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THE CONSERVATOR AND CUSTODIAN OF FOREST & ORS Vs. SOBHA JOHN KOSHY & ANR | Forest Officer had informed the Conservator of Forests that owners suggested that they are prepared to accept the compensation for the land. The High Court informed that a communication has been received from the Tehsildar of the District Collector, Wayanad where Tehsildar has assessed the value of the land as Rs. 1000/- per cent covered by O.A. No. 67 of 1976 and Rs. 800/- per cent of the land covered by O.A. No.68 of 1975. The learned Single Judge, thus, allowed the writ petition directing payment of compensation as per computation by the Tehsildar. 9. We need now to consider the consequence of subject land being notified under Act, 2003. Under Section 2(b), ecologically fragile lands has been defined. As per Section 3, ecologically fragile land is to vest in the Government. Section 3 is as follows:- 3. Ecologically fragile land to vest in Government: - (1) Notwithstanding anything contained in any other law for the time being in force, or in any judgment, decree or order of any Court or Tribunal or in any custom, contract or other documents, with effect from the date of commencement of this Act, the ownership and possession of all ecologically fragile lands held by any person or any other form of right over them, shall stand transferred to and vested in the Government free from all encumbrances and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date. (2) The lands vested in the Government under sub-section (1) shall be notified in the Gazette and the owner shall be informed in writing by the custodian and the notification shall be placed before the Advisory Committee constituted under section 15 for perusal. 10. Section 4 further empowers the Government to declare ecologically fragile land. There is no dispute in the present case that a notification has already been issued notifying the subject land as ecologically fragile land vide notification published on 12.03.2007. Although, learned counsel for the respondents contend that subject land is not ecologically fragile land and is not covered by definition of forest land under Act, 2003 but in view of the fact that the notification dated 12.03.2007 being not under challenge, we need not dwell on the question any further. In these proceedings, it has been submitted by the respondents that neither they are challenging the validity of vires of Act, 2003 nor they are challenging the notification dated 12.03.2007. We, thus, have no option but to accept that subject land is ecologically fragile land and is now vested in the Government. 11. Learned senior counsel for the appellant is also right in his submission that as per Section 8 of the Act, 2003 in respect of land, which is vested in the Government under Section 3(1) of The Act, 2003, no compensation is payable. The present is a case where the respondents claim is not based on any compensation under the Act, 2003. The learned Single Judge directed for payment of compensation to the respondents in view of adjudication under Act, 1971 where it was held after prolonged litigation that land is not covered by Act, 1971 and the respondents are the owner of the land, entitled to restoration of possession to the respondents. The State being the custodian having not been able to restore the possession, two alternatives were suggested by Forest Officer themselves, first, of allotment of alternative land and second for payment of compensation. The valuation of the land was done by the Tehsildar in the above context. 12. It is also relevant to notice that the learned Single Judge directed for compensation as an alternative for not being able to restore the possession to the respondents. The very same land having been declared as ecologically fragile land under Act, 2003, the right and entitlement of the respondents to the land is lost in view of Section 3 of Act, 2003 as extracted above. But right on land lost by the respondents under Act, 2003 shall in no manner wipe out their right to enjoy the possession and yield of the land during the period prior to 2003 enactment, which right was held to be established by the High Court vide its judgment dated 10.02.1998 as noticed above. Due to the claim of the State that subject land vests in the Government under Act, 1971, the respondents were deprived of the possession and enjoyment of land. After 1971, they were kept out of possession of the property and denied the enjoyment of land. It is just and proper that even if the respondents are not compensated for the value of the land, they need to be compensated for the benefits arisen out of the lands for the period they were kept out of possession by action of the respondents, treating it to be vested land under Act, 1971, which did not find favour by the High Court. 13. On our enquiry from learned counsel for the parties, as to whether there are any material on record to determine the computation of yield and benefits arising of the land, both the counsel have very candidly admitted that there are no material on the record to determine the benefits arising out of the land during the period the respondents were deprived the enjoyment of the possession. As noted above, the litigation with regard to said land has continued for at-least for last 45 years and we are of the view that in the facts of the present case, the parties need not to be relegated to any other Forum for determination of compensation with regard to benefits of the land to which they were entitled during the period they were deprived of the possession. 14. We are of the view that the ends of justice be met by allowing the claim of compensation to the respondents to the extent of 50% of value of the land as computed by Tehsildar and noted in the judgment of learned Single Judge. | 0[ds]7. From the facts noticed above, it is undisputed that the subject land, which was claimed to be vested with the Government under Act, 1971 was not ultimately accepted and Kerala High Court allowed the objection of the land owners declaring that land is not covered under the Act, 1971 and has been exempted from Act, 1971.8. The order of the Forest Tribunal was set aside. Result of the judgment of the High Court was that the respondents were entitled for immediate restoration of their land. Further, there is no dispute that land could not be restored to the respondents and some alternative proposals were submitted including allotment of alternative land at three different places. Allotment of alternative land was not possible as was communicated by Forest authorities. Divisional Forest Officer had informed the