of Rs. 1500-2000, would be eligible for promotion to the post of Chief Mining Engineer. The submission of Mr. Venugopal was that even if it is assumed that the appellant was not qualified to be promoted to the post of the Chief Mining Engineer on 19/21st April, 1980, he at any rate became eligible for promotion on the modification of the relevant entry in the Annexure extracted earlier with effect from 17th October, 1981 and even if his promotion is regularised or deemed to have been regularised by the company from the said date, he was entitled to be considered for further promotion in the cadre of Deputy General Manager and later General Manager (T) of the company. Mr. Ashok Desai for the company supported this line of reasoning and contended that as far as the company is concerned, it always treated the appellant as eligible for being promoted to the higher posts of Deputy General Manager and General Manager (T). There is considerable force in this submission. The Tribunals order does not deal with this aspect of the matter. We have agreed with the Tribunal that under the rule position as it existed at the date of the appellants promotion to the post of Chief Mining Engineer, i.e. on 19/21st April, 1980, the appellant was not eligible for appointment to the said post by promotion. However, on the change brought about in the relevant entry by the order of 22nd January, 1981 with effect from 17th October, 1981, the appellant became eligible for promotion and even if his placement in the cadre of Chief Mining Engineer is reckoned from that date he was clearly eligible for upward promotion. But, submitted Mr. Jain, once the Court holds that the initial entry of the candidate was in violation of the promotional criteria, his entry must be treated as void and unless the DPC reconsiders his case for promotion along with others his entry in the cadre cannot be regularised on a deeming fiction. He also submitted that no such case was put up before the High Court and, therefore, this Court should not permit it to be placed for the first time in proceedings under Article 136 of the Constitution. According to him the Article 136 jurisdiction must be exercised sparingly and in support he invited our attention the observations (extracted earlier) from this Courts decision in Ujagar Singhs case. We are not impressed by this approach. In the first place it must be remembered that the appellants promotion made under the order of 19th April, 1980 was sought to be undone only after his promotion to the higher post. Secondly there is no charm in directing the reversion of the appellant for a short period from 21st April, 1980 to 16th October, 1981 when we find that under the revised or modified criteria he was eligible for appointment as Chief Mining Engineer on 17th October, 1981. He was placed junior to others and even if he is considered as promoted with effect from 17th October, 1981 he would continue to rank junior. He was selected for the higher post on merit though he was junior to others. Therefore, it is not a case where he had received weightage because he was shown senior when the DPC selected him for the higher post. He has served on the promotion post of Deputy General Manager (T) since July, 1983. Would it not be harsh and shocking to revert him after so many years only on the ground that he must seek re-entry in the cadre of Chief Mining Engineers with effect from 17th October, 1981 when he acquired eligibility on the modification of the relevant entry in the annexure to the Rules. We think it would result in gross injustice to the appellant. We are, therefore, not impressed by the technical objection raised by Mr. Jain. | 1[ds]9. Realising this difficulty Mr. Venugopal fell back on Rule 7(c) which reads as underemployee shall ordinarily be promoted from a lower post to higher post unless he has served in the lower post for minimum period of three years. The appropriate Department Promotion Committee, may, however, in special cases and for reasons to be recorded in writing, reduce the period of three years mentionedour view this rule has no application. It lays down a rule of general application that an employee seeking promotion to the next higher grade must have served for atleast three years at the lower level unless the D.P.C. reduces the said period. This sub-rule has to be read in conjunction with sub-rule (a) of Rule 7. Read together they convey that ordinarily employees who have not served in the lower level for atleast three years will not be considered for promotion to the higher level unless the D.P.C. reduces the requirement. This rule applies to cases where no experience criterion is prescribed or the criterion prescribed is for less than three years but cannot apply to cases where the criterion prescribed is higher. Much less would it apply to cases covered by sub-rule (a) which deals with specific cases where the incumbent does not possess the prescribed qualifications. Where educational qualification is to be waived altogether, Rule 7(a) expects that the incumbent must possess twice the experience prescribed for those with the required educational qualification. Therefore, reliance on Rule 7(c) is of no avail.10. It was, however, submitted that since the appellant had secured the First Class Mine Managers Certificate, he possessed the requisite educational qualification and, therefore, it was not necessary to possess double the experience prescribed for those without the required educational qualification. We have already pointed out earlier that by the letter of 26/27th November, 1976 the Institution of Engineers (India) Calcutta had conveyed that persons possessing such a certificate and having five years experience in a responsible position as an engineer after acquiring the certificate shall be eligible for admissions to Membership of the Institution. The Equivalence Committee of the Institution had after evaluating the qualification and experience of the appellant admitted him as Associate Member after exempting him from passing the A & B examinations. True it is that on receipt of the said letter it was communicated to the appellant that his certificate will be treated as equivalent to a degree. But at the same time the appellant was advised to obtain a formal clearance from the Ministry of Education extending recognition to the said equivalence. Unfortunately for the appellant the Ministry clarified that equivalence could be granted only to those who had secured the certificate after passing the A & B examinations and not if exempted from passing the same. Therefore, the recognition for equivalence proposed to be granted by the company could not ultimately be granted. The Tribunal rightly points out that `the equivalence which was good for the purpose of Institution of Engineers (India) was not one which was recognised by the Central Government and hence the appellant could not be said to be possessing a Diploma equivalent to a degree to answer the educational qualifications prescribed by the Rules. This approach of the Tribunal is, therefore, unassailable.11. We may now turn to office order No. 6(1) dated 22nd January, 1982 whereby the Board of Directors approved certain modifications in the Annexure attached to the Recruitment and Promotion Rules. These changes were made effective from 17th October, 1981. Column 8 of the modified entry reads as under :``Sr. Mining Engineer with(a) Degree in Mining of a recognised University/Institute or equivalent.(b) 1st Class Mine Managers Certificate of competency under Metalliferous Mines Regulations (UR).(c) 3 years service in the company in the scale of Rs.the modified entry the eligibility criteria for direct recruits remains the same except for a slight change in the experience criterion, viz., the requirement of experience of 7 years in a responsible position in an underground mine has been dispensed with. The significant change, however brought about in column 8 is to state the educational/experience qualifications for promotion separately. The experience criteria for promotion under the modified entry is reduced to three years service in the company in a post carrying a scale of Rs. 1500-2000/-. Therefore, under the revised entry a Senior Mining Engineer possessing the educational qualification at (a) and (b) and experience of three years service in the company on a post carrying a scale of Rs. 1500-2000 became eligible for promotion to the post of Chief Mining Engineer. Now, if Rule 7(a) of the Recruitment and Promotion Rules is invoked a Senior Mining Engineer who does not possess the requisite educational qualification but possesses double the prescribed experience, i.e. experience of six years service in the company on a post carrying a pay scale of Rs. 1500-2000, would be eligible for promotion to the post of Chief Mining Engineer. The submission of Mr. Venugopal was that even if it is assumed that the appellant was not qualified to be promoted to the post of the Chief Mining Engineer on 19/21st April, 1980, he at any rate became eligible for promotion on the modification of the relevant entry in the Annexure extracted earlier with effect from 17th October, 1981 and even if his promotion is regularised or deemed to have been regularised by the company from the said date, he was entitled to be considered for further promotion in the cadre of Deputy General Manager and later General Manager (T) of the company. Mr. Ashok Desai for the company supported this line of reasoning and contended that as far as the company is concerned, it always treated the appellant as eligible for being promoted to the higher posts of Deputy General Manager and General Manager (T). There is considerable force in this submission. The Tribunals order does not deal with this aspect of the matter. We have agreed with the Tribunal that under the rule position as it existed at the date of the appellants promotion to the post of Chief Mining Engineer, i.e. on 19/21st April, 1980, the appellant was not eligible for appointment to the said post by promotion. However, on the change brought about in the relevant entry by the order of 22nd January, 1981 with effect from 17th October, 1981, the appellant became eligible for promotion and even if his placement in the cadre of Chief Mining Engineer is reckoned from that date he was clearly eligible for upward promotion. But, submitted Mr. Jain, once the Court holds that the initial entry of the candidate was in violation of the promotional criteria, his entry must be treated as void and unless the DPC reconsiders his case for promotion along with others his entry in the cadre cannot be regularised on a deeming fiction. He also submitted that no such case was put up before the High Court and, therefore, this Court should not permit it to be placed for the first time in proceedings under Article 136 of the Constitution. According to him the Article 136 jurisdiction must be exercised sparingly and in support he invited our attention the observations (extracted earlier) from this Courts decision in Ujagar Singhs case. We are not impressed by this approach. In the first place it must be remembered that the appellants promotion made under the order of 19th April, 1980 was sought to be undone only after his promotion to the higher post. Secondly there is no charm in directing the reversion of the appellant for a short period from 21st April, 1980 to 16th October, 1981 when we find that under the revised or modified criteria he was eligible for appointment as Chief Mining Engineer on 17th October, 1981. He was placed junior to others and even if he is considered as promoted with effect from 17th October, 1981 he would continue to rank junior. He was selected for the higher post on merit though he was junior to others. Therefore, it is not a case where he had received weightage because he was shown senior when the DPC selected him for the higher post. He has served on the promotion post of Deputy General Manager (T) since July, 1983. Would it not be harsh and shocking to revert him after so many years only on the ground that he must seek re-entry in the cadre of Chief Mining Engineers with effect from 17th October, 1981 when he acquired eligibility on the modification of the relevant entry in the annexure to the Rules. We think it would result in gross injustice to the appellant. We are, therefore, not impressed by the technical objection raised by Mr. Jain. | 1 | 5,026 | 1,609 | ### 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:
B examinations and not if exempted from passing the same. Therefore, the recognition for equivalence proposed to be granted by the company could not ultimately be granted. The Tribunal rightly points out that `the equivalence which was good for the purpose of Institution of Engineers (India) was not one which was recognised by the Central Government and hence the appellant could not be said to be possessing a Diploma equivalent to a degree to answer the educational qualifications prescribed by the Rules. This approach of the Tribunal is, therefore, unassailable.11. We may now turn to office order No. 6(1) dated 22nd January, 1982 whereby the Board of Directors approved certain modifications in the Annexure attached to the Recruitment and Promotion Rules. These changes were made effective from 17th October, 1981. Column 8 of the modified entry reads as under :``Sr. Mining Engineer with (a) Degree in Mining of a recognised University/Institute or equivalent.(b) 1st Class Mine Managers Certificate of competency under Metalliferous Mines Regulations (UR).(c) 3 years service in the company in the scale of Rs. 1500-2000. Under the modified entry the eligibility criteria for direct recruits remains the same except for a slight change in the experience criterion, viz., the requirement of experience of 7 years in a responsible position in an underground mine has been dispensed with. The significant change, however brought about in column 8 is to state the educational/experience qualifications for promotion separately. The experience criteria for promotion under the modified entry is reduced to three years service in the company in a post carrying a scale of Rs. 1500-2000/-. Therefore, under the revised entry a Senior Mining Engineer possessing the educational qualification at (a) and (b) and experience of three years service in the company on a post carrying a scale of Rs. 1500-2000 became eligible for promotion to the post of Chief Mining Engineer. Now, if Rule 7(a) of the Recruitment and Promotion Rules is invoked a Senior Mining Engineer who does not possess the requisite educational qualification but possesses double the prescribed experience, i.e. experience of six years service in the company on a post carrying a pay scale of Rs. 1500-2000, would be eligible for promotion to the post of Chief Mining Engineer. The submission of Mr. Venugopal was that even if it is assumed that the appellant was not qualified to be promoted to the post of the Chief Mining Engineer on 19/21st April, 1980, he at any rate became eligible for promotion on the modification of the relevant entry in the Annexure extracted earlier with effect from 17th October, 1981 and even if his promotion is regularised or deemed to have been regularised by the company from the said date, he was entitled to be considered for further promotion in the cadre of Deputy General Manager and later General Manager (T) of the company. Mr. Ashok Desai for the company supported this line of reasoning and contended that as far as the company is concerned, it always treated the appellant as eligible for being promoted to the higher posts of Deputy General Manager and General Manager (T). There is considerable force in this submission. The Tribunals order does not deal with this aspect of the matter. We have agreed with the Tribunal that under the rule position as it existed at the date of the appellants promotion to the post of Chief Mining Engineer, i.e. on 19/21st April, 1980, the appellant was not eligible for appointment to the said post by promotion. However, on the change brought about in the relevant entry by the order of 22nd January, 1981 with effect from 17th October, 1981, the appellant became eligible for promotion and even if his placement in the cadre of Chief Mining Engineer is reckoned from that date he was clearly eligible for upward promotion. But, submitted Mr. Jain, once the Court holds that the initial entry of the candidate was in violation of the promotional criteria, his entry must be treated as void and unless the DPC reconsiders his case for promotion along with others his entry in the cadre cannot be regularised on a deeming fiction. He also submitted that no such case was put up before the High Court and, therefore, this Court should not permit it to be placed for the first time in proceedings under Article 136 of the Constitution. According to him the Article 136 jurisdiction must be exercised sparingly and in support he invited our attention the observations (extracted earlier) from this Courts decision in Ujagar Singhs case. We are not impressed by this approach. In the first place it must be remembered that the appellants promotion made under the order of 19th April, 1980 was sought to be undone only after his promotion to the higher post. Secondly there is no charm in directing the reversion of the appellant for a short period from 21st April, 1980 to 16th October, 1981 when we find that under the revised or modified criteria he was eligible for appointment as Chief Mining Engineer on 17th October, 1981. He was placed junior to others and even if he is considered as promoted with effect from 17th October, 1981 he would continue to rank junior. He was selected for the higher post on merit though he was junior to others. Therefore, it is not a case where he had received weightage because he was shown senior when the DPC selected him for the higher post. He has served on the promotion post of Deputy General Manager (T) since July, 1983. Would it not be harsh and shocking to revert him after so many years only on the ground that he must seek re-entry in the cadre of Chief Mining Engineers with effect from 17th October, 1981 when he acquired eligibility on the modification of the relevant entry in the annexure to the Rules. We think it would result in gross injustice to the appellant. We are, therefore, not impressed by the technical objection raised by Mr. Jain.
### Response:
1
### Explanation:
passing the A & B examinations and not if exempted from passing the same. Therefore, the recognition for equivalence proposed to be granted by the company could not ultimately be granted. The Tribunal rightly points out that `the equivalence which was good for the purpose of Institution of Engineers (India) was not one which was recognised by the Central Government and hence the appellant could not be said to be possessing a Diploma equivalent to a degree to answer the educational qualifications prescribed by the Rules. This approach of the Tribunal is, therefore, unassailable.11. We may now turn to office order No. 6(1) dated 22nd January, 1982 whereby the Board of Directors approved certain modifications in the Annexure attached to the Recruitment and Promotion Rules. These changes were made effective from 17th October, 1981. Column 8 of the modified entry reads as under :``Sr. Mining Engineer with(a) Degree in Mining of a recognised University/Institute or equivalent.(b) 1st Class Mine Managers Certificate of competency under Metalliferous Mines Regulations (UR).(c) 3 years service in the company in the scale of Rs.the modified entry the eligibility criteria for direct recruits remains the same except for a slight change in the experience criterion, viz., the requirement of experience of 7 years in a responsible position in an underground mine has been dispensed with. The significant change, however brought about in column 8 is to state the educational/experience qualifications for promotion separately. The experience criteria for promotion under the modified entry is reduced to three years service in the company in a post carrying a scale of Rs. 1500-2000/-. Therefore, under the revised entry a Senior Mining Engineer possessing the educational qualification at (a) and (b) and experience of three years service in the company on a post carrying a scale of Rs. 1500-2000 became eligible for promotion to the post of Chief Mining Engineer. Now, if Rule 7(a) of the Recruitment and Promotion Rules is invoked a Senior Mining Engineer who does not possess the requisite educational qualification but possesses double the prescribed experience, i.e. experience of six years service in the company on a post carrying a pay scale of Rs. 1500-2000, would be eligible for promotion to the post of Chief Mining Engineer. The submission of Mr. Venugopal was that even if it is assumed that the appellant was not qualified to be promoted to the post of the Chief Mining Engineer on 19/21st April, 1980, he at any rate became eligible for promotion on the modification of the relevant entry in the Annexure extracted earlier with effect from 17th October, 1981 and even if his promotion is regularised or deemed to have been regularised by the company from the said date, he was entitled to be considered for further promotion in the cadre of Deputy General Manager and later General Manager (T) of the company. Mr. Ashok Desai for the company supported this line of reasoning and contended that as far as the company is concerned, it always treated the appellant as eligible for being promoted to the higher posts of Deputy General Manager and General Manager (T). There is considerable force in this submission. The Tribunals order does not deal with this aspect of the matter. We have agreed with the Tribunal that under the rule position as it existed at the date of the appellants promotion to the post of Chief Mining Engineer, i.e. on 19/21st April, 1980, the appellant was not eligible for appointment to the said post by promotion. However, on the change brought about in the relevant entry by the order of 22nd January, 1981 with effect from 17th October, 1981, the appellant became eligible for promotion and even if his placement in the cadre of Chief Mining Engineer is reckoned from that date he was clearly eligible for upward promotion. But, submitted Mr. Jain, once the Court holds that the initial entry of the candidate was in violation of the promotional criteria, his entry must be treated as void and unless the DPC reconsiders his case for promotion along with others his entry in the cadre cannot be regularised on a deeming fiction. He also submitted that no such case was put up before the High Court and, therefore, this Court should not permit it to be placed for the first time in proceedings under Article 136 of the Constitution. According to him the Article 136 jurisdiction must be exercised sparingly and in support he invited our attention the observations (extracted earlier) from this Courts decision in Ujagar Singhs case. We are not impressed by this approach. In the first place it must be remembered that the appellants promotion made under the order of 19th April, 1980 was sought to be undone only after his promotion to the higher post. Secondly there is no charm in directing the reversion of the appellant for a short period from 21st April, 1980 to 16th October, 1981 when we find that under the revised or modified criteria he was eligible for appointment as Chief Mining Engineer on 17th October, 1981. He was placed junior to others and even if he is considered as promoted with effect from 17th October, 1981 he would continue to rank junior. He was selected for the higher post on merit though he was junior to others. Therefore, it is not a case where he had received weightage because he was shown senior when the DPC selected him for the higher post. He has served on the promotion post of Deputy General Manager (T) since July, 1983. Would it not be harsh and shocking to revert him after so many years only on the ground that he must seek re-entry in the cadre of Chief Mining Engineers with effect from 17th October, 1981 when he acquired eligibility on the modification of the relevant entry in the annexure to the Rules. We think it would result in gross injustice to the appellant. We are, therefore, not impressed by the technical objection raised by Mr. Jain.
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Pegasus Assets Reconstruction P.Ltd Vs. M/S Haryana Concast Limited | deposit in this Court.31. The argument on behalf of Mr. Rajaliwala and the intervener Himalayan Infra Projects Private Limited is that this Court should take a practical view and allow the offer of Rs.50 crores in comparison to Rs.32 crores deposited by the auction purchaser. In reply, on behalf of Venus Realcon- respondent No. 3, it was pointed out that Mr. Rajaliwala is himself a property dealer and a PIL at his instance, in this matter, does not deserve any consideration for lack of good faith, in view of Judgment in the case of Arun Kumar Agrawal vs. Union of India, 2014 (2) SCC 609. It was pointed out from materials on record that the valuation of property has been changing from 2002 when it was estimated to be Rs.10.13 crores. In January 2010 its market value was around Rs.24-25 crores and the distress value was Rs.18-20 crores approximately as per two different valuation reports. The valuation of Rs.75 crores approximately in 2008 was unrealistic, solely on the basis of oral communication from the Collector said to be based upon valuation for commercial plot and not for an industrial plot. It is pointed out that one bid in 2005 by M/s. Radha Raman Builders and Developers Private Limited for Rs.29 crores approximately for a larger plot than the actual land, could not materialize. The first offer by M/s. Venus Realcon on 9.4.2010 was Rs.26 crores which on negotiation was raised to Rs.26.50 crores. Subsequently on allegations made by Mr. Rajaliwala the Company Judge on 13.5.2010 held an open bid in Court, wherein M/s. Venus Realcon raised its bid to Rs.32 crores. The Court then ordered for fresh advertisement pursuant to which no bidder, including Mr. Rajaliwala offered more than Rs.32 crores. Hence the Company Court confirmed the sale in favour of M/s. Venus Realcon for Rs.32 crores but it was made subject to Special Leave Petitions filed by Pegasus and HSIIDC.32. On considering the submissions of parties, we find that the sale confirmed in favour of M/s. Venus Realcon for Rs.32 crores does not require any interference particularly at the instance of Petitioner-Vinod Rajaliwala. There was no illegality or irregularity established against the conduct of auction and once it is found that the offer of Rs.32 crores was a fair offer in a competitive bid conducted fairly and the offer has been accepted and the sale confirmed, it would not be proper for this court to undermine the value of such auction sale conducted not only by the secured creditor but also by the Official Liquidator who was permitted to be associated with the whole process of finding out of valuation as well as the conduct of sale. M/s. Venus Realcon has rightly placed reliance upon the judgments of this court in the case of Valji Khimji & Co. vs. Official Liquidator of Hindustan Nitro Product (Gujarat) Ltd. 2008(9) SCC 299 and Vedica Procon Private Limited vs. Balleshwar Greens P. Ltd., 2015(8) SCALE 713. In Valji Khimji, the law was enunciated in Paragraph 28 in the following words: “If it is held that every confirmed sale can be set aside the result would be that no auction-sale will ever be complete because always somebody can come after the auction or its confirmation offering a higher amount. It could have been a different matter if the auction had been held without adequate publicity in well-known newspapers having wide circulation, but where the auction-sale was done after wide publicity, then setting aside the sale after its confirmation will create huge problems. When an auction-sale is advertised in well-known newspapers having wide circulation, all eligible persons can come and bid for the same, and they are themselves to be blamed if they do not come forward to bid at the time of the auction. They cannot ordinarily later on be allowed after the bidding (or confirmation) is over to offer a higher price. Of course, the situation may be different if an auction-sale is finalized, say for Rs.1 crore, and subsequently somebody turns up offering Rs.10 crores. In this situation it is possible to infer that there was some fraud because if somebody subsequently offers Rs.10 crores, then an inference can be drawn that an attempt had been made to acquire that property/asset at a grossly inadequate price. This situation itself may indicate fraud or some collusion. However, if the price offered after the auction is over which is only a little over the auction price, that cannot by itself suggest that any fraud has been done.” 33. In Vedica Procon’s case (supra) the aforesaid view was noticed and after considering many judgments in Paragraph 39, the Court approved the view taken in Navalkha and Sons vs. Sri Ramanya Das & Ors., 1969 (3) SCC 537 that there is a discretion in the Company Court either to accept or reject the highest bid before an order of confirmation of sale is made. However, once the Company Court is satisfied that the price is adequate, the subsequent higher offer cannot be a ground for refusing confirmation. The price of immoveable property keeps on varying depending upon the market conditions and availability of a buyer. Such fluctuations may attract fresh higher offers but normally such offers cannot be made the basis for reopening the confirmed sale which was otherwise valid. In the present case, we are satisfied that the sale made in favour of M/s. Venus Realcon does not require any interference. There is no good reason why the full price paid by Venus Realcon should be ordered to be refunded with interest etc. and possession which was delivered to Venus Realcon at the time of sale should be disturbed after passage of so much time. In such circumstances, while granting leave in SLP(C) Nos.117-118, the consequent Civil Appeals are hereby dismissed but without any order as to costs. The money deposited in this case by the intervener M/s. Himalayan Infra Projects Private Limited should be refunded to it forthwith along with interest accrued thereupon. | 1[ds]27. We grant leave in SLP(C) No.7074 of 2010 preferred by HSIIDC but only to dismiss this case as we have found the grievance of Pegasus to be justified; it was entitled not only to stay outside the winding up proceeding in view of provisions of SARFAESI Act which is a special and later Act but was also entitled to exercise its rights without any fetters that were erroneously placed upon it by the company Judge and were approved also by the Division Bench. Hence, the grievance of the HSIIDC that Pegasus should not have been permitted to stay outside the winding up proceeding is found meritless. Consequently its appeal has to be dismissed.28. As we have approved the judgment of the Division Bench of Delhi High Court in the case of Megnostar, the appeals preferred against the judgment in Civil Appeal Nos. 9293-94 of 2014 are hereby dismissed. In the facts of the case there shall be no order as to costs.29. With respect to the case of Vinod Rajaliwala, it has been indicated earlier that approximately 36 acres of land of Haryana Concast Limited was put to auction and sale by Pegasus in association with official liquidator and was ultimately sold for Rs.32 crores in favour of M/s. Venus Realcon Private Limited. Vinod Rajaliwala challenged the orders of the company Judge confirming the sale by preferring a company appeal and also through a public interest litigation (a writ petition). Both were dismissed by the Division Bench of Punjab and Haryana High Court by orders passed on 23.9.2010. These orders in company appeal No. 10/2010 and PIL being CWP No.8422 of 2010 are under challenge at the instance of Mr. Rajaliwala through special leave petition (C) Nos. 117-118 of 2011.30. Since the larger issue arising out of the conflicting judgments of Punjab and Haryana High Court and Delhi High Court has already been addressed by us, the case of Mr. Rajaliwala requires adjudication, mostly on facts as to whether the sale confirmed by the Company Judge and approved by the Division Bench in favour of M/s. Venus Realcon requires any interference. It is not at all necessary to go into the facts which preceded the sale in favour of M/s Venus Realcon for Rs.32 crores which till date stands confirmed. It is against confirmation of sale that Mr. Rajaliwala has preferred appeal as well as a PIL on the ground that the consideration money does not reflect the correct value of the secured assets, i.e., the land sold to M/s. Venus Realcon. In order to substantiate this claim, Mr. Rajaliwala was granted an opportunity by the Division Bench to find out a higher bid. One M/s. ACHASTES Promoters Private Limited through an application in Company Appeal No. 10/2010 claimed to offer a bid of Rs.33 crores but later withdrew the same. Thereafter, another buyer made an offer of Rs.37 crores but tendered a meagre amount of Rs.1 crore only before the Division Bench. On these facts the Division Bench dismissed company appeal on 23.9.2010. As a consequence, the PIL was also dismissed on the same date. In this Court, the petitioner claimed that the property was worth hundred of crores but ultimately petitioner persuaded another entity M/s. Himalayan Infra Projects Private Limited to offer a higher bid. This company was allowed to intervene and be impleaded, and it deposited 10 crores in January, 2011 and Rs. 40 crores in April, 2011. That money is lying in deposit in this Court.31. The argument on behalf of Mr. Rajaliwala and the intervener Himalayan Infra Projects Private Limited is that this Court should take a practical view and allow the offer of Rs.50 crores in comparison to Rs.32 crores deposited by the auction purchaser. In reply, on behalf of Venus Realcon- respondent No. 3, it was pointed out that Mr. Rajaliwala is himself a property dealer and a PIL at his instance, in this matter, does not deserve any consideration for lack of good faith, in view of Judgment in the case of Arun Kumar Agrawal vs. Union of India, 2014 (2) SCC 609. It was pointed out from materials on record that the valuation of property has been changing from 2002 when it was estimated to be Rs.10.13 crores. In January 2010 its market value was around Rs.24-25 crores and the distress value was Rs.18-20 crores approximately as per two different valuation reports. The valuation of Rs.75 crores approximately in 2008 was unrealistic, solely on the basis of oral communication from the Collector said to be based upon valuation for commercial plot and not for an industrial plot. It is pointed out that one bid in 2005 by M/s. Radha Raman Builders and Developers Private Limited for Rs.29 crores approximately for a larger plot than the actual land, could not materialize. The first offer by M/s. Venus Realcon on 9.4.2010 was Rs.26 crores which on negotiation was raised to Rs.26.50 crores. Subsequently on allegations made by Mr. Rajaliwala the Company Judge on 13.5.2010 held an open bid in Court, wherein M/s. Venus Realcon raised its bid to Rs.32 crores. The Court then ordered for fresh advertisement pursuant to which no bidder, including Mr. Rajaliwala offered more than Rs.32 crores. Hence the Company Court confirmed the sale in favour of M/s. Venus Realcon for Rs.32 crores but it was made subject to Special Leave Petitions filed by Pegasus and HSIIDC.32. On considering the submissions of parties, we find that the sale confirmed in favour of M/s. Venus Realcon for Rs.32 crores does not require any interference particularly at the instance of Petitioner-Vinod Rajaliwala. There was no illegality or irregularity established against the conduct of auction and once it is found that the offer of Rs.32 crores was a fair offer in a competitive bid conducted fairly and the offer has been accepted and the sale confirmed, it would not be proper for this court to undermine the value of such auction sale conducted not only by the secured creditor but also by the Official Liquidator who was permitted to be associated with the whole process of finding out of valuation as well as the conduct of sale. M/s. Venus Realcon has rightly placed reliance upon the judgments of this court in the case of Valji Khimji & Co. vs. Official Liquidator of Hindustan Nitro Product (Gujarat) Ltd. 2008(9) SCC 299 and Vedica Procon Private Limited vs. Balleshwar Greens P. Ltd., 2015(8) SCALE 713. In Valji Khimji, the law was enunciated in Paragraph 28 in the followingit is held that every confirmed sale can be set aside the result would be that no auction-sale will ever be complete because always somebody can come after the auction or its confirmation offering a higher amount. It could have been a different matter if the auction had been held without adequate publicity in well-known newspapers having wide circulation, but where the auction-sale was done after wide publicity, then setting aside the sale after its confirmation will create huge problems. When an auction-sale is advertised in well-known newspapers having wide circulation, all eligible persons can come and bid for the same, and they are themselves to be blamed if they do not come forward to bid at the time of the auction. They cannot ordinarily later on be allowed after the bidding (or confirmation) is over to offer a higher price. Of course, the situation may be different if an auction-sale is finalized, say for Rs.1 crore, and subsequently somebody turns up offering Rs.10 crores. In this situation it is possible to infer that there was some fraud because if somebody subsequently offers Rs.10 crores, then an inference can be drawn that an attempt had been made to acquire that property/asset at a grossly inadequate price. This situation itself may indicate fraud or some collusion. However, if the price offered after the auction is over which is only a little over the auction price, that cannot by itself suggest that any fraud has been done.case (supra) the aforesaid view was noticed and after considering many judgments in Paragraph 39, the Court approved the view taken in Navalkha and Sons vs. Sri Ramanya Das & Ors., 1969 (3) SCC 537 that there is a discretion in the Company Court either to accept or reject the highest bid before an order of confirmation of sale is made. However, once the Company Court is satisfied that the price is adequate, the subsequent higher offer cannot be a ground for refusing confirmation. The price of immoveable property keeps on varying depending upon the market conditions and availability of a buyer. Such fluctuations may attract fresh higher offers but normally such offers cannot be made the basis for reopening the confirmed sale which was otherwise valid. In the present case, we are satisfied that the sale made in favour of M/s. Venus Realcon does not require any interference. There is no good reason why the full price paid by Venus Realcon should be ordered to be refunded with interest etc. and possession which was delivered to Venus Realcon at the time of sale should be disturbed after passage of so much time. In such circumstances, while granting leave in SLP(C) Nos.117-118, the consequent Civil Appeals are hereby dismissed but without any order as to costs. The money deposited in this case by the intervener M/s. Himalayan Infra Projects Private Limited should be refunded to it forthwith along with interest accrued thereupon. | 1 | 8,170 | 1,718 | ### 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:
deposit in this Court.31. The argument on behalf of Mr. Rajaliwala and the intervener Himalayan Infra Projects Private Limited is that this Court should take a practical view and allow the offer of Rs.50 crores in comparison to Rs.32 crores deposited by the auction purchaser. In reply, on behalf of Venus Realcon- respondent No. 3, it was pointed out that Mr. Rajaliwala is himself a property dealer and a PIL at his instance, in this matter, does not deserve any consideration for lack of good faith, in view of Judgment in the case of Arun Kumar Agrawal vs. Union of India, 2014 (2) SCC 609. It was pointed out from materials on record that the valuation of property has been changing from 2002 when it was estimated to be Rs.10.13 crores. In January 2010 its market value was around Rs.24-25 crores and the distress value was Rs.18-20 crores approximately as per two different valuation reports. The valuation of Rs.75 crores approximately in 2008 was unrealistic, solely on the basis of oral communication from the Collector said to be based upon valuation for commercial plot and not for an industrial plot. It is pointed out that one bid in 2005 by M/s. Radha Raman Builders and Developers Private Limited for Rs.29 crores approximately for a larger plot than the actual land, could not materialize. The first offer by M/s. Venus Realcon on 9.4.2010 was Rs.26 crores which on negotiation was raised to Rs.26.50 crores. Subsequently on allegations made by Mr. Rajaliwala the Company Judge on 13.5.2010 held an open bid in Court, wherein M/s. Venus Realcon raised its bid to Rs.32 crores. The Court then ordered for fresh advertisement pursuant to which no bidder, including Mr. Rajaliwala offered more than Rs.32 crores. Hence the Company Court confirmed the sale in favour of M/s. Venus Realcon for Rs.32 crores but it was made subject to Special Leave Petitions filed by Pegasus and HSIIDC.32. On considering the submissions of parties, we find that the sale confirmed in favour of M/s. Venus Realcon for Rs.32 crores does not require any interference particularly at the instance of Petitioner-Vinod Rajaliwala. There was no illegality or irregularity established against the conduct of auction and once it is found that the offer of Rs.32 crores was a fair offer in a competitive bid conducted fairly and the offer has been accepted and the sale confirmed, it would not be proper for this court to undermine the value of such auction sale conducted not only by the secured creditor but also by the Official Liquidator who was permitted to be associated with the whole process of finding out of valuation as well as the conduct of sale. M/s. Venus Realcon has rightly placed reliance upon the judgments of this court in the case of Valji Khimji & Co. vs. Official Liquidator of Hindustan Nitro Product (Gujarat) Ltd. 2008(9) SCC 299 and Vedica Procon Private Limited vs. Balleshwar Greens P. Ltd., 2015(8) SCALE 713. In Valji Khimji, the law was enunciated in Paragraph 28 in the following words: “If it is held that every confirmed sale can be set aside the result would be that no auction-sale will ever be complete because always somebody can come after the auction or its confirmation offering a higher amount. It could have been a different matter if the auction had been held without adequate publicity in well-known newspapers having wide circulation, but where the auction-sale was done after wide publicity, then setting aside the sale after its confirmation will create huge problems. When an auction-sale is advertised in well-known newspapers having wide circulation, all eligible persons can come and bid for the same, and they are themselves to be blamed if they do not come forward to bid at the time of the auction. They cannot ordinarily later on be allowed after the bidding (or confirmation) is over to offer a higher price. Of course, the situation may be different if an auction-sale is finalized, say for Rs.1 crore, and subsequently somebody turns up offering Rs.10 crores. In this situation it is possible to infer that there was some fraud because if somebody subsequently offers Rs.10 crores, then an inference can be drawn that an attempt had been made to acquire that property/asset at a grossly inadequate price. This situation itself may indicate fraud or some collusion. However, if the price offered after the auction is over which is only a little over the auction price, that cannot by itself suggest that any fraud has been done.” 33. In Vedica Procon’s case (supra) the aforesaid view was noticed and after considering many judgments in Paragraph 39, the Court approved the view taken in Navalkha and Sons vs. Sri Ramanya Das & Ors., 1969 (3) SCC 537 that there is a discretion in the Company Court either to accept or reject the highest bid before an order of confirmation of sale is made. However, once the Company Court is satisfied that the price is adequate, the subsequent higher offer cannot be a ground for refusing confirmation. The price of immoveable property keeps on varying depending upon the market conditions and availability of a buyer. Such fluctuations may attract fresh higher offers but normally such offers cannot be made the basis for reopening the confirmed sale which was otherwise valid. In the present case, we are satisfied that the sale made in favour of M/s. Venus Realcon does not require any interference. There is no good reason why the full price paid by Venus Realcon should be ordered to be refunded with interest etc. and possession which was delivered to Venus Realcon at the time of sale should be disturbed after passage of so much time. In such circumstances, while granting leave in SLP(C) Nos.117-118, the consequent Civil Appeals are hereby dismissed but without any order as to costs. The money deposited in this case by the intervener M/s. Himalayan Infra Projects Private Limited should be refunded to it forthwith along with interest accrued thereupon.