Conservator of Forests that owners suggested that they are prepared to accept the compensation for the land. The High Court informed that a communication has been received from the Tehsildar of the District Collector, Wayanad where Tehsildar has assessed the value of the land as Rs. 1000/- per cent covered by O.A. No. 67 of 1976 and Rs. 800/- per cent of the land covered by O.A. No.68 of 1975. The learned Single Judge, thus, allowed the writ petition directing payment of compensation as per computation by the Tehsildar.As per Section 3, ecologically fragile land is to vest in the Government.10. Section 4 further empowers the Government to declare ecologically fragile land. There is no dispute in the present case that a notification has already been issued notifying the subject land as ecologically fragile land vide notification published on 12.03.2007. Although, learned counsel for the respondents contend that subject land is not ecologically fragile land and is not covered by definition of forest land under Act, 2003 but in view of the fact that the notification dated 12.03.2007 being not under challenge, we need not dwell on the question any further.We, thus, have no option but to accept that subject land is ecologically fragile land and is now vested in the Government.11. Learned senior counsel for the appellant is also right in his submission that as per Section 8 of the Act, 2003 in respect of land, which is vested in the Government under Section 3(1) of The Act, 2003, no compensation is payable. The present is a case where the respondents claim is not based on any compensation under the Act, 2003. The learned Single Judge directed for payment of compensation to the respondents in view of adjudication under Act, 1971 where it was held after prolonged litigation that land is not covered by Act, 1971 and the respondents are the owner of the land, entitled to restoration of possession to the respondents. The State being the custodian having not been able to restore the possession, two alternatives were suggested by Forest Officer themselves, first, of allotment of alternative land and second for payment of compensation. The valuation of the land was done by the Tehsildar in the above context.12. It is also relevant to notice that the learned Single Judge directed for compensation as an alternative for not being able to restore the possession to the respondents. The very same land having been declared as ecologically fragile land under Act, 2003, the right and entitlement of the respondents to the land is lost in view of Section 3 of Act, 2003 as extracted above. But right on land lost by the respondents under Act, 2003 shall in no manner wipe out their right to enjoy the possession and yield of the land during the period prior to 2003 enactment, which right was held to be established by the High Court vide its judgment dated 10.02.1998 as noticed above. Due to the claim of the State that subject land vests in the Government under Act, 1971, the respondents were deprived of the possession and enjoyment of land. After 1971, they were kept out of possession of the property and denied the enjoyment of land. It is just and proper that even if the respondents are not compensated for the value of the land, they need to be compensated for the benefits arisen out of the lands for the period they were kept out of possession by action of the respondents, treating it to be vested land under Act, 1971, which did not find favour by the High Court.13. On our enquiry from learned counsel for the parties, as to whether there are any material on record to determine the computation of yield and benefits arising of the land, both the counsel have very candidly admitted that there are no material on the record to determine the benefits arising out of the land during the period the respondents were deprived the enjoyment of the possession. As noted above, the litigation with regard to said land has continued for at-least for last 45 years and we are of the view that in the facts of the present case, the parties need not to be relegated to any other Forum for determination of compensation with regard to benefits of the land to which they were entitled during the period they were deprived of the possession.14. We are of the view that the ends of justice be met by allowing the claim of compensation to the respondents to the extent of 50% of value of the land as computed by Tehsildar and noted in the judgment of learned Single Judge. | 0 | 2,930 | 992 | ### Instruction:
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Forest Officer had informed the Conservator of Forests that owners suggested that they are prepared to accept the compensation for the land. The High Court informed that a communication has been received from the Tehsildar of the District Collector, Wayanad where Tehsildar has assessed the value of the land as Rs. 1000/- per cent covered by O.A. No. 67 of 1976 and Rs. 800/- per cent of the land covered by O.A. No.68 of 1975. The learned Single Judge, thus, allowed the writ petition directing payment of compensation as per computation by the Tehsildar. 9. We need now to consider the consequence of subject land being notified under Act, 2003. Under Section 2(b), ecologically fragile lands has been defined. As per Section 3, ecologically fragile land is to vest in the Government. Section 3 is as follows:- 3. Ecologically fragile land to vest in Government: - (1) Notwithstanding anything contained in any other law for the time being in force, or in any judgment, decree or order of any Court or Tribunal or in any custom, contract or other documents, with effect from the date of commencement of this Act, the ownership and possession of all ecologically fragile lands held by any person or any other form of right over them, shall stand transferred to and vested in the Government free from all encumbrances and the right, title and interest of the owner or any other person thereon shall stand extinguished from the said date. (2) The lands vested in the Government under sub-section (1) shall be notified in the Gazette and the owner shall be informed in writing by the custodian and the notification shall be placed before the Advisory Committee constituted under section 15 for perusal. 