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April, 2011. That money is lying in deposit in this Court.31. The argument on behalf of Mr. Rajaliwala and the intervener Himalayan Infra Projects Private Limited is that this Court should take a practical view and allow the offer of Rs.50 crores in comparison to Rs.32 crores deposited by the auction purchaser. In reply, on behalf of Venus Realcon- respondent No. 3, it was pointed out that Mr. Rajaliwala is himself a property dealer and a PIL at his instance, in this matter, does not deserve any consideration for lack of good faith, in view of Judgment in the case of Arun Kumar Agrawal vs. Union of India, 2014 (2) SCC 609. It was pointed out from materials on record that the valuation of property has been changing from 2002 when it was estimated to be Rs.10.13 crores. In January 2010 its market value was around Rs.24-25 crores and the distress value was Rs.18-20 crores approximately as per two different valuation reports. The valuation of Rs.75 crores approximately in 2008 was unrealistic, solely on the basis of oral communication from the Collector said to be based upon valuation for commercial plot and not for an industrial plot. It is pointed out that one bid in 2005 by M/s. Radha Raman Builders and Developers Private Limited for Rs.29 crores approximately for a larger plot than the actual land, could not materialize. The first offer by M/s. Venus Realcon on 9.4.2010 was Rs.26 crores which on negotiation was raised to Rs.26.50 crores. Subsequently on allegations made by Mr. Rajaliwala the Company Judge on 13.5.2010 held an open bid in Court, wherein M/s. Venus Realcon raised its bid to Rs.32 crores. The Court then ordered for fresh advertisement pursuant to which no bidder, including Mr. Rajaliwala offered more than Rs.32 crores. Hence the Company Court confirmed the sale in favour of M/s. Venus Realcon for Rs.32 crores but it was made subject to Special Leave Petitions filed by Pegasus and HSIIDC.32. On considering the submissions of parties, we find that the sale confirmed in favour of M/s. Venus Realcon for Rs.32 crores does not require any interference particularly at the instance of Petitioner-Vinod Rajaliwala. There was no illegality or irregularity established against the conduct of auction and once it is found that the offer of Rs.32 crores was a fair offer in a competitive bid conducted fairly and the offer has been accepted and the sale confirmed, it would not be proper for this court to undermine the value of such auction sale conducted not only by the secured creditor but also by the Official Liquidator who was permitted to be associated with the whole process of finding out of valuation as well as the conduct of sale. M/s. Venus Realcon has rightly placed reliance upon the judgments of this court in the case of Valji Khimji & Co. vs. Official Liquidator of Hindustan Nitro Product (Gujarat) Ltd. 2008(9) SCC 299 and Vedica Procon Private Limited vs. Balleshwar Greens P. Ltd., 2015(8) SCALE 713. In Valji Khimji, the law was enunciated in Paragraph 28 in the followingit is held that every confirmed sale can be set aside the result would be that no auction-sale will ever be complete because always somebody can come after the auction or its confirmation offering a higher amount. It could have been a different matter if the auction had been held without adequate publicity in well-known newspapers having wide circulation, but where the auction-sale was done after wide publicity, then setting aside the sale after its confirmation will create huge problems. When an auction-sale is advertised in well-known newspapers having wide circulation, all eligible persons can come and bid for the same, and they are themselves to be blamed if they do not come forward to bid at the time of the auction. They cannot ordinarily later on be allowed after the bidding (or confirmation) is over to offer a higher price. Of course, the situation may be different if an auction-sale is finalized, say for Rs.1 crore, and subsequently somebody turns up offering Rs.10 crores. In this situation it is possible to infer that there was some fraud because if somebody subsequently offers Rs.10 crores, then an inference can be drawn that an attempt had been made to acquire that property/asset at a grossly inadequate price. This situation itself may indicate fraud or some collusion. However, if the price offered after the auction is over which is only a little over the auction price, that cannot by itself suggest that any fraud has been done.case (supra) the aforesaid view was noticed and after considering many judgments in Paragraph 39, the Court approved the view taken in Navalkha and Sons vs. Sri Ramanya Das & Ors., 1969 (3) SCC 537 that there is a discretion in the Company Court either to accept or reject the highest bid before an order of confirmation of sale is made. However, once the Company Court is satisfied that the price is adequate, the subsequent higher offer cannot be a ground for refusing confirmation. The price of immoveable property keeps on varying depending upon the market conditions and availability of a buyer. Such fluctuations may attract fresh higher offers but normally such offers cannot be made the basis for reopening the confirmed sale which was otherwise valid. In the present case, we are satisfied that the sale made in favour of M/s. Venus Realcon does not require any interference. There is no good reason why the full price paid by Venus Realcon should be ordered to be refunded with interest etc. and possession which was delivered to Venus Realcon at the time of sale should be disturbed after passage of so much time. In such circumstances, while granting leave in SLP(C) Nos.117-118, the consequent Civil Appeals are hereby dismissed but without any order as to costs. The money deposited in this case by the intervener M/s. Himalayan Infra Projects Private Limited should be refunded to it forthwith along with interest accrued thereupon.
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State Of Gujarat Vs. Chinubhai Gopaldas | Hidayatullah, CJ.1. This is an appeal by special leave against the judgment and order of a learned Single Judge of the High Court of Gujarat, January 8, 1965, by which an order confiscating 1,500 and odd bottles said to contain intoxicating liquor by the City Magistrate, 8th Court, Ahmedabad, has been set aside.2. The facts of the case are as follows. On January 9, 1963, Sub-Inspector Benot of Ahmedabad City raided a godown consisting of two rooms in Serial No. 1510/0 and Survey No. 324/0. He found several deal boxes which were opened and each box was found to contain 144 bottles packed with grass, each bottle containing 4 oz. of some liquid. Bottles were of two kinds, one containing yellow liquid and the other a red liquid. The bottles containing yellow liquid were labelled U.D. Colon Solvek Cosmetics Bombay, 28, and the bottles containing red liquid were labelled Jasmine Batch No. 3. Solvek Cosmetics Bombay. From these bottles, two bottles one of each kind, were selected and were sent to the Chemical Examiner Baroda for test. Before sending them, the Panchas were allowed to seal the bottles with paper slips containing the signature of panchas pasted on them for identification. On analysis, they were found to contain alchohol and the respondent Chinubhai Gopaldas was prosecuted under Section 66 (b) of the Bombay Prohibition Act. The other bottles numbering 1584 containing 6336 oz. of alleged alchohol were kept intact.3. Gopal Dass prosecution failed. He was acquitted by the City Magistrate, because according to him, it was not proved beyond reasonable doubt that he was in possession of these bottles on his own. It was found that he possessed them as agents of a wholesale merchant. It is in evidence however that he did not possess a permit or licence for possessing alcohol. The Magistrate while acquitting him ordered the confiscation of the remaining bottles under Sec. 98 of the Prohibition Act.4. The State Government did not appeal against the acquittal. Gopaldas went to the High Court in appeal against the order of confiscation. The learned Single Judge of the High Court ordered return of the bottles, because according to him it was not proved that the 1500 and odd other bottles also contained intoxicants. He therefore held that the confiscation of the bottles was illegal as no order under Section 98 of the Bombay Prohibition Act could be passed.5. In this appeal by the State of Gujarat it is contended that Section 98 applies to the case. That section reads as follows :"Whenever any offence punishable under this Act has been committed,(a) any intoxicant, hemp, mhowra, flowers, molasses materials, still, utensil, implement or apparatus in respect of which the offence has been committed,* * *shall be confiscated by the order of the Court."6. The short question therefore is whether it can be said that in respect of the 1500 and odd bottles, an offence punishable under the Prohibition Act had been committed. It is no doubt true that the person who was charged with committing an offence was found not guilty, but the question is not whether the accused has been successfully brought to book, but whether the offence in respect of the property has been committed or not. There is distinction between the two.An offence may be demonstrated to be committed although the accused who committed it may not be successfully prosecuted. We may give an example. Suppose in a house a vast quantity of contraband opium is found. The householder may get off because the opium was found from a place which was open and had access to strangers. He may get the benefit of doubt and be acquitted, but it is clear that in so far as the opium is concerned, an offence must be deemed to have been committed, and if it is proved that the contraband article was opium it would be remarkable that the order should be that the opium be returned to the householder. In these circumstances, on proof that the contraband article in respect of which an offence has been committed is proved to exist the obvious course would be to confiscate it to the State. In the present case, the two bottles which were sent to the Chemical Examiner were said to contain alcohol although there was some doubt in the mind of the Magistrate as to whether there was no chance of any malpractice. Be that as it may, there are the other bottles intact. There is some evidence to show that they were in the original packing and were a proprietary product.The manufacturer came as a witness and deposed that the liquids were bottled by him as a proprietary manufacture. In these circumstances, it would be fair to assume that all of them were of the same kind as the ones which were sent for chemical examination. However an examination of random samples can be made and if they satisfy the court that the bottles contain contraband stuff the bottles can be confiscated. The order of the High Court is thus set aside, but instead of restoring the order of confiscation we order that a few bottles at random should be analysed and if contraband stuff against the Prohibition Act is found the whole stock shall be confiscated. | 1[ds]It is no doubt true that the person who was charged with committing an offence was found not guilty, but the question is not whether the accused has been successfully brought to book, but whether the offence in respect of the property has been committed or not. There is distinction between the two.An offence may be demonstrated to be committed although the accused who committed it may not be successfully prosecuted. We may give an example. Suppose in a house a vast quantity of contraband opium is found. The householder may get off because the opium was found from a place which was open and had access to strangers. He may get the benefit of doubt and be acquitted, but it is clear that in so far as the opium is concerned, an offence must be deemed to have been committed, and if it is proved that the contraband article was opium it would be remarkable that the order should be that the opium be returned to the householder. In these circumstances, on proof that the contraband article in respect of which an offence has been committed is proved to exist the obvious course would be to confiscate it to the State. In the present case, the two bottles which were sent to the Chemical Examiner were said to contain alcohol although there was some doubt in the mind of the Magistrate as to whether there was no chance of any malpractice. Be that as it may, there are the other bottles intact. There is some evidence to show that they were in the original packing and were a proprietary product.The manufacturer came as a witness and deposed that the liquids were bottled by him as a proprietary manufacture. In these circumstances, it would be fair to assume that all of them were of the same kind as the ones which were sent for chemical examination. However an examination of random samples can be made and if they satisfy the court that the bottles contain contraband stuff the bottles can be confiscated. The order of the High Court is thus set aside, but instead of restoring the order of confiscation we order that a few bottles at random should be analysed and if contraband stuff against the Prohibition Act is found the whole stock shall be confiscated. | 1 | 974 | 414 | ### 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:
Hidayatullah, CJ.1. This is an appeal by special leave against the judgment and order of a learned Single Judge of the High Court of Gujarat, January 8, 1965, by which an order confiscating 1,500 and odd bottles said to contain intoxicating liquor by the City Magistrate, 8th Court, Ahmedabad, has been set aside.2. The facts of the case are as follows. On January 9, 1963, Sub-Inspector Benot of Ahmedabad City raided a godown consisting of two rooms in Serial No. 1510/0 and Survey No. 324/0. He found several deal boxes which were opened and each box was found to contain 144 bottles packed with grass, each bottle containing 4 oz. of some liquid. Bottles were of two kinds, one containing yellow liquid and the other a red liquid. The bottles containing yellow liquid were labelled U.D. Colon Solvek Cosmetics Bombay, 28, and the bottles containing red liquid were labelled Jasmine Batch No. 3. Solvek Cosmetics Bombay. From these bottles, two bottles one of each kind, were selected and were sent to the Chemical Examiner Baroda for test. Before sending them, the Panchas were allowed to seal the bottles with paper slips containing the signature of panchas pasted on them for identification. On analysis, they were found to contain alchohol and the respondent Chinubhai Gopaldas was prosecuted under Section 66 (b) of the Bombay Prohibition Act. The other bottles numbering 1584 containing 6336 oz. of alleged alchohol were kept intact.3. Gopal Dass prosecution failed. He was acquitted by the City Magistrate, because according to him, it was not proved beyond reasonable doubt that he was in possession of these bottles on his own. It was found that he possessed them as agents of a wholesale merchant. It is in evidence however that he did not possess a permit or licence for possessing alcohol. The Magistrate while acquitting him ordered the confiscation of the remaining bottles under Sec. 98 of the Prohibition Act.4. The State Government did not appeal against the acquittal. Gopaldas went to the High Court in appeal against the order of confiscation. The learned Single Judge of the High Court ordered return of the bottles, because according to him it was not proved that the 1500 and odd other bottles also contained intoxicants. He therefore held that the confiscation of the bottles was illegal as no order under Section 98 of the Bombay Prohibition Act could be passed.5. In this appeal by the State of Gujarat it is contended that Section 98 applies to the case. That section reads as follows :"Whenever any offence punishable under this Act has been committed,(a) any intoxicant, hemp, mhowra, flowers, molasses materials, still, utensil, implement or apparatus in respect of which the offence has been committed,* * *shall be confiscated by the order of the Court."6. The short question therefore is whether it can be said that in respect of the 1500 and odd bottles, an offence punishable under the Prohibition Act had been committed. It is no doubt true that the person who was charged with committing an offence was found not guilty, but the question is not whether the accused has been successfully brought to book, but whether the offence in respect of the property has been committed or not. There is distinction between the two.An offence may be demonstrated to be committed although the accused who committed it may not be successfully prosecuted. We may give an example. Suppose in a house a vast quantity of contraband opium is found. The householder may get off because the opium was found from a place which was open and had access to strangers. He may get the benefit of doubt and be acquitted, but it is clear that in so far as the opium is concerned, an offence must be deemed to have been committed, and if it is proved that the contraband article was opium it would be remarkable that the order should be that the opium be returned to the householder. In these circumstances, on proof that the contraband article in respect of which an offence has been committed is proved to exist the obvious course would be to confiscate it to the State. In the present case, the two bottles which were sent to the Chemical Examiner were said to contain alcohol although there was some doubt in the mind of the Magistrate as to whether there was no chance of any malpractice. Be that as it may, there are the other bottles intact. There is some evidence to show that they were in the original packing and were a proprietary product.The manufacturer came as a witness and deposed that the liquids were bottled by him as a proprietary manufacture. In these circumstances, it would be fair to assume that all of them were of the same kind as the ones which were sent for chemical examination. However an examination of random samples can be made and if they satisfy the court that the bottles contain contraband stuff the bottles can be confiscated. The order of the High Court is thus set aside, but instead of restoring the order of confiscation we order that a few bottles at random should be analysed and if contraband stuff against the Prohibition Act is found the whole stock shall be confiscated.
### Response:
1
### Explanation:
It is no doubt true that the person who was charged with committing an offence was found not guilty, but the question is not whether the accused has been successfully brought to book, but whether the offence in respect of the property has been committed or not. There is distinction between the two.An offence may be demonstrated to be committed although the accused who committed it may not be successfully prosecuted. We may give an example. Suppose in a house a vast quantity of contraband opium is found. The householder may get off because the opium was found from a place which was open and had access to strangers. He may get the benefit of doubt and be acquitted, but it is clear that in so far as the opium is concerned, an offence must be deemed to have been committed, and if it is proved that the contraband article was opium it would be remarkable that the order should be that the opium be returned to the householder. In these circumstances, on proof that the contraband article in respect of which an offence has been committed is proved to exist the obvious course would be to confiscate it to the State. In the present case, the two bottles which were sent to the Chemical Examiner were said to contain alcohol although there was some doubt in the mind of the Magistrate as to whether there was no chance of any malpractice. Be that as it may, there are the other bottles intact. There is some evidence to show that they were in the original packing and were a proprietary product.The manufacturer came as a witness and deposed that the liquids were bottled by him as a proprietary manufacture. In these circumstances, it would be fair to assume that all of them were of the same kind as the ones which were sent for chemical examination. However an examination of random samples can be made and if they satisfy the court that the bottles contain contraband stuff the bottles can be confiscated. The order of the High Court is thus set aside, but instead of restoring the order of confiscation we order that a few bottles at random should be analysed and if contraband stuff against the Prohibition Act is found the whole stock shall be confiscated.
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John Mathai Abraham Vs. M/S.British Physical Labs.India Ltd.&Ors | This appeal brings under challenge the validity of the order of the High Court of Karnataka at Bangalore in H.R.R.P.No.1256 of 1995 of February 22, 1999 allowing the revision filed by the respondent (respondents 1 to 3 are avatars of the same company and are referred to as, the respondent) and dismissing the eviction petition filed by the appellant. 2. The appellant is the landlord or premises being number No.12/1. Primrose Road, Bangalore (for short, the premises) of which the respondent is tenant on a monthly rent of Rs.1800/-. The appellant filed eviction petition seeking eviction of the respondent on two grounds but only one ground under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 (for short the Act) survives - he reasonably and bona fide requires accommodation for personal occupation, both for residence as well as for professional requirements. The respondent contested the petition denying the personal requirement of the appellant and taking the plea that the house in occupation of the appellant being a big house has enough accommodation for his residence and his professional activities. 3. On considering the evidence placed on record, the learned Rent Controller found that a case under Section 21(1)(h) was made out and ordered eviction of the respondent on July 5, 1995. Aggrieved by the said order of the learned Rent Controller, the respondent filed revision before the High Court, which was allowed by the impugned order. It is against that order that the appellant is in appeal before us, by special leave. 4. Mr. M.S. Ganesh, learned senior counsel for the appellant, has contended that the appellant initiated proceedings for eviction of the respondent during the life time of his father and it had become impossible for him to get along with his step mother; the ground of bona fide requirement was established and the trial court gave effect to it but High Court reversed the findings of fact recorded by the trial court which is unsustainable in law. 5. Mr. Nageshwar Rao, learned senior counsel for the respondent, argues that after the death of his father the house in occupation of the appellant is available to him both for personal as well as professional requirement and, therefore, it can not be said that he reasonably and bona fide requires the premises for his personal occupation. As the Rent Controller did not correctly appreciate the facts, the High Court on a proper consideration of the material placed before it reversed the findings taking the view that the need was not bona fide and this Court, under Article 136 of the Constitution, would not disturb such findings. 6. The only question that arises for consideration is: whether the appellant has proved reasonable and bona fide requirement of the premises to warrant eviction of the respondent under clause (h) of sub-section (1) of Section 21 of the Act. 7. The facts are not in dispute. The premises in question belongs to the appellant and that he let it out to the respondent sometime in 1976 on a monthly rent of Rs.1300/- which was subsequently enhanced to Rs.1800/- per month. The appellant, finding it difficult to get along with his father and the stepmother on account of day-to-day disputes, invoked the jurisdiction of the Rent Controller under Section 21(1)(h) of the Act seeking eviction of the respondent. The trial court on appreciation of the evidence found that the need of the respondent was established. However, the High Court in revision took note of the facts that the building of the appellants father, in which he is presently residing, is a huge building, that the step brothers, and sister are staying abroad; that the step mother had not demanded the respondent to vacate the premises. On that premise, it concluded that the appellants claim that he cannot pursue his professional activities in premises in which he is presently living, was not substantiated. We are unable to agree with the conclusion arrived at by the High Court. The case set up by the respondent is that after the death of the father of the appellant, he became the sole owner of the premises and therefore he had enough accommodation available both for his residence as well as for professional requirements as such requirement of the premises is not real and bona fide. This was not admitted by the appellant. Nothing has been placed on record to show that the appellant has become the sole owner of that building in which he and his stepmother are living. At best the appellant might be having a share in it. Merely because the appellant is living in a room of the huge building which does not exclusively belong to him, it cannot be said that his requirement to occupy the premises for his residence and professional requirements is not reasonable and bona fide. In our view being in occupation of a portion of a building holding a fractional undivided share, is no bar to invoke the provision of Section 21(1)(h) of the Act. In this view of the matter, we set aside the order under challenge and restore the order of the learned Rent Controller, in H.R.C. No.10541 of 1989 dated July 5, 1995. 8. Learned counsel for the respondent seeks six months time to vacate the premises. Having regard to the fact that the respondent is business concern and has been in occupation of the premises for over 25 years, we consider it just and appropriate to grant time till 30th April, 2002. The respondent shall file usual undertaking within four weeks from today. | 1[ds]The premises in question belongs to the appellant and that he let it out to the respondent sometime in 1976 on a monthly rent of Rs.1300/which was subsequently enhanced to Rs.1800/per month. The appellant, finding it difficult to get along with his father and the stepmother on account ofy disputes, invoked the jurisdiction of the Rent Controller under Section 21(1)(h) of the Act seeking eviction of the respondent. The trial court on appreciation of the evidence found that the need of the respondent was established. However, the High Court in revision took note of the facts that the building of the appellants father, in which he is presently residing, is a huge building, that the step brothers, and sister are staying abroad; that the step mother had not demanded the respondent to vacate the premises. On that premise, it concluded that the appellants claim that he cannot pursue his professional activities in premises in which he is presently living, was not substantiated. We are unable to agree with the conclusion arrived at by the High Court. The case set up by the respondent is that after the death of the father of the appellant, he became the sole owner of the premises and therefore he had enough accommodation available both for his residence as well as for professional requirements as such requirement of the premises is not real and bona fide. This was not admitted by the appellant. Nothing has been placed on record to show that the appellant has become the sole owner of that building in which he and his stepmother are living. At best the appellant might be having a share in it. Merely because the appellant is living in a room of the huge building which does not exclusively belong to him, it cannot be said that his requirement to occupy the premises for his residence and professional requirements is not reasonable and bona fide. In our view being in occupation of a portion of a building holding a fractional undivided share, is no bar to invoke the provision of Section 21(1)(h) of the Act. In this view of the matter, we set aside the order under challenge and restore the order of the learned Rent Controller, in H.R.C. No.10541 of 1989 dated July 5, 19958. Learned counsel for the respondent seeks six months time to vacate the premises. Having regard to the fact that the respondent is business concern and has been in occupation of the premises for over 25 years, we consider it just and appropriate to grant time till 30th April, 2002. The respondent shall file usual undertaking within four weeks from today. | 1 | 1,041 | 493 | ### 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:
This appeal brings under challenge the validity of the order of the High Court of Karnataka at Bangalore in H.R.R.P.No.1256 of 1995 of February 22, 1999 allowing the revision filed by the respondent (respondents 1 to 3 are avatars of the same company and are referred to as, the respondent) and dismissing the eviction petition filed by the appellant. 2. The appellant is the landlord or premises being number No.12/1. Primrose Road, Bangalore (for short, the premises) of which the respondent is tenant on a monthly rent of Rs.1800/-. The appellant filed eviction petition seeking eviction of the respondent on two grounds but only one ground under Section 21(1)(h) of the Karnataka Rent Control Act, 1961 (for short the Act) survives - he reasonably and bona fide requires accommodation for personal occupation, both for residence as well as for professional requirements. The respondent contested the petition denying the personal requirement of the appellant and taking the plea that the house in occupation of the appellant being a big house has enough accommodation for his residence and his professional activities. 3. On considering the evidence placed on record, the learned Rent Controller found that a case under Section 21(1)(h) was made out and ordered eviction of the respondent on July 5, 1995. Aggrieved by the said order of the learned Rent Controller, the respondent filed revision before the High Court, which was allowed by the impugned order. It is against that order that the appellant is in appeal before us, by special leave. 4. Mr. M.S. Ganesh, learned senior counsel for the appellant, has contended that the appellant initiated proceedings for eviction of the respondent during the life time of his father and it had become impossible for him to get along with his step mother; the ground of bona fide requirement was established and the trial court gave effect to it but High Court reversed the findings of fact recorded by the trial court which is unsustainable in law. 5. Mr. Nageshwar Rao, learned senior counsel for the respondent, argues that after the death of his father the house in occupation of the appellant is available to him both for personal as well as professional requirement and, therefore, it can not be said that he reasonably and bona fide requires the premises for his personal occupation. As the Rent Controller did not correctly appreciate the facts, the High Court on a proper consideration of the material placed before it reversed the findings taking the view that the need was not bona fide and this Court, under Article 136 of the Constitution, would not disturb such findings. 6. The only question that arises for consideration is: whether the appellant has proved reasonable and bona fide requirement of the premises to warrant eviction of the respondent under clause (h) of sub-section (1) of Section 21 of the Act. 7. The facts are not in dispute. The premises in question belongs to the appellant and that he let it out to the respondent sometime in 1976 on a monthly rent of Rs.1300/- which was subsequently enhanced to Rs.1800/- per month. The appellant, finding it difficult to get along with his father and the stepmother on account of day-to-day disputes, invoked the jurisdiction of the Rent Controller under Section 21(1)(h) of the Act seeking eviction of the respondent. The trial court on appreciation of the evidence found that the need of the respondent was established. However, the High Court in revision took note of the facts that the building of the appellants father, in which he is presently residing, is a huge building, that the step brothers, and sister are staying abroad; that the step mother had not demanded the respondent to vacate the premises. On that premise, it concluded that the appellants claim that he cannot pursue his professional activities in premises in which he is presently living, was not substantiated. We are unable to agree with the conclusion arrived at by the High Court. The case set up by the respondent is that after the death of the father of the appellant, he became the sole owner of the premises and therefore he had enough accommodation available both for his residence as well as for professional requirements as such requirement of the premises is not real and bona fide. This was not admitted by the appellant. Nothing has been placed on record to show that the appellant has become the sole owner of that building in which he and his stepmother are living. At best the appellant might be having a share in it. Merely because the appellant is living in a room of the huge building which does not exclusively belong to him, it cannot be said that his requirement to occupy the premises for his residence and professional requirements is not reasonable and bona fide. In our view being in occupation of a portion of a building holding a fractional undivided share, is no bar to invoke the provision of Section 21(1)(h) of the Act. In this view of the matter, we set aside the order under challenge and restore the order of the learned Rent Controller, in H.R.C. No.10541 of 1989 dated July 5, 1995. 8. Learned counsel for the respondent seeks six months time to vacate the premises. Having regard to the fact that the respondent is business concern and has been in occupation of the premises for over 25 years, we consider it just and appropriate to grant time till 30th April, 2002. The respondent shall file usual undertaking within four weeks from today.
### Response:
1
### Explanation:
The premises in question belongs to the appellant and that he let it out to the respondent sometime in 1976 on a monthly rent of Rs.1300/which was subsequently enhanced to Rs.1800/per month. The appellant, finding it difficult to get along with his father and the stepmother on account ofy disputes, invoked the jurisdiction of the Rent Controller under Section 21(1)(h) of the Act seeking eviction of the respondent. The trial court on appreciation of the evidence found that the need of the respondent was established. However, the High Court in revision took note of the facts that the building of the appellants father, in which he is presently residing, is a huge building, that the step brothers, and sister are staying abroad; that the step mother had not demanded the respondent to vacate the premises. On that premise, it concluded that the appellants claim that he cannot pursue his professional activities in premises in which he is presently living, was not substantiated. We are unable to agree with the conclusion arrived at by the High Court. The case set up by the respondent is that after the death of the father of the appellant, he became the sole owner of the premises and therefore he had enough accommodation available both for his residence as well as for professional requirements as such requirement of the premises is not real and bona fide. This was not admitted by the appellant. Nothing has been placed on record to show that the appellant has become the sole owner of that building in which he and his stepmother are living. At best the appellant might be having a share in it. Merely because the appellant is living in a room of the huge building which does not exclusively belong to him, it cannot be said that his requirement to occupy the premises for his residence and professional requirements is not reasonable and bona fide. In our view being in occupation of a portion of a building holding a fractional undivided share, is no bar to invoke the provision of Section 21(1)(h) of the Act. In this view of the matter, we set aside the order under challenge and restore the order of the learned Rent Controller, in H.R.C. No.10541 of 1989 dated July 5, 19958. Learned counsel for the respondent seeks six months time to vacate the premises. Having regard to the fact that the respondent is business concern and has been in occupation of the premises for over 25 years, we consider it just and appropriate to grant time till 30th April, 2002. The respondent shall file usual undertaking within four weeks from today.
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B. Raghuvir Acharya Vs. Central Bureau Of Investigation | contemplated by s. 236 Cr.P.C. therefore arises when it cannot be said with any definiteness, either by the prosecutor or by the Court, that such and such facts would be proved. The Court has at the time of framing the charges, therefore to consider what different offences could be made out on the basis of the allegations made by the prosecution in the complaint or in the charge submitted by the investigating agency or by the allegations made by the various prosecution witnesses examined prior to the framing of the charge. All such possible offences could be charged in view of the provisions of s. 236 Cr.P.C. as it can be reasonably said that it was doubtful as to which of the offences the facts which could be ultimately proved would constitute. The facts which must have been alleged prior to the stage of the framing of the charge in the present case must have been what had been stated in the charge-sheet submitted by the Investigating Officer, 24-Parganas, which is printed at p. 3 of the appeal record. This charge-sheet narrates in the column meant for the name of offences and circumstances connected with it : that on the 6th October 1956 Sunil Kumar Paul, a Public servant in the employment of the office the Sub-Divisional Health Officer, Barrackpore i.e., (clerk) dishonestly drew Rs. 1,763-6-0 excluding Postal Life Insurance deduction of Rs. 5-10- 0 from the State Bank of India, Barrackpore Branch by submitting a false duplicate Estt. Pay Bill under head 39 for the month of September 1956 for the office of the said S.D.H.O., Barrackpore. The money drawn was not credited to the office of the Sub- Divisional Health Officer, Barrackpore. It is practically on these facts that the conviction of the appellant for an offence under s. 420 I.P.C. has been founded. It follows that the Special Court could therefore have framed a charge under s. 420 I.P.C. at the relevant time if it had been of the opinion that it was doubtful whether these facts constitute an offence under s. 409 I.P.C. as stated in the charge-sheet or an offence under s. 420 I.P.C. (16). When a charge under s. 420 I.P.C. could have been framed by the trial Court by virtue of s. 236 Cr.P.C. that Court or the appellate Court can, in law, convict the appellant of this offence instead of an offence under s. 409 I.P.C. if it be of the view that the offence of cheating had been established. This would be in accordance with the provisions of s. 237 Cr.P.C. (17) It is then urged for the appellant that under the proviso to s. 4 of the Act, the Special Court can try any other offence only when the accused is specifically charge with that offence. The language of the proviso does not lead to such a conclusion. It provides for the trial of the accused for any other offence provided the accused could be charged with that offence at the same trial under the provisions of the Code of Criminal Procedure. The proviso does not say that the charge must be framed, though of course, if the trial Court itself tries the accused for a certain offence, it will ordinarily frame a charge. The proviso empowers a Court to try the accused for that offence and has nothing to do with the power of the trial court or of the appellate Court to record a conviction for any other offence when an accused is being tried with respect to an offence mentioned in the Schedule. The Courts power to take recourse to the provisions which empower it to record a conviction for an offence not actuality charged, depends on other provisions of the Code and the Act. (24) The ingredients of two offences must be different from one another and it is therefore not necessary to consider whether the ingredients of the two offences are in any way related. The Court has to see, for the purpose of the proviso, whether the accused could be charged with any offence other than the one referred to in the allotment order, in view of the provisions of the Code. There is nothing in the proviso which could lead to the construction that any limitations other than those laid down by the provisions of the Code of Criminal Procedure were to affect the nature of the offence which could be tried by the Special Court. (25.) We are therefore of opinion that the Special Court could try the appellant for the offence under s. 420 I.P.C. and that therefore the High Court was right in altering his conviction from that under s. 409 to s. 420 I.P.C. 58. In this case the prosecution proved that the accused No.3 deceived CMF by making a false representation dated 9th March, 1992 and dishonestly induced the official of CMF to deliver Rs.32.50 lakhs in his favour and he dishonestly received the amount and thereby committed offence under Section 420 IPC. Accused No.3 was originally charged for the offence of cheating, criminal breach of trust for receiving stolen property/falsification of accounts under Section 120-B, Section 420/409 of the IPC apart from Section 411 and Section 477-A of the IPC. We, therefore, alter his conviction from that of under Section 409 to Section 420 of the IPC and convict him for the offence under Section 420 of the IPC and sentence him to undergo rigorous imprisonment for three years. 59. Further, as the prosecution successfully established the ingredients of theft for receiving stolen property from Canara Bank i.e. Rs.32.50 lakhs against accused No.3, we uphold the order of his conviction and sentenced passed by the Special Court under Section 411 of the IPC. 60. However, in view of the acquittal of accused Nos.1 and 2, the order of conviction of accused No.3 under Section 477-A is set aside. The judgment dated 6th September, 2001 passed by the learned Special Judge is affirmed with modification as mentioned above. | 0[ds]45. Considering the aforesaid, we feel it expedient to record that the Special Court fell into a manifest error in coming to a conclusion with regard to accused No.1, as reflected in the judgment under appeal, which cannot be sustained. The appeal (Criminal Appeal No.1001 of 2001), therefore, succeeds and is allowed and the appellant – B.R. Acharya is acquitted of all the charges, his bail bonds shall stand discharged46. It is the case of prosecution that for various acts done by accused No.3, he used accused No.1, the Trustee and General Manager of CMF to commit criminal breach of trust in respect of funds of CMF. In this context, it was submitted that under the general charge of criminal conspiracy, all those acts also constitute cheating and criminal breach of trust47. The evidence of PW.11 shows that accused No.3 was the broker for CMF. He was also a member of the Stock Exchange. He had an account in Andhra Bank. In the case of Andhra Bank and ABFSL, Rs.33, crores invested by them in CMF belonged to accused No.3. This is also evidenced by the two cheques (Ex.29 and Ex.30). It was the accused No.3 who induced Andhra Bank and ABFSL to apply for allotment of CANCIGO units as apparent from the applications (Ex.19 and Ex.15) which had been signed by the two officers- Dhankumar and Kalyanaraman, who were accused in some other matter. This position is not even disputed by accused No.3. The reason is not known as to why accused No.3 got Andhra Bank and ABFSL to apply. The IO has rightly pointed out in his evidence, repeatedly, that accused No.3 was not concerned with the generation of funds in this case. Applications for allotment were made by Andhra Bank and ABFSL but no entry regarding the transactions were made in the books of Andhra Bank and ABFSL. Therefore, it is clear that accused No.3, to whom Rs.33 crores belongs got Andhra Bank and ABFSL to apply for the units but kept the said matter hidden by not recording the same. In September, 1991, accused No.3 affixed the brokers stamp on the applications (Ex.19 and Ex.15). Knowing fully well that the investors were not Andhra Bank and ABFSL, he had got officers of Andhra Bank and ABFSL to sign the application forms. Both these officers are accused in other cases. By affixing the rubber stamp of the broker, accused No.3 falsely represented to CMF that he had brought subscriptions from Andhra Bank and ABFSL as a broker and, accordingly, claimed brokerage. Even before September, 1991, he wrote a letter (Ex.18) to Andhra Bank to the effect that units worth Rs.11 crores would be given to Andhra Bank and ABFSL. They were offered as security for ready forward transaction with ABFSL as evident from the statement of PW.11. From the evidence of PW.11 it is clear that the entire record of CMF shows that pursuant to the applications (Ex.19 and Ex.15) made by Andhra Bank and ABFSL, accounts were opened in the names of Andhra Bank and ABFSL as subscribers. The names of Andhra Bank and ABFSL found place in the Investment Register [Ex.38(i) and Ex.39(i)] and also Investors Fund Ledger [Ex.A3(35)(2) and Ex.A3(37)(1)]. Thereby CMF had recognized only Andhra Bank and ABFSL as their investors and the units could be redeemed only by Andhra Bank and ABFSL. The brokers stamp was affixed on them by accused No.3 only with a view to claim brokerage. Although he was aware that the total amount of Rs.33 crores was invested by him. Even the half yearly interest which was paid on the investments of Rs.33 crores on 8th January, 1992 by CMF was only in the names of the subscribers- Andhra Bank and ABFSL. The evidence further shows that after receiving the income distribution cheques, Andhra Bank and ABFSL transferred the amount to the account of accused No.3 pursuant to his letter (Ex.12). This was on 9th January, 1992 and, yet, accused No.3 made an application vide Ex.17 claiming brokerage from CMF as a broker and not as an investor. Accused No.3 never objected to allotment of units in favour of Andhra Bank and ABFSL. In his statement under Section 313 of the Criminal Procedure Code stated that he was aware of CMF simultaneously deploying 80% of Rs.65 crores at 15% per annum in Citi Bank. Yet, accused No.3 concealed the true nature of the transactions of Rs.33 crores in the names of Andhra Bank and ABFSL though it was known to him on 9th March, 1992 that the half yearly interest came to him not from CMF but from Andhra Bank and ABFSL. In view of the aforesaid evidence if learned Judge, Special Court held that on 9th March, 1992 accused No.3 dishonestly claimed brokerage from CMF by putting brokers stamp and by disguising his investment of Rs.33 crores on Ex.19 and Ex.15, no interference is called for against such finding48. In September, 1992, after the scam became public, the interest warrants were returned by Andhra Bank and ABFSL disclaiming their investments. With regard to the rest of two transactions of Sahara India and IDBI, the evidence on record shows firstly, that on applications of IDBI and Sahara India there is no brokers stamp. Despite there being no brokers stamp on these applications accused No.3 had wrongfully and dishonestly claimed brokerage on 9th March, 199249. It was the case of accused No.3 that there was prior agreement between him, CMF and Citi Bank under which Citi Bank got the units purchased in the names of Sahara India and IDBI. What is relevant is allotment of units in favour of Andhra Bank, ABFSL, Sahara India or IDBI. It is to be noticed that the ownership of the units is with Andhra Bank, ABFSL, Sahara India or IDBI. It is evident from CANCIGO Certificates that at the expiry of one year, Sahara India and IDBI got CANCIGO units encashed and they have received the entire money in their accounts on the basis that they were the owners of the units. The evidence of PW.2, PW.6 and PW.7 on behalf of IDBI and Sahara India, shows that no broker was involved in the transactions involving purchase of CANCIGO units of Rs.32 crores face value. The case of the prosecution is very simple that out of four applications for allotment of units, two contained rubber stamp and rest of two applications of Sahara India and IDBI did not bear rubber stamp. The case of the prosecution is that brokerage was dishonestly claimed by accused No.3 with full knowledge that he has not acted as a broker58. In this case the prosecution proved that the accused No.3 deceived CMF by making a false representation dated 9th March, 1992 and dishonestly induced the official of CMF to deliver Rs.32.50 lakhs in his favour and he dishonestly received the amount and thereby committed offence under Section 420 IPC. Accused No.3 was originally charged for the offence of cheating, criminal breach of trust for receiving stolen property/falsification of accounts under Section 120-B, Section 420/409 of the IPC apart from Section 411 and Section 477-A of the IPC. We, therefore, alter his conviction from that of under Section 409 to Section 420 of the IPC and convict him for the offence under Section 420 of the IPC and sentence him to undergo rigorous imprisonment for three years59. Further, as the prosecution successfully established the ingredients of theft for receiving stolen property from Canara Bank i.e. Rs.32.50 lakhs against accused No.3, we uphold the order of his conviction and sentenced passed by the Special Court under Section 411 of the IPC. | 0 | 9,642 | 1,423 | ### 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:
contemplated by s. 236 Cr.P.C. therefore arises when it cannot be said with any definiteness, either by the prosecutor or by the Court, that such and such facts would be proved. The Court has at the time of framing the charges, therefore to consider what different offences could be made out on the basis of the allegations made by the prosecution in the complaint or in the charge submitted by the investigating agency or by the allegations made by the various prosecution witnesses examined prior to the framing of the charge. All such possible offences could be charged in view of the provisions of s. 236 Cr.P.C. as it can be reasonably said that it was doubtful as to which of the offences the facts which could be ultimately proved would constitute. The facts which must have been alleged prior to the stage of the framing of the charge in the present case must have been what had been stated in the charge-sheet submitted by the Investigating Officer, 24-Parganas, which is printed at p. 3 of the appeal record. This charge-sheet narrates in the column meant for the name of offences and circumstances connected with it : that on the 6th October 1956 Sunil Kumar Paul, a Public servant in the employment of the office the Sub-Divisional Health Officer, Barrackpore i.e., (clerk) dishonestly drew Rs. 1,763-6-0 excluding Postal Life Insurance deduction of Rs. 5-10- 0 from the State Bank of India, Barrackpore Branch by submitting a false duplicate Estt. Pay Bill under head 39 for the month of September 1956 for the office of the said S.D.H.O., Barrackpore. The money drawn was not credited to the office of the Sub- Divisional Health Officer, Barrackpore. It is practically on these facts that the conviction of the appellant for an offence under s. 420 I.P.C. has been founded. It follows that the Special Court could therefore have framed a charge under s. 420 I.P.C. at the relevant time if it had been of the opinion that it was doubtful whether these facts constitute an offence under s. 409 I.P.C. as stated in the charge-sheet or an offence under s. 420 I.P.C. (16). When a charge under s. 420 I.P.C. could have been framed by the trial Court by virtue of s. 236 Cr.P.C. that Court or the appellate Court can, in law, convict the appellant of this offence instead of an offence under s. 409 I.P.C. if it be of the view that the offence of cheating had been established. This would be in accordance with the provisions of s. 237 Cr.P.C. (17) It is then urged for the appellant that under the proviso to s. 4 of the Act, the Special Court can try any other offence only when the accused is specifically charge with that offence. The language of the proviso does not lead to such a conclusion. It provides for the trial of the accused for any other offence provided the accused could be charged with that offence at the same trial under the provisions of the Code of Criminal Procedure. The proviso does not say that the charge must be framed, though of course, if the trial Court itself tries the accused for a certain offence, it will ordinarily frame a charge. The proviso empowers a Court to try the accused for that offence and has nothing to do with the power of the trial court or of the appellate Court to record a conviction for any other offence when an accused is being tried with respect to an offence mentioned in the Schedule. The Courts power to take recourse to the provisions which empower it to record a conviction for an offence not actuality charged, depends on other provisions of the Code and the Act. (24) The ingredients of two offences must be different from one another and it is therefore not necessary to consider whether the ingredients of the two offences are in any way related. The Court has to see, for the purpose of the proviso, whether the accused could be charged with any offence other than the one referred to in the allotment order, in view of the provisions of the Code. There is nothing in the proviso which could lead to the construction that any limitations other than those laid down by the provisions of the Code of Criminal Procedure were to affect the nature of the offence which could be tried by the Special Court. (25.) We are therefore of opinion that the Special Court could try the appellant for the offence under s. 420 I.P.C. and that therefore the High Court was right in altering his conviction from that under s. 409 to s. 420 I.P.C. 58. In this case the prosecution proved that the accused No.3 deceived CMF by making a false representation dated 9th March, 1992 and dishonestly induced the official of CMF to deliver Rs.32.50 lakhs in his favour and he dishonestly received the amount and thereby committed offence under Section 420 IPC. Accused No.3 was originally charged for the offence of cheating, criminal breach of trust for receiving stolen property/falsification of accounts under Section 120-B, Section 420/409 of the IPC apart from Section 411 and Section 477-A of the IPC. We, therefore, alter his conviction from that of under Section 409 to Section 420 of the IPC and convict him for the offence under Section 420 of the IPC and sentence him to undergo rigorous imprisonment for three years. 59. Further, as the prosecution successfully established the ingredients of theft for receiving stolen property from Canara Bank i.e. Rs.32.50 lakhs against accused No.3, we uphold the order of his conviction and sentenced passed by the Special Court under Section 411 of the IPC. 60. However, in view of the acquittal of accused Nos.1 and 2, the order of conviction of accused No.3 under Section 477-A is set aside. The judgment dated 6th September, 2001 passed by the learned Special Judge is affirmed with modification as mentioned above.
### Response:
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### Explanation:
accused No.3 was not concerned with the generation of funds in this case. Applications for allotment were made by Andhra Bank and ABFSL but no entry regarding the transactions were made in the books of Andhra Bank and ABFSL. Therefore, it is clear that accused No.3, to whom Rs.33 crores belongs got Andhra Bank and ABFSL to apply for the units but kept the said matter hidden by not recording the same. In September, 1991, accused No.3 affixed the brokers stamp on the applications (Ex.19 and Ex.15). Knowing fully well that the investors were not Andhra Bank and ABFSL, he had got officers of Andhra Bank and ABFSL to sign the application forms. Both these officers are accused in other cases. By affixing the rubber stamp of the broker, accused No.3 falsely represented to CMF that he had brought subscriptions from Andhra Bank and ABFSL as a broker and, accordingly, claimed brokerage. Even before September, 1991, he wrote a letter (Ex.18) to Andhra Bank to the effect that units worth Rs.11 crores would be given to Andhra Bank and ABFSL. They were offered as security for ready forward transaction with ABFSL as evident from the statement of PW.11. From the evidence of PW.11 it is clear that the entire record of CMF shows that pursuant to the applications (Ex.19 and Ex.15) made by Andhra Bank and ABFSL, accounts were opened in the names of Andhra Bank and ABFSL as subscribers. The names of Andhra Bank and ABFSL found place in the Investment Register [Ex.38(i) and Ex.39(i)] and also Investors Fund Ledger [Ex.A3(35)(2) and Ex.A3(37)(1)]. Thereby CMF had recognized only Andhra Bank and ABFSL as their investors and the units could be redeemed only by Andhra Bank and ABFSL. The brokers stamp was affixed on them by accused No.3 only with a view to claim brokerage. Although he was aware that the total amount of Rs.33 crores was invested by him. Even the half yearly interest which was paid on the investments of Rs.33 crores on 8th January, 1992 by CMF was only in the names of the subscribers- Andhra Bank and ABFSL. The evidence further shows that after receiving the income distribution cheques, Andhra Bank and ABFSL transferred the amount to the account of accused No.3 pursuant to his letter (Ex.12). This was on 9th January, 1992 and, yet, accused No.3 made an application vide Ex.17 claiming brokerage from CMF as a broker and not as an investor. Accused No.3 never objected to allotment of units in favour of Andhra Bank and ABFSL. In his statement under Section 313 of the Criminal Procedure Code stated that he was aware of CMF simultaneously deploying 80% of Rs.65 crores at 15% per annum in Citi Bank. Yet, accused No.3 concealed the true nature of the transactions of Rs.33 crores in the names of Andhra Bank and ABFSL though it was known to him on 9th March, 1992 that the half yearly interest came to him not from CMF but from Andhra Bank and ABFSL. In view of the aforesaid evidence if learned Judge, Special Court held that on 9th March, 1992 accused No.3 dishonestly claimed brokerage from CMF by putting brokers stamp and by disguising his investment of Rs.33 crores on Ex.19 and Ex.15, no interference is called for against such finding48. In September, 1992, after the scam became public, the interest warrants were returned by Andhra Bank and ABFSL disclaiming their investments. With regard to the rest of two transactions of Sahara India and IDBI, the evidence on record shows firstly, that on applications of IDBI and Sahara India there is no brokers stamp. Despite there being no brokers stamp on these applications accused No.3 had wrongfully and dishonestly claimed brokerage on 9th March, 199249. It was the case of accused No.3 that there was prior agreement between him, CMF and Citi Bank under which Citi Bank got the units purchased in the names of Sahara India and IDBI. What is relevant is allotment of units in favour of Andhra Bank, ABFSL, Sahara India or IDBI. It is to be noticed that the ownership of the units is with Andhra Bank, ABFSL, Sahara India or IDBI. It is evident from CANCIGO Certificates that at the expiry of one year, Sahara India and IDBI got CANCIGO units encashed and they have received the entire money in their accounts on the basis that they were the owners of the units. The evidence of PW.2, PW.6 and PW.7 on behalf of IDBI and Sahara India, shows that no broker was involved in the transactions involving purchase of CANCIGO units of Rs.32 crores face value. The case of the prosecution is very simple that out of four applications for allotment of units, two contained rubber stamp and rest of two applications of Sahara India and IDBI did not bear rubber stamp. The case of the prosecution is that brokerage was dishonestly claimed by accused No.3 with full knowledge that he has not acted as a broker58. In this case the prosecution proved that the accused No.3 deceived CMF by making a false representation dated 9th March, 1992 and dishonestly induced the official of CMF to deliver Rs.32.50 lakhs in his favour and he dishonestly received the amount and thereby committed offence under Section 420 IPC. Accused No.3 was originally charged for the offence of cheating, criminal breach of trust for receiving stolen property/falsification of accounts under Section 120-B, Section 420/409 of the IPC apart from Section 411 and Section 477-A of the IPC. We, therefore, alter his conviction from that of under Section 409 to Section 420 of the IPC and convict him for the offence under Section 420 of the IPC and sentence him to undergo rigorous imprisonment for three years59. Further, as the prosecution successfully established the ingredients of theft for receiving stolen property from Canara Bank i.e. Rs.32.50 lakhs against accused No.3, we uphold the order of his conviction and sentenced passed by the Special Court under Section 411 of the IPC.
|
Workmen In Buckingham and Carnatic Mills, Madras Vs. Buckingham and Carnatic Mills, Madras | 21 October, 1965 and, after drawing the attention of the workman concerned to the chargesheet and his reply, asked him whether he was pleading guilty or not guilty. On the workman pleading not guilty the witness on the side of the management were examined. The workman was given full opportunity to cross-examine the witnesses and, after those witnesses had been examined, and cross-examined the worker was asked to state whether he had anything further to say. Exhibit M. 9 further shows that the senior labour officer has stated that he will place the proceedings before the mill-manager who will send for the worker and give his decision. When the secretary of the staff union later on made a representation that the extent of the damage which could be attributed to the conduct of the worker was to be ascertained as that information might have a bearing on the question of the punishment to be imposed. The senior labour officer, in view of this representation, again summoned the worker and placed before him the particulars regarding the quantum of damage. The worker indicated that he did not wish to examine the assistant in the finished warehouse from whom the particulars had been collected. Finally the labour officer has stated that the mill-manager would look into the evidence and give his decision. It will, therefore, be seen that excepting collecting the necessary materials and placing them before the mill-manager for the purpose of enabling the latter, who is the authority to impose a punishment under the standing orders, to come to a conclusion regarding the guilt or otherwise of the worker, the senior labour officer had not expressed any opinion regarding the merits of the case. That is as it should be in view of the limited function that the senior labour officer was discharging.12. Exhibits M. 10 and M. 11 clearly show that the mill-manager, after elaborately going into the various items of evidence collected under Ex. M. 9 and after giving a fair and full opportunity to the worker to explain the circumstance bearing against him in the evidence, has recorded a finding that the worker concerned is guilty of misconduct and in consequence, passed the order of dismissal.13. As the findings recorded by the mill-manager are not under challenge before us it became unnecessary to consider the various items of evidence into account by the mill-manager for holding the worker guilty of misconduct. The question naturally arises whether the mill-manager has acted legally in delegating to the senior labour officer, in the case, the task of collecting the necessary evidence. We do not find any such prohibition in the standing order. The requirement is that the enquiry is to be in conformity with the principles of natural justice. As pointed out by this Court in Pradyat Kumar Bose v. Chief Justice of Calcutta High Court [(1955) 2 S.C.R. 1331 at 1345] :". . . the exercise of the power to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power. It is nonetheless so, by reason of the fact that an opportunity to show cause and an enquiry simulating judicial standards have to precede the exercise there of. It is well recognized that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. That cannot be delegated except where the law specifically so provides . . . is the ultimate responsibility for the exercise of such power."We have already pointed out that in the case before us the function of the senior labour officer was only to collect the necessary evidence in respect of the charges and place it before the mill-manager. There is no standing order prohibiting the mill-manager from so authorizing the senior labour officer. The order finding the worker guilty, and in consequence dismissing him from service, was passed by the mill-manager. Therefore, in our opinion, the enquiry proceedings cannot be held to have contravened the provisions of standing order 14.14. In the nature of the jurisdiction exercised by the senior labour officer he had no authority to record any findings on the basis of the evidence recorded by him. On the other hand it is the mill-manager the authority competent to impose the punishment, that has gone into the evidence and ultimately found the worker guilty of misconduct and imposed the punishment of dismissal. Therefore, there is no violation of the principles of natural justice, nor is this a case of an enquiry being conducted by one officer and the finding being recorded by another.15. There is no warrant for the criticism levelled by the appellant that the senior labour officer has acted both as the prosecutor and the judge when he recorded the evidence in his case. No doubt there was no officer separately conducting the prosecution on the side of the management; but what the labour officer had done, as evidenced by Ex. M. 9, was to put questions to the witnesses and elicit answers and allow the worker to cross-examine those witnesses. Similarly he has also taken the statements of the worker and asked for clarification from him wherever necessary. Therefore the enquiry proceedings, as held by the labour court, have been completely fair and impartial. In fact we find that even after the evidence was closed on 29 October, 1965 when the secretary of the staff union desired the senior labour officer to collect materials regarding the extent of damage, as that might go to mitigate the offence, if any, committed by the worker, the labour officer reopened the proceedings on 2 November, 1965 after intimation to the workers. The worker was made aware of the particulars of damage collected and his comments regarding those particulars have been recorded by the labour officer and the entire proceedings have been forwarded by him to the mill-manager. | 0[ds]6. We may straightaway say that these observations of the labour court are erroneous. The labour court has misunderstood the decisions of this Court on this point. This Court has held that standing orders, which have been certified under the Industrial Employment (Standing Orders) Act, 1946, become part of the statutory terms and conditions of service between the industrial employer and his employees and that they will govern the relations between the parties - vide Workers of Dewan Tea Estate and others v. their management [1964 - I L.L.J.due regard to the enquiry proceedings in this case, evidenced by Ex. M. 7 to M. 11 we are satisfied that the enquiry in this case has been conducted by the mill-manager.11. It was the mill-manager who furnished the chargesheet to the workman under Ex. M. 7 charging him with misconduct under standing order 13(d). The senior labour officer had been authorized by the mill-manager to record the evidence and collect the necessary materials. The senior labour officer commenced the proceedings on 21 October, 1965 and, after drawing the attention of the workman concerned to the chargesheet and his reply, asked him whether he was pleading guilty or not guilty. On the workman pleading not guilty the witness on the side of the management were examined. The workman was given full opportunity to cross-examine the witnesses and, after those witnesses had been examined, and cross-examined the worker was asked to state whether he had anything further to say. Exhibit M. 9 further shows that the senior labour officer has stated that he will place the proceedings before the mill-manager who will send for the worker and give his decision. When the secretary of the staff union later on made a representation that the extent of the damage which could be attributed to the conduct of the worker was to be ascertained as that information might have a bearing on the question of the punishment to be imposed. The senior labour officer, in view of this representation, again summoned the worker and placed before him the particulars regarding the quantum of damage. The worker indicated that he did not wish to examine the assistant in the finished warehouse from whom the particulars had been collected. Finally the labour officer has stated that the mill-manager would look into the evidence and give his decision. It will, therefore, be seen that excepting collecting the necessary materials and placing them before the mill-manager for the purpose of enabling the latter, who is the authority to impose a punishment under the standing orders, to come to a conclusion regarding the guilt or otherwise of the worker, the senior labour officer had not expressed any opinion regarding the merits of the case. That is as it should be in view of the limited function that the senior labour officer was discharging.As the findings recorded by the mill-manager are not under challenge before us it became unnecessary to consider the various items of evidence into account by the mill-manager for holding the worker guilty of misconduct. The question naturally arises whether the mill-manager has acted legally in delegating to the senior labour officer, in the case, the task of collecting the necessary evidence. We do not find any such prohibition in the standing order. The requirement is that the enquiry is to be in conformity with the principles of naturalhave already pointed out that in the case before us the function of the senior labour officer was only to collect the necessary evidence in respect of the charges and place it before the mill-manager. There is no standing order prohibiting the mill-manager from so authorizing the senior labour officer. The order finding the worker guilty, and in consequence dismissing him from service, was passed by the mill-manager. Therefore, in our opinion, the enquiry proceedings cannot be held to have contravened the provisions of standing order 14.14. In the nature of the jurisdiction exercised by the senior labour officer he had no authority to record any findings on the basis of the evidence recorded by him. On the other hand it is the mill-manager the authority competent to impose the punishment, that has gone into the evidence and ultimately found the worker guilty of misconduct and imposed the punishment of dismissal. Therefore, there is no violation of the principles of natural justice, nor is this a case of an enquiry being conducted by one officer and the finding being recorded by another.15. There is no warrant for the criticism levelled by the appellant that the senior labour officer has acted both as the prosecutor and the judge when he recorded the evidence in his case. No doubt there was no officer separately conducting the prosecution on the side of the management; but what the labour officer had done, as evidenced by Ex. M. 9, was to put questions to the witnesses and elicit answers and allow the worker to cross-examine those witnesses. Similarly he has also taken the statements of the worker and asked for clarification from him wherever necessary. Therefore the enquiry proceedings, as held by the labour court, have been completely fair and impartial. In fact we find that even after the evidence was closed on 29 October, 1965 when the secretary of the staff union desired the senior labour officer to collect materials regarding the extent of damage, as that might go to mitigate the offence, if any, committed by the worker, the labour officer reopened the proceedings on 2 November, 1965 after intimation to the workers. The worker was made aware of the particulars of damage collected and his comments regarding those particulars have been recorded by the labour officer and the entire proceedings have been forwarded by him to the mill-manager. | 0 | 2,678 | 1,037 | ### 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:
21 October, 1965 and, after drawing the attention of the workman concerned to the chargesheet and his reply, asked him whether he was pleading guilty or not guilty. On the workman pleading not guilty the witness on the side of the management were examined. The workman was given full opportunity to cross-examine the witnesses and, after those witnesses had been examined, and cross-examined the worker was asked to state whether he had anything further to say. Exhibit M. 9 further shows that the senior labour officer has stated that he will place the proceedings before the mill-manager who will send for the worker and give his decision. When the secretary of the staff union later on made a representation that the extent of the damage which could be attributed to the conduct of the worker was to be ascertained as that information might have a bearing on the question of the punishment to be imposed. The senior labour officer, in view of this representation, again summoned the worker and placed before him the particulars regarding the quantum of damage. The worker indicated that he did not wish to examine the assistant in the finished warehouse from whom the particulars had been collected. Finally the labour officer has stated that the mill-manager would look into the evidence and give his decision. It will, therefore, be seen that excepting collecting the necessary materials and placing them before the mill-manager for the purpose of enabling the latter, who is the authority to impose a punishment under the standing orders, to come to a conclusion regarding the guilt or otherwise of the worker, the senior labour officer had not expressed any opinion regarding the merits of the case. That is as it should be in view of the limited function that the senior labour officer was discharging.12. Exhibits M. 10 and M. 11 clearly show that the mill-manager, after elaborately going into the various items of evidence collected under Ex. M. 9 and after giving a fair and full opportunity to the worker to explain the circumstance bearing against him in the evidence, has recorded a finding that the worker concerned is guilty of misconduct and in consequence, passed the order of dismissal.13. As the findings recorded by the mill-manager are not under challenge before us it became unnecessary to consider the various items of evidence into account by the mill-manager for holding the worker guilty of misconduct. The question naturally arises whether the mill-manager has acted legally in delegating to the senior labour officer, in the case, the task of collecting the necessary evidence. We do not find any such prohibition in the standing order. The requirement is that the enquiry is to be in conformity with the principles of natural justice. As pointed out by this Court in Pradyat Kumar Bose v. Chief Justice of Calcutta High Court [(1955) 2 S.C.R. 1331 at 1345] :". . . the exercise of the power to appoint or dismiss an officer is the exercise not of a judicial power but of an administrative power. It is nonetheless so, by reason of the fact that an opportunity to show cause and an enquiry simulating judicial standards have to precede the exercise there of. It is well recognized that a statutory functionary exercising such a power cannot be said to have delegated his functions merely by deputing a responsible and competent official to enquire and report. That is the ordinary mode of exercise of any administrative power. That cannot be delegated except where the law specifically so provides . . . is the ultimate responsibility for the exercise of such power."We have already pointed out that in the case before us the function of the senior labour officer was only to collect the necessary evidence in respect of the charges and place it before the mill-manager. There is no standing order prohibiting the mill-manager from so authorizing the senior labour officer. The order finding the worker guilty, and in consequence dismissing him from service, was passed by the mill-manager. Therefore, in our opinion, the enquiry proceedings cannot be held to have contravened the provisions of standing order 14.14. In the nature of the jurisdiction exercised by the senior labour officer he had no authority to record any findings on the basis of the evidence recorded by him. On the other hand it is the mill-manager the authority competent to impose the punishment, that has gone into the evidence and ultimately found the worker guilty of misconduct and imposed the punishment of dismissal. Therefore, there is no violation of the principles of natural justice, nor is this a case of an enquiry being conducted by one officer and the finding being recorded by another.15. There is no warrant for the criticism levelled by the appellant that the senior labour officer has acted both as the prosecutor and the judge when he recorded the evidence in his case. No doubt there was no officer separately conducting the prosecution on the side of the management; but what the labour officer had done, as evidenced by Ex. M. 9, was to put questions to the witnesses and elicit answers and allow the worker to cross-examine those witnesses. Similarly he has also taken the statements of the worker and asked for clarification from him wherever necessary. Therefore the enquiry proceedings, as held by the labour court, have been completely fair and impartial. In fact we find that even after the evidence was closed on 29 October, 1965 when the secretary of the staff union desired the senior labour officer to collect materials regarding the extent of damage, as that might go to mitigate the offence, if any, committed by the worker, the labour officer reopened the proceedings on 2 November, 1965 after intimation to the workers. The worker was made aware of the particulars of damage collected and his comments regarding those particulars have been recorded by the labour officer and the entire proceedings have been forwarded by him to the mill-manager.
### Response:
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### Explanation:
6. We may straightaway say that these observations of the labour court are erroneous. The labour court has misunderstood the decisions of this Court on this point. This Court has held that standing orders, which have been certified under the Industrial Employment (Standing Orders) Act, 1946, become part of the statutory terms and conditions of service between the industrial employer and his employees and that they will govern the relations between the parties - vide Workers of Dewan Tea Estate and others v. their management [1964 - I L.L.J.due regard to the enquiry proceedings in this case, evidenced by Ex. M. 7 to M. 11 we are satisfied that the enquiry in this case has been conducted by the mill-manager.11. It was the mill-manager who furnished the chargesheet to the workman under Ex. M. 7 charging him with misconduct under standing order 13(d). The senior labour officer had been authorized by the mill-manager to record the evidence and collect the necessary materials. The senior labour officer commenced the proceedings on 21 October, 1965 and, after drawing the attention of the workman concerned to the chargesheet and his reply, asked him whether he was pleading guilty or not guilty. On the workman pleading not guilty the witness on the side of the management were examined. The workman was given full opportunity to cross-examine the witnesses and, after those witnesses had been examined, and cross-examined the worker was asked to state whether he had anything further to say. Exhibit M. 9 further shows that the senior labour officer has stated that he will place the proceedings before the mill-manager who will send for the worker and give his decision. When the secretary of the staff union later on made a representation that the extent of the damage which could be attributed to the conduct of the worker was to be ascertained as that information might have a bearing on the question of the punishment to be imposed. The senior labour officer, in view of this representation, again summoned the worker and placed before him the particulars regarding the quantum of damage. The worker indicated that he did not wish to examine the assistant in the finished warehouse from whom the particulars had been collected. Finally the labour officer has stated that the mill-manager would look into the evidence and give his decision. It will, therefore, be seen that excepting collecting the necessary materials and placing them before the mill-manager for the purpose of enabling the latter, who is the authority to impose a punishment under the standing orders, to come to a conclusion regarding the guilt or otherwise of the worker, the senior labour officer had not expressed any opinion regarding the merits of the case. That is as it should be in view of the limited function that the senior labour officer was discharging.As the findings recorded by the mill-manager are not under challenge before us it became unnecessary to consider the various items of evidence into account by the mill-manager for holding the worker guilty of misconduct. The question naturally arises whether the mill-manager has acted legally in delegating to the senior labour officer, in the case, the task of collecting the necessary evidence. We do not find any such prohibition in the standing order. The requirement is that the enquiry is to be in conformity with the principles of naturalhave already pointed out that in the case before us the function of the senior labour officer was only to collect the necessary evidence in respect of the charges and place it before the mill-manager. There is no standing order prohibiting the mill-manager from so authorizing the senior labour officer. The order finding the worker guilty, and in consequence dismissing him from service, was passed by the mill-manager. Therefore, in our opinion, the enquiry proceedings cannot be held to have contravened the provisions of standing order 14.14. In the nature of the jurisdiction exercised by the senior labour officer he had no authority to record any findings on the basis of the evidence recorded by him. On the other hand it is the mill-manager the authority competent to impose the punishment, that has gone into the evidence and ultimately found the worker guilty of misconduct and imposed the punishment of dismissal. Therefore, there is no violation of the principles of natural justice, nor is this a case of an enquiry being conducted by one officer and the finding being recorded by another.15. There is no warrant for the criticism levelled by the appellant that the senior labour officer has acted both as the prosecutor and the judge when he recorded the evidence in his case. No doubt there was no officer separately conducting the prosecution on the side of the management; but what the labour officer had done, as evidenced by Ex. M. 9, was to put questions to the witnesses and elicit answers and allow the worker to cross-examine those witnesses. Similarly he has also taken the statements of the worker and asked for clarification from him wherever necessary. Therefore the enquiry proceedings, as held by the labour court, have been completely fair and impartial. In fact we find that even after the evidence was closed on 29 October, 1965 when the secretary of the staff union desired the senior labour officer to collect materials regarding the extent of damage, as that might go to mitigate the offence, if any, committed by the worker, the labour officer reopened the proceedings on 2 November, 1965 after intimation to the workers. The worker was made aware of the particulars of damage collected and his comments regarding those particulars have been recorded by the labour officer and the entire proceedings have been forwarded by him to the mill-manager.
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State of Rajasthan Vs. Puri Construction Co. Ltd. and Ors | reappraise the evidence intrinsically with a close scrutiny for finding out that the conclusion drawn from some facts, by the arbitrator is, according to the understanding of the court, erroneous. Such exercise of power which can be exercised by an appellate court with power to reverse the finding of fact, is alien to scope and ambit of challenge of an award under the Arbitration Act. Where the error of finding of facts having a bearing on the award is patent and is easily demonstrable without the necessity of carefully weighing the various possible view points, the interference with award based on erroneous finding of fact is permissible. Similarly, if an award is based by applying a principle of law which is patently erroneous and but for such erroneous application of legal principle, the award could have been made, such award is liable to be aside by holding that there has been legal misconduct on the part of the arbitrator. In ultimate analysis, it is a question of delicate balancing between the permissible limit of error of law and fact and patently erroneous finding easily demonstrable from the materials on record and application of principle of law forming the basis of the award which is patently erroneous. It may be indicated here that however objectively the problem may be viewed, the subjective element inherent in the judge deciding the problem, is bound to creep in and influence the decision. By long training in the art of dispassionate analysis, such subjective element is, however, reduced to minimum. Keeping the aforesaid principle in mind, the challenge to the validity of the impugned award is to be considered with reference to judicial decisions on the subject. 31. The contentions about factual errors and omissions apparent on the face of record as raised in the written argument are essentially errors and omissions in not properly considering the materials on record, in misreading and misconstruing such materials and consideration of some documents and statements out of their contexts. The arbitrators have given the award by referring to various documents and statements available on record and indicating the reasons for basing the findings. Even if it is assumed that on the materials on record, a different view could have been taken and the arbitrators have failed to consider the document and materials on record in their proper perspective, the award is not liable to be struck down in view of judicial decisions referred to hereinbefore. Error apparent on the face of the record does not mean that on closer scrutiny of the import of documents and material on record, the finding made by the arbitrator may be held to be erroneous. Judicial decisions over the decades have indicated that an error of law or fact committed by an arbitrator by itself does not constitute misconduct warranting interference with the award. It does not appear to us that the findings made by the arbitrators are without any basis whatsoever and are not referable to documents relied upon and such findings are so patently unjust or perverse that no reasonable man could have arrived to such findings. Hence, on the score of alleged misreading, misconstruction, misappreciation of the materials on record or failure to consider some of the materials in their proper perspective, the impugned award is not liable to be set aside. It has been urged that computation of lump sum damage in the absence of any material showing actual loss suffered by the contractor is patently unjust and improper warranting interference by this Court. Lump sum award by itself is not illegal as held a number of decisions of this Court. The contractors case was that because of delay in handing over the site and for non supply or delayed supply of materials essential for the construction work thereby putting obstacles and hindrances to execute the work within the stipulated time and ultimately repudiating the contract and seizing machineries etc. of the contractors, he not only suffered huge loss but was practically reduced to bankruptcy. It is the case of the contractor that on account of illegal seizure of costly machineries by the appellant, he was prevented from undertaking other works of contract, A part of machineries seized by the appellant have been sold for Rs. 20 lakhs. In the award, the arbitrators have recorded that the appellant admitted that the remaining machineries would cost about Rs. 5 lakhs. That apart, constructions of labour quarters, laying of roads etc. at substantial cost incurred by the contractor have been utilised by the appellant after repudiation of contact. It may be stated here that the first part of construct work of Mahi Bajaj Sagar Dam was given to M/s. R.S. Sharma. A lump sum award of Rs. 75,41,755 was awarded in favour of M/s. R.S. Sharma. The machineries of M/s. Sharma were not seized by the appellant. Such lump sum award of more than Rs. 75 lakhs without indicating how such quantum was determined has been upheld by this Court and the decision is reported in State of Rajasthan v. R.S. Sharma & Co. (supra). The respondent contractor has urged that the machineries including those seized and sold at depreciated value will now cost about 2.5 crores of rupees. Considering the magnitude of work involving costly machineries and materials, if the two arbitrators in their wide experience have quantified the total damage and has given the award for Rs. 1 crore in favour of the respondent, it cannot be held that such award is so patently unjust and irrational and shocking to the conscience of the court, that the same should be interfered with. As already indicated, in the case of other contractor concerning first part of the work in Mahi Bajaj Sagar Dam, namely, R.S. Sharma & Co. the arbitrators quantified damages to the extent of over Rs. 75 lakhs without indicating how such damages had been quantified. But challenge to such award by the State of Rajasthan failed and the award has been upheld by this Court. | 0[ds]13. Considering the facts and circumstances of the case, it is quite evident that the appellant was aware of Shri Rohatgis appearance as a counsel for the respondent in an appeal before this Court but despite such knowledge, appellant did not raise any objection either before the arbitrators or before this Court during the pendency of the arbitration proceedings but the appellant chose to make various submissions from time to time before the arbitrators and invited adjudication on the reference to arbitration. In this connection, reference may be made to a decision of this Court in Neelakantan & Bros. Construction v. Superintending Engineer National Highways, Salem and Ors. reported inAIR1988SC2045 , In that case the arbitrator, a senior engineer entered upon the reference and proceeded for some time but in view of his transfer he could not complete the same and successor of his office had taken up the arbitration case from the stage wherefrom the said arbitrator entering upon the reference had left and the said successor in office thereafter gave the award in question. Questioning the validity of the award it was contended that as the former arbitrator had entered upon the reference and statements of the parties were filed before him and witnesses were also examined before him, the successor engineer has no jurisdiction to proceed with the arbitration matter from the stage left by the arbitrator. Such challenge to the invalidity of the award was, however, not accepted by this Court by holding that as the fact of taking over the arbitration proceedings by the successor engineer was known to the parties and no objection was raised about his continuing with the arbitration proceedings, the parties had acquiesced to the functioning of the said successor engineer. Accordingly, a party who had acquiesced to the arbitration by the successor engineer was precluded from objecting to such arbitration and giving award or the reference. Referring to the Comments on Russel on Arbitration 18 Edition 105, it has been pointed out in the said decision that attending and taking part in proceedings with full knowledge of the relevant fact will amount to acquiescence. This Court has also referred to an old decision of the Judicial Committee in Chowdhri Murtaza Hossein v. Mussunat Bibi Bechunnissa reported in 3 I.A. 209. Reliance was also made to the observations in the decision of the Calcutta High Court in the case of Jupitor Calcutta Insurance Co. Ltd. reported in AIR 1956 Cal 1472 Reference was also made to another decision of this Court in N. Chellappan v. Secretary Kerala Electricity Board reported in[1975]2SCR811 holding that acquiescence defeat the right of the appellant at a later stage. Similar view was also expressed in another decision of this Court in Prasun Roy v. Calcutta Metropolitan Development Authority and Anr. reported in [1987]3SCR569 . Similar view has also been expressed in a recent judgment of this Court in Reserve Bank of India v, 5.5. Investments and Ors. reported in [1992]3SCR871 . In the said decision, this Court has negatived the contention that Umpires entering upon the reference was invalid by holding that a party objecting to the Umpires entering upon the reference, had agreed to extend the time to enable the Umpire to make the award. Having agreed to extend such time, it must be held that such party had waived its objection to the umpires entering upon the reference.14. In the instant case, admittedly both the parties agreed to extend the time for finally making the award by the joint arbitrators despite the knowledge that Shri Rohatgi had represented one of the parties in a case before this Court. No objection to his functioning was either raised before the arbitrators or before this Court in the pending special leave petition but the appellant had taken part in all the sittings before the arbitrators and made oral and written submissions and invited the adjudication on the reference. It is, therefore, quite evident that even if there was any disability of one of the arbitrators, inspite of the knowledge of such disability, the appellant had participated in the arbitration proceedings, agreed to the extension of time for making the award and invited adjudication on the reference. Accordingly, the appellant cannot be permitted to raise any objection about the validity of the award on the score of disqualification of one of the arbitrators. That apart, such objection has not been filed within the period of limitation but the same has been sought to be raised after 270 days of the notice of filing the award before this Court. therefore, the aforesaid objection as to the validity of the award on account of the alleged disqualification of one of the arbitrators is devoid of any substance and must be rejected.15. The challenge to the invalidity of the award on account of various errors and omissions apparent on the face of the record as alleged by the appellant in the written argument for the appellant may be summarised as follows:(a) the arbitrators clearly misconstrued clause 8 of the special conditions in the contract and the arbitrator failed to take into account that clause 2 to the special conditions only death with the handing over of the site and that clause 8 only dealt with the measurements prior to start of the work which was to be done on the request of the contractor to enable him to prepare the bill.(b) the arbitrators misread the statement at page 148 Vol. II relating to the dates of handing over site and the dates of taking of measurements. Several dates mentioned in the award in the respect are contrary to the statements at page 148 Vol. II.(c) the arbitrators have taken the date of handing over of the flank block 23 prior to monsoon of 1976. Such finding is contrary to the record placed before the arbitrators.(d) the arbitrators misread the statement of Sri Adi Anklesaria, because the arbitrators have only referred to answer to question No. 27, They have failed to consider the notes to question No. 147 wherein the said witness explained that it was not necessary in the case of construction of dam that the entire site should be made available before the work could start.(e) the arbitrators have again misread the statements of Sri Adi Anklesaria in holding that the progress of the claimant was so fast that the claimant was directed to go slow to avoid flooding of Banswara township. It is contended that the documents on record clearly contradict the finding that the contractor was asked to go slow.(f) the arbitrators failed to take into account the letter dated May 6, 1975, written by the claimant (Ex.R-44) wherein the claimant himself expressed difficulty in commencing the work before October 15, 1975 and sought to utilise the said period for the construction of other enabling works.(g) the finding of the arbitrators about the delay in handing over the site to the contractor is wrong.(h) the arbitrators have committed a fundamental error in awarding damages on account of alleged delay in carrying out the measurements prior to the work being started without going into the question whether the claimant suffered any loss on account of any such delay. In this connection, it is also alleged that the arbitrators have not recorded any finding that the target was ever completed or exceeded by the contractor in any of the working seasons, and in the absence of such evidence and in view of evidence to the contrary, there was no question that the claimant had suffered any loss as a result of any delay in getting the measurement done for being able to start work on the site in his possession.(i) there is no material on record that the claimant ever sought measurement of particular site but the same was delayed and refused by the appellant.(j) that the finding of the arbitrators that there was a delay on the part of the State in supplying the material is erroneous and contrary to the records and arbitrators have failed to take into account special conditions to which the materials were to be supplied by the States on availability. In the absence of any evidence produced by the claimant that as a result of delay in supplying the materials, the construction work was held up and the claimant had suffered loss, the award of damages on the basis of the finding of about non supply of materials in time, tantamounts to an error apparent on record.(k) that the actual proof of loss suffered by the claimant is sine-quo non for award of damages and in the absence of finding of actual loss suffered by the claimants, the award of damages is patently erroneous. In this connection, it has been urged that the arbitrators have misused the letters of Chief Engineer with regard to shortage of gelatin (Ex.R-148). It is contended that the letter of the engineer was written in the context of future requirement of entire project but the same did not deal with the requirement of the contractor.(l) the statement with regard to the shortage of cement referred by Shri Anklesaria has also been read out of context. The arbitrators in recording the finding of delay in supplying the cement ignored the plea of the appellant in the written statement and there was not even one incident to show that on account of non availability of cement, the claimants work suffered.(m) the finding of the arbitrator that the claimant was entitled to extension has been assailed by contending that the arbitrators failed to take into account the plea of the appellant raised at page 164 Vol. II of the written submissions that the claimant had failed to apply for extension of time within the stipulated period as per clause 5 and has also failed to give cogent reason for extension.23. After considering the respective contentions of the parties and submissions made by the learned Counsel of the parties and the award impugned, it appears to us that the arbitrators have not taken into consideration any matter outside the scope of reference. On the basis of agreement between the parties and in terms of the nomination of the respective arbitrator by the parties, the dispute and differences covered by the written agreement had been referred for arbitration by the said arbitrators. It is nobodys case that the arbitrators are incompetent to enter upon the reference. It is also not the case of the either of the parties that any extraneous matter has been taken into consideration by the arbitrators. There is also no allegation that reasonable opportunity of being heard has not been given to either of the parties by the arbitrators or the arbitrators have considered any document behind the back of any party. It prima facie appears to us that in basing the findings in the award, the arbitrators have referred to and relied upon the materials on record and it cannot be reasonably contended that there was no basis whatsoever to base the findings made by the arbitrators upon consideration of the materials on record.24. In our view, the appellant has failed to demonstrate any finding made by the arbitrator is either fanciful or not referable to be materials on record. What has been sought to be contended by the appellant is that the arbitrators have failed to properly appreciate various clauses of the agreement between the parties relating to the project of Mahi Bajaj sagar Dam. The appellant has also contended that the evidence given by Shri Anklesaria has been misappreciated, misunderstood and has been appreciated out of context. The arbitrators have considered the deposition of Sri Anklesaria and reports of the Chief Engineers out of their context and on misappreciation and misreading of the materials on record, the erroneous findings are arrived at.25. The arbitrator is the final arbiter for the dispute between the parties and it is not open to challenge the award on the ground that the arbitrator has drawn his own conclusion or has failed to appreciate the facts. In Sudarshan Trading Co. v. Government of Kerala and Anr. reported in [1989]1SCR665 it has been held this Court that there is a distinction between disputes as to the jurisdiction of the arbitrator and the disputes as to in what way that jurisdiction should be exercised. There may be a conflict as to the power of the arbitrator to grant a particular remedy. One has to determine the distinction between an error within the jurisdiction and an error in excess of the jurisdiction. Court cannot substitute its own evaluation of the conclusion of law or fact to come to the conclusion that the arbitrator had acted contrary to the bargain between the parties. (emphasis supplied). Whether a particular amount was liable to be paid is a decision within the competency of the arbitrator. By purporting to construe the contract the Court cannot taken upon itself the burden of saying that this was contrary to the contract and as such beyond jurisdiction. If on a view taken of a contract, the decision of the arbitrator on certain amounts awarded is a possible view though perhaps not the only correct view, the award cannot be examined by the Court. Where the reasons have been given by the arbitrator in making the award the Court cannot examine the reasonableness of the reasons. If the parties have selected their own forum, the deciding forum must be conceded the power of appraisement of evidence. The arbitrator is the sole judge of the quality as well as the quantity of evidence and it will be for the court to take upon itself the task of being a judge on the evidence before the arbitrator.28. It may also be mentioned here in that it is not necessary to indicate in the award computation made for various heads and it is open to the arbitrator to give a lumpsum award. In this connection, reference may be made to the decisions made in State of Rajasthan v. R.S. Sharma and Co. reported in (1988)4SCC353 and in State of Orissa and Ors. v. Lall Brothers reported in AIR1988SC2018 and in Firm Madanlal Roshanlal Mahajan v. Hukumchand Mills Ltd. Indore reported in [1967]1SCR10529. In the State of Orissa v. Lall Brothers (supra) it has been held that an award is conclusive as a judgment between the parties and the court is entitled to set aside an award only if the arbitrator has misconducted himself in the proceedings or when the award has been made after the issue of an order by the Court superseding the arbitration or after arbitration proceedings have become invalid under Section 35 of the Arbitration Act or where an award has been improperly procured or is otherwise invalid under Section 30 of the Act. An award may be set aside by the Court on the ground of error on the fact of award, but an award is not invalid merely because by a process of inference and argument, it may be demonstrated that the arbitrator has committed some mistake in arriving at his conclusion (emphasis supplied).31. The contentions about factual errors and omissions apparent on the face of record as raised in the written argument are essentially errors and omissions in not properly considering the materials on record, in misreading and misconstruing such materials and consideration of some documents and statements out of their contexts. The arbitrators have given the award by referring to various documents and statements available on record and indicating the reasons for basing the findings. Even if it is assumed that on the materials on record, a different view could have been taken and the arbitrators have failed to consider the document and materials on record in their proper perspective, the award is not liable to be struck down in view of judicial decisions referred to hereinbefore. Error apparent on the face of the record does not mean that on closer scrutiny of the import of documents and material on record, the finding made by the arbitrator may be held to be erroneous. Judicial decisions over the decades have indicated that an error of law or fact committed by an arbitrator by itself does not constitute misconduct warranting interference with the award. It does not appear to us that the findings made by the arbitrators are without any basis whatsoever and are not referable to documents relied upon and such findings are so patently unjust or perverse that no reasonable man could have arrived to such findings. Hence, on the score of alleged misreading, misconstruction, misappreciation of the materials on record or failure to consider some of the materials in their proper perspective, the impugned award is not liable to be set aside. It has been urged that computation of lump sum damage in the absence of any material showing actual loss suffered by the contractor is patently unjust and improper warranting interference by this Court. Lump sum award by itself is not illegal as held a number of decisions of this Court. The contractors case was that because of delay in handing over the site and for non supply or delayed supply of materials essential for the construction work thereby putting obstacles and hindrances to execute the work within the stipulated time and ultimately repudiating the contract and seizing machineries etc. of the contractors, he not only suffered huge loss but was practically reduced to bankruptcy. It is the case of the contractor that on account of illegal seizure of costly machineries by the appellant, he was prevented from undertaking other works of contract, A part of machineries seized by the appellant have been sold for Rs. 20 lakhs. In the award, the arbitrators have recorded that the appellant admitted that the remaining machineries would cost about Rs. 5 lakhs. That apart, constructions of labour quarters, laying of roads etc. at substantial cost incurred by the contractor have been utilised by the appellant after repudiation of contact. It may be stated here that the first part of construct work of Mahi Bajaj Sagar Dam was given to M/s. R.S. Sharma. A lump sum award of Rs. 75,41,755 was awarded in favour of M/s. R.S. Sharma. The machineries of M/s. Sharma were not seized by the appellant. Such lump sum award of more than Rs. 75 lakhs without indicating how such quantum was determined has been upheld by this Court and the decision is reported in State of Rajasthan v. R.S. Sharma & Co. (supra). The respondent contractor has urged that the machineries including those seized and sold at depreciated value will now cost about 2.5 crores of rupees. Considering the magnitude of work involving costly machineries and materials, if the two arbitrators in their wide experience have quantified the total damage and has given the award for Rs. 1 crore in favour of the respondent, it cannot be held that such award is so patently unjust and irrational and shocking to the conscience of the court, that the same should be interfered with. As already indicated, in the case of other contractor concerning first part of the work in Mahi Bajaj Sagar Dam, namely, R.S. Sharma & Co. the arbitrators quantified damages to the extent of over Rs. 75 lakhs without indicating how such damages had been quantified. But challenge to such award by the State of Rajasthan failed and the award has been upheld by this Court.32. We are now left with the claim of further interest besides the interest awarded by the arbitrators in favour of the respondent on the said sum of Rs. 1 crore @ 15% per annum from September 30, 1986 till the date of payment of decree whichever is earlier.33. The Constitution Bench has pointed out that over the years, the English and Indian Courts have acted on the assumption that where the agreement does not prohibit and a party to the reference makes a claim for interest, the arbitrator must have the power to award interest pendente lite and until Jena case, almost all the courts in the country had upheld the power of the arbitrator to award interest pendente lite. It has also been indicated in the said Constitution Bench decision that the interest pendente lite is not a matter of substantive law, like interest for the period anterior to reference (pre-reference period). For doing complete justice between the parties, such power has always been inferred.34. In the case of Santosh Singh Arora v. Union of India reported in AIR1992SC1809 , relying on the said Constitution Bench decision in G.C. Roys case, this Court held that the appellant in the said case was entitled to be compensated for denial of his legitimate dues. This Court has allowed interest from December 18, 1968 when the arbitrator was named and not from November 21, 1983 when the matter was referred to the arbitration of Shri Justice A.C. Gupta. The respondent has claimed that interest be awarded from February 24, 1979 or from May 30, 1979 that is the date of the breach and the award should be modified and decreed on that basis by allowing interest @ 18% per annum. | 0 | 10,117 | 3,808 | ### Instruction:
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reappraise the evidence intrinsically with a close scrutiny for finding out that the conclusion drawn from some facts, by the arbitrator is, according to the understanding of the court, erroneous. Such exercise of power which can be exercised by an appellate court with power to reverse the finding of fact, is alien to scope and ambit of challenge of an award under the Arbitration Act. Where the error of finding of facts having a bearing on the award is patent and is easily demonstrable without the necessity of carefully weighing the various possible view points, the interference with award based on erroneous finding of fact is permissible. Similarly, if an award is based by applying a principle of law which is patently erroneous and but for such erroneous application of legal principle, the award could have been made, such award is liable to be aside by holding that there has been legal misconduct on the part of the arbitrator. In ultimate analysis, it is a question of delicate balancing between the permissible limit of error of law and fact and patently erroneous finding easily demonstrable from the materials on record and application of principle of law forming the basis of the award which is patently erroneous. It may be indicated here that however objectively the problem may be viewed, the subjective element inherent in the judge deciding the problem, is bound to creep in and influence the decision. By long training in the art of dispassionate analysis, such subjective element is, however, reduced to minimum. Keeping the aforesaid principle in mind, the challenge to the validity of the impugned award is to be considered with reference to judicial decisions on the subject. 31. The contentions about factual errors and omissions apparent on the face of record as raised in the written argument are essentially errors and omissions in not properly considering the materials on record, in misreading and misconstruing such materials and consideration of some documents and statements out of their contexts. The arbitrators have given the award by referring to various documents and statements available on record and indicating the reasons for basing the findings. Even if it is assumed that on the materials on record, a different view could have been taken and the arbitrators have failed to consider the document and materials on record in their proper perspective, the award is not liable to be struck down in view of judicial decisions referred to hereinbefore. Error apparent on the face of the record does not mean that on closer scrutiny of the import of documents and material on record, the finding made by the arbitrator may be held to be erroneous. Judicial decisions over the decades have indicated that an error of law or fact committed by an arbitrator by itself does not constitute misconduct warranting interference with the award. It does not appear to us that the findings made by the arbitrators are without any basis whatsoever and are not referable to documents relied upon and such findings are so patently unjust or perverse that no reasonable man could have arrived to such findings. Hence, on the score of alleged misreading, misconstruction, misappreciation of the materials on record or failure to consider some of the materials in their proper perspective, the impugned award is not liable to be set aside. It has been urged that computation of lump sum damage in the absence of any material showing actual loss suffered by the contractor is patently unjust and improper warranting interference by this Court. Lump sum award by itself is not illegal as held a number of decisions of this Court. The contractors case was that because of delay in handing over the site and for non supply or delayed supply of materials essential for the construction work thereby putting obstacles and hindrances to execute the work within the stipulated time and ultimately repudiating the contract and seizing machineries etc. of the contractors, he not only suffered huge loss but was practically reduced to bankruptcy. It is the case of the contractor that on account of illegal seizure of costly machineries by the appellant, he was prevented from undertaking other works of contract, A part of machineries seized by the appellant have been sold for Rs. 20 lakhs. In the award, the arbitrators have recorded that the appellant admitted that the remaining machineries would cost about Rs. 5 lakhs. That apart, constructions of labour quarters, laying of roads etc. at substantial cost incurred by the contractor have been utilised by the appellant after repudiation of contact. It may be stated here that the first part of construct work of Mahi Bajaj Sagar Dam was given to M/s. R.S. Sharma. A lump sum award of Rs. 75,41,755 was awarded in favour of M/s. R.S. Sharma. The machineries of M/s. Sharma were not seized by the appellant. Such lump sum award of more than Rs. 75 lakhs without indicating how such quantum was determined has been upheld by this Court and the decision is reported in State of Rajasthan v. R.S. Sharma & Co. (supra). The respondent contractor has urged that the machineries including those seized and sold at depreciated value will now cost about 2.5 crores of rupees. Considering the magnitude of work involving costly machineries and materials, if the two arbitrators in their wide experience have quantified the total damage and has given the award for Rs. 1 crore in favour of the respondent, it cannot be held that such award is so patently unjust and irrational and shocking to the conscience of the court, that the same should be interfered with. As already indicated, in the case of other contractor concerning first part of the work in Mahi Bajaj Sagar Dam, namely, R.S. Sharma & Co. the arbitrators quantified damages to the extent of over Rs. 75 lakhs without indicating how such damages had been quantified. But challenge to such award by the State of Rajasthan failed and the award has been upheld by this Court.
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### Explanation:
and omissions apparent on the face of record as raised in the written argument are essentially errors and omissions in not properly considering the materials on record, in misreading and misconstruing such materials and consideration of some documents and statements out of their contexts. The arbitrators have given the award by referring to various documents and statements available on record and indicating the reasons for basing the findings. Even if it is assumed that on the materials on record, a different view could have been taken and the arbitrators have failed to consider the document and materials on record in their proper perspective, the award is not liable to be struck down in view of judicial decisions referred to hereinbefore. Error apparent on the face of the record does not mean that on closer scrutiny of the import of documents and material on record, the finding made by the arbitrator may be held to be erroneous. Judicial decisions over the decades have indicated that an error of law or fact committed by an arbitrator by itself does not constitute misconduct warranting interference with the award. It does not appear to us that the findings made by the arbitrators are without any basis whatsoever and are not referable to documents relied upon and such findings are so patently unjust or perverse that no reasonable man could have arrived to such findings. Hence, on the score of alleged misreading, misconstruction, misappreciation of the materials on record or failure to consider some of the materials in their proper perspective, the impugned award is not liable to be set aside. It has been urged that computation of lump sum damage in the absence of any material showing actual loss suffered by the contractor is patently unjust and improper warranting interference by this Court. Lump sum award by itself is not illegal as held a number of decisions of this Court. The contractors case was that because of delay in handing over the site and for non supply or delayed supply of materials essential for the construction work thereby putting obstacles and hindrances to execute the work within the stipulated time and ultimately repudiating the contract and seizing machineries etc. of the contractors, he not only suffered huge loss but was practically reduced to bankruptcy. It is the case of the contractor that on account of illegal seizure of costly machineries by the appellant, he was prevented from undertaking other works of contract, A part of machineries seized by the appellant have been sold for Rs. 20 lakhs. In the award, the arbitrators have recorded that the appellant admitted that the remaining machineries would cost about Rs. 5 lakhs. That apart, constructions of labour quarters, laying of roads etc. at substantial cost incurred by the contractor have been utilised by the appellant after repudiation of contact. It may be stated here that the first part of construct work of Mahi Bajaj Sagar Dam was given to M/s. R.S. Sharma. A lump sum award of Rs. 75,41,755 was awarded in favour of M/s. R.S. Sharma. The machineries of M/s. Sharma were not seized by the appellant. Such lump sum award of more than Rs. 75 lakhs without indicating how such quantum was determined has been upheld by this Court and the decision is reported in State of Rajasthan v. R.S. Sharma & Co. (supra). The respondent contractor has urged that the machineries including those seized and sold at depreciated value will now cost about 2.5 crores of rupees. Considering the magnitude of work involving costly machineries and materials, if the two arbitrators in their wide experience have quantified the total damage and has given the award for Rs. 1 crore in favour of the respondent, it cannot be held that such award is so patently unjust and irrational and shocking to the conscience of the court, that the same should be interfered with. As already indicated, in the case of other contractor concerning first part of the work in Mahi Bajaj Sagar Dam, namely, R.S. Sharma & Co. the arbitrators quantified damages to the extent of over Rs. 75 lakhs without indicating how such damages had been quantified. But challenge to such award by the State of Rajasthan failed and the award has been upheld by this Court.32. We are now left with the claim of further interest besides the interest awarded by the arbitrators in favour of the respondent on the said sum of Rs. 1 crore @ 15% per annum from September 30, 1986 till the date of payment of decree whichever is earlier.33. The Constitution Bench has pointed out that over the years, the English and Indian Courts have acted on the assumption that where the agreement does not prohibit and a party to the reference makes a claim for interest, the arbitrator must have the power to award interest pendente lite and until Jena case, almost all the courts in the country had upheld the power of the arbitrator to award interest pendente lite. It has also been indicated in the said Constitution Bench decision that the interest pendente lite is not a matter of substantive law, like interest for the period anterior to reference (pre-reference period). For doing complete justice between the parties, such power has always been inferred.34. In the case of Santosh Singh Arora v. Union of India reported in AIR1992SC1809 , relying on the said Constitution Bench decision in G.C. Roys case, this Court held that the appellant in the said case was entitled to be compensated for denial of his legitimate dues. This Court has allowed interest from December 18, 1968 when the arbitrator was named and not from November 21, 1983 when the matter was referred to the arbitration of Shri Justice A.C. Gupta. The respondent has claimed that interest be awarded from February 24, 1979 or from May 30, 1979 that is the date of the breach and the award should be modified and decreed on that basis by allowing interest @ 18% per annum.
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Jai Balaji Industries Ltd Vs. Pec Ltd | in the list seven weeks hence." 11. Aggrieved thereby, the Respondent No.1 herein preferred APOT No.235 of 2009 and APOT No.249 of 2009 before the Division Bench of the Calcutta High Court and the same were disposed of finally by the Appeal Court by its order dated 1st September, 2009, extracted hereinabove, whereby the order of the learned Single Judge was set aside and replaced by the said order. 12. As mentioned hereinbefore, these appeals are directed against the said order of the Division Bench of the Calcutta High Court. 13. On behalf of the appellants it has been contended that under the High Seas Sale Agreement, the Respondent No.1 was to endorse the Bill of Lading in favour of the appellant, but that the same was never done and the consignment of Manganese Ore was never made over to the appellant and has remained in the custody of the Respondent No.1 ever since it was discharged at Paradeep Port. It was also submitted that after having purchased 100 metric tonnes of the said ore for the purpose of testing, when it was found that the same was sub-standard material, the appellant had expressed its inability to accept the consignment. It was also submitted that without delivering the consignment, the Respondent No.1 was not entitled to encash the cheques, which had been made over to it by way of security deposit. 14. It was lastly contended that the appellant had no obligation to take delivery of the entire goods since the Agreement provided that the goods were to be delivered part-by-part. 15. The case made on behalf of the appellant was vehemently opposed on behalf of the Respondent No.1 on the ground that the High Seas Sale Agreement was merely a means of import of the said ore into India by the appellant and the Respondent No.1 was merely a facilitator for the said purpose. In fact, the role of the Respondent No.1 was to import the goods and, thereafter, to make over the same to the Appellant as it had no use for the Manganese Ore. In fact, the same would be evidenced by the Deed of Pledge, whereby the goods continued to be in the control and possession of the Respondent No.1 till the same were delivered to the appellant. It was also the case of the Respondent No.1 that the consignment of Manganese Ore had always been with the appellant in its own godown and that the Bill of Lading had also been endorsed in favour of the appellant, whereupon the title to the goods had passed to the appellant. 16. From the submissions made on behalf of the parties, it will appear that the appellant is aggrieved by the fact that besides having paid a sum of Rs.20,31,25,856/- by a postdated cheque to the Respondent No.1, the appellant had also been deprived of the goods, the value whereof had greatly diminished since it was received at Paradeep Port on or about 8th October, 2008. On the other hand, not only would the Respondent No.1 retain control over the consignment but it would also have unjustly enriched itself to the extent of the security provided by the appellant in terms of the order of the High Court impugned in these appeals. 17. In deciding these appeals, we have to keep in mind the fact that the suit is still pending before the Calcutta High Court and the rights and liabilities of the parties are yet to be worked out in the suit. The question whether the Bill of Lading had been endorsed in favour of the appellant or not by the Respondent No.1 is also a matter to be decided in the suit on evidence. Furthermore, the appellant has itself indicated that it was not willing to accept the consignment since it was of sub-standard quality and had deteriorated further since it was discharged at Paradeep Port. As has been pointed out by the learned Single Judge in her order of 12th June, 2009, the appellant in its undertaking had agreed to pay the balance amount in respect of the imported goods on their first demand without demur and protest and to honour the cheques issued in favour of the Respondent No.1 on their presentation on the dates indicated. Furthermore, a further undertaking was given not to intimate the bankers to stop the payment of the cheques delivered to the Respondent No.1 and also not to close the account without the permission of the Respondent No.1. 18. On a prima facie assessment of the terms and conditions of the Agreement entered into between the appellant and the Respondent No.1 on 7th August, 2008, the responsibility relating to the quantity and quality of the cargo was to be that of the appellant and Clause 8 of the said Agreement indicates that the Respondent No.1 would not be responsible for any shortage in the quantity and quality of the cargo at the loading point as well as at the delivery point. Nothing has come to our notice whereby the Respondent No.1 was prevented from encashing the cheques alleged to have been given by way of security. 19. In our view, it would not be proper for us to delve into the details of the matter at this stage since the order of the Division Bench in appeal protects the appellant, while granting liberty to the Respondent No.1 to encash the cheques and appropriate the amount upon furnishing a Bank Guarantee of the like amount which was to be kept renewed till the disposal of the suit. Furthermore, the goods in question are to be sold by the Receiver appointed by the Court and the sale proceeds have been directed to be handed over to the appellant herein. Balance claims, if any, will have to be decided in the suit filed by the appellant. Apart from the above, it has also to be kept in mind that the Respondent No.1 has already paid for the goods to the foreign buyer. | 0[ds]16. From the submissions made on behalf of the parties, it will appear that the appellant is aggrieved by the fact that besides having paid a sum of Rs.20,31,25,856/by a postdated cheque to the Respondent No.1, the appellant had also been deprived of the goods, the value whereof had greatly diminished since it was received at Paradeep Port on or about 8th October, 2008. On the other hand, not only would the Respondent No.1 retain control over the consignment but it would also have unjustly enriched itself to the extent of the security provided by the appellant in terms of the order of the High Court impugned in these appeals17. In deciding these appeals, we have to keep in mind the fact that the suit is still pending before the Calcutta High Court and the rights and liabilities of the parties are yet to be worked out in the suit.The question whether the Bill of Lading had been endorsed in favour of the appellant or not by the Respondent No.1 is also a matter to be decided in the suit on evidence.Furthermore, the appellant has itself indicated that it was not willing to accept the consignment since it was ofd quality and had deteriorated further since it was discharged at Paradeep Port. As has been pointed out by the learned Single Judge in her order of 12th June, 2009, the appellant in its undertaking had agreed to pay the balance amount in respect of the imported goods on their first demand without demur and protest and to honour the cheques issued in favour of the Respondent No.1 on their presentation on the dates indicated. Furthermore, a further undertaking was given not to intimate the bankers to stop the payment of the cheques delivered to the Respondent No.1 and also not to close the account without the permission of the Respondent No.118. On a prima facie assessment of the terms and conditions of the Agreement entered into between the appellant and the Respondent No.1 on 7th August, 2008, the responsibility relating to the quantity and quality of the cargo was to be that of the appellant and Clause 8 of the said Agreement indicates that the Respondent No.1 would not be responsible for any shortage in the quantity and quality of the cargo at the loading point as well as at the delivery point. Nothing has come to our notice whereby the Respondent No.1 was prevented from encashing the cheques alleged to have been given by way of security19. In our view, it would not be proper for us to delve into the details of the matter at this stage since the order of the Division Bench in appeal protects the appellant, while granting liberty to the Respondent No.1 to encash the cheques and appropriate the amount upon furnishing a Bank Guarantee of the like amount which was to be kept renewed till the disposal of the suit. Furthermore, the goods in question are to be sold by the Receiver appointed by the Court and the sale proceeds have been directed to be handed over to the appellant herein. Balance claims, if any, will have to be decided in the suit filed by the appellant. Apart from the above, it has also to be kept in mind that the Respondent No.1 has already paid for the goods to the foreign buyer. | 0 | 2,621 | 594 | ### 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:
in the list seven weeks hence." 11. Aggrieved thereby, the Respondent No.1 herein preferred APOT No.235 of 2009 and APOT No.249 of 2009 before the Division Bench of the Calcutta High Court and the same were disposed of finally by the Appeal Court by its order dated 1st September, 2009, extracted hereinabove, whereby the order of the learned Single Judge was set aside and replaced by the said order. 12. As mentioned hereinbefore, these appeals are directed against the said order of the Division Bench of the Calcutta High Court. 13. On behalf of the appellants it has been contended that under the High Seas Sale Agreement, the Respondent No.1 was to endorse the Bill of Lading in favour of the appellant, but that the same was never done and the consignment of Manganese Ore was never made over to the appellant and has remained in the custody of the Respondent No.1 ever since it was discharged at Paradeep Port. It was also submitted that after having purchased 100 metric tonnes of the said ore for the purpose of testing, when it was found that the same was sub-standard material, the appellant had expressed its inability to accept the consignment. It was also submitted that without delivering the consignment, the Respondent No.1 was not entitled to encash the cheques, which had been made over to it by way of security deposit. 14. It was lastly contended that the appellant had no obligation to take delivery of the entire goods since the Agreement provided that the goods were to be delivered part-by-part. 15. The case made on behalf of the appellant was vehemently opposed on behalf of the Respondent No.1 on the ground that the High Seas Sale Agreement was merely a means of import of the said ore into India by the appellant and the Respondent No.1 was merely a facilitator for the said purpose. In fact, the role of the Respondent No.1 was to import the goods and, thereafter, to make over the same to the Appellant as it had no use for the Manganese Ore. In fact, the same would be evidenced by the Deed of Pledge, whereby the goods continued to be in the control and possession of the Respondent No.1 till the same were delivered to the appellant. It was also the case of the Respondent No.1 that the consignment of Manganese Ore had always been with the appellant in its own godown and that the Bill of Lading had also been endorsed in favour of the appellant, whereupon the title to the goods had passed to the appellant. 16. From the submissions made on behalf of the parties, it will appear that the appellant is aggrieved by the fact that besides having paid a sum of Rs.20,31,25,856/- by a postdated cheque to the Respondent No.1, the appellant had also been deprived of the goods, the value whereof had greatly diminished since it was received at Paradeep Port on or about 8th October, 2008. On the other hand, not only would the Respondent No.1 retain control over the consignment but it would also have unjustly enriched itself to the extent of the security provided by the appellant in terms of the order of the High Court impugned in these appeals. 17. In deciding these appeals, we have to keep in mind the fact that the suit is still pending before the Calcutta High Court and the rights and liabilities of the parties are yet to be worked out in the suit. The question whether the Bill of Lading had been endorsed in favour of the appellant or not by the Respondent No.1 is also a matter to be decided in the suit on evidence. Furthermore, the appellant has itself indicated that it was not willing to accept the consignment since it was of sub-standard quality and had deteriorated further since it was discharged at Paradeep Port. As has been pointed out by the learned Single Judge in her order of 12th June, 2009, the appellant in its undertaking had agreed to pay the balance amount in respect of the imported goods on their first demand without demur and protest and to honour the cheques issued in favour of the Respondent No.1 on their presentation on the dates indicated. Furthermore, a further undertaking was given not to intimate the bankers to stop the payment of the cheques delivered to the Respondent No.1 and also not to close the account without the permission of the Respondent No.1. 18. On a prima facie assessment of the terms and conditions of the Agreement entered into between the appellant and the Respondent No.1 on 7th August, 2008, the responsibility relating to the quantity and quality of the cargo was to be that of the appellant and Clause 8 of the said Agreement indicates that the Respondent No.1 would not be responsible for any shortage in the quantity and quality of the cargo at the loading point as well as at the delivery point. Nothing has come to our notice whereby the Respondent No.1 was prevented from encashing the cheques alleged to have been given by way of security. 19. In our view, it would not be proper for us to delve into the details of the matter at this stage since the order of the Division Bench in appeal protects the appellant, while granting liberty to the Respondent No.1 to encash the cheques and appropriate the amount upon furnishing a Bank Guarantee of the like amount which was to be kept renewed till the disposal of the suit. Furthermore, the goods in question are to be sold by the Receiver appointed by the Court and the sale proceeds have been directed to be handed over to the appellant herein. Balance claims, if any, will have to be decided in the suit filed by the appellant. Apart from the above, it has also to be kept in mind that the Respondent No.1 has already paid for the goods to the foreign buyer.
### Response:
0
### Explanation:
16. From the submissions made on behalf of the parties, it will appear that the appellant is aggrieved by the fact that besides having paid a sum of Rs.20,31,25,856/by a postdated cheque to the Respondent No.1, the appellant had also been deprived of the goods, the value whereof had greatly diminished since it was received at Paradeep Port on or about 8th October, 2008. On the other hand, not only would the Respondent No.1 retain control over the consignment but it would also have unjustly enriched itself to the extent of the security provided by the appellant in terms of the order of the High Court impugned in these appeals17. In deciding these appeals, we have to keep in mind the fact that the suit is still pending before the Calcutta High Court and the rights and liabilities of the parties are yet to be worked out in the suit.The question whether the Bill of Lading had been endorsed in favour of the appellant or not by the Respondent No.1 is also a matter to be decided in the suit on evidence.Furthermore, the appellant has itself indicated that it was not willing to accept the consignment since it was ofd quality and had deteriorated further since it was discharged at Paradeep Port. As has been pointed out by the learned Single Judge in her order of 12th June, 2009, the appellant in its undertaking had agreed to pay the balance amount in respect of the imported goods on their first demand without demur and protest and to honour the cheques issued in favour of the Respondent No.1 on their presentation on the dates indicated. Furthermore, a further undertaking was given not to intimate the bankers to stop the payment of the cheques delivered to the Respondent No.1 and also not to close the account without the permission of the Respondent No.118. On a prima facie assessment of the terms and conditions of the Agreement entered into between the appellant and the Respondent No.1 on 7th August, 2008, the responsibility relating to the quantity and quality of the cargo was to be that of the appellant and Clause 8 of the said Agreement indicates that the Respondent No.1 would not be responsible for any shortage in the quantity and quality of the cargo at the loading point as well as at the delivery point. Nothing has come to our notice whereby the Respondent No.1 was prevented from encashing the cheques alleged to have been given by way of security19. In our view, it would not be proper for us to delve into the details of the matter at this stage since the order of the Division Bench in appeal protects the appellant, while granting liberty to the Respondent No.1 to encash the cheques and appropriate the amount upon furnishing a Bank Guarantee of the like amount which was to be kept renewed till the disposal of the suit. Furthermore, the goods in question are to be sold by the Receiver appointed by the Court and the sale proceeds have been directed to be handed over to the appellant herein. Balance claims, if any, will have to be decided in the suit filed by the appellant. Apart from the above, it has also to be kept in mind that the Respondent No.1 has already paid for the goods to the foreign buyer.
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