10. Section 4 further empowers the Government to declare ecologically fragile land. There is no dispute in the present case that a notification has already been issued notifying the subject land as ecologically fragile land vide notification published on 12.03.2007. Although, learned counsel for the respondents contend that subject land is not ecologically fragile land and is not covered by definition of forest land under Act, 2003 but in view of the fact that the notification dated 12.03.2007 being not under challenge, we need not dwell on the question any further. In these proceedings, it has been submitted by the respondents that neither they are challenging the validity of vires of Act, 2003 nor they are challenging the notification dated 12.03.2007. We, thus, have no option but to accept that subject land is ecologically fragile land and is now vested in the Government. 11. Learned senior counsel for the appellant is also right in his submission that as per Section 8 of the Act, 2003 in respect of land, which is vested in the Government under Section 3(1) of The Act, 2003, no compensation is payable. The present is a case where the respondents claim is not based on any compensation under the Act, 2003. The learned Single Judge directed for payment of compensation to the respondents in view of adjudication under Act, 1971 where it was held after prolonged litigation that land is not covered by Act, 1971 and the respondents are the owner of the land, entitled to restoration of possession to the respondents. The State being the custodian having not been able to restore the possession, two alternatives were suggested by Forest Officer themselves, first, of allotment of alternative land and second for payment of compensation. The valuation of the land was done by the Tehsildar in the above context. 12. It is also relevant to notice that the learned Single Judge directed for compensation as an alternative for not being able to restore the possession to the respondents. The very same land having been declared as ecologically fragile land under Act, 2003, the right and entitlement of the respondents to the land is lost in view of Section 3 of Act, 2003 as extracted above. But right on land lost by the respondents under Act, 2003 shall in no manner wipe out their right to enjoy the possession and yield of the land during the period prior to 2003 enactment, which right was held to be established by the High Court vide its judgment dated 10.02.1998 as noticed above. Due to the claim of the State that subject land vests in the Government under Act, 1971, the respondents were deprived of the possession and enjoyment of land. After 1971, they were kept out of possession of the property and denied the enjoyment of land. It is just and proper that even if the respondents are not compensated for the value of the land, they need to be compensated for the benefits arisen out of the lands for the period they were kept out of possession by action of the respondents, treating it to be vested land under Act, 1971, which did not find favour by the High Court. 13. On our enquiry from learned counsel for the parties, as to whether there are any material on record to determine the computation of yield and benefits arising of the land, both the counsel have very candidly admitted that there are no material on the record to determine the benefits arising out of the land during the period the respondents were deprived the enjoyment of the possession. As noted above, the litigation with regard to said land has continued for at-least for last 45 years and we are of the view that in the facts of the present case, the parties need not to be relegated to any other Forum for determination of compensation with regard to benefits of the land to which they were entitled during the period they were deprived of the possession. 14. We are of the view that the ends of justice be met by allowing the claim of compensation to the respondents to the extent of 50% of value of the land as computed by Tehsildar and noted in the judgment of learned Single Judge.
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7. From the facts noticed above, it is undisputed that the subject land, which was claimed to be vested with the Government under Act, 1971 was not ultimately accepted and Kerala High Court allowed the objection of the land owners declaring that land is not covered under the Act, 1971 and has been exempted from Act, 1971.8. The order of the Forest Tribunal was set aside. Result of the judgment of the High Court was that the respondents were entitled for immediate restoration of their land. Further, there is no dispute that land could not be restored to the respondents and some alternative proposals were submitted including allotment of alternative land at three different places. Allotment of alternative land was not possible as was communicated by Forest authorities. Divisional Forest Officer had informed the Conservator of Forests that owners suggested that they are prepared to accept the compensation for the land. The High Court informed that a communication has been received from the Tehsildar of the District Collector, Wayanad where Tehsildar has assessed the value of the land as Rs. 1000/- per cent covered by O.A. No. 67 of 1976 and Rs. 800/- per cent of the land covered by O.A. No.68 of 1975. The learned Single Judge, thus, allowed the writ petition directing payment of compensation as per computation by the Tehsildar.As per Section 3, ecologically fragile land is to vest in the Government.10. Section 4 further empowers the Government to declare ecologically fragile land. There is no dispute in the present case that a notification has already been issued notifying the subject land as ecologically fragile land vide notification published on 12.03.2007. Although, learned counsel for the respondents contend that subject land is not ecologically fragile land and is not covered by definition of forest land under Act, 2003 but in view of the fact that the notification dated 12.03.2007 being not under challenge, we need not dwell on the question any further.We, thus, have no option but to accept that subject land is ecologically fragile land and is now vested in the Government.11. Learned senior counsel for the appellant is also right in his submission that as per Section 8 of the Act, 2003 in respect of land, which is vested in the Government under Section 3(1) of The Act, 2003, no compensation is payable. The present is a case where the respondents claim is not based on any compensation under the Act, 2003. The learned Single Judge directed for payment of compensation to the respondents in view of adjudication under Act, 1971 where it was held after prolonged litigation that land is not covered by Act, 1971 and the respondents are the owner of the land, entitled to restoration of possession to the respondents. The State being the custodian having not been able to restore the possession, two alternatives were suggested by Forest Officer themselves, first, of allotment of alternative land and second for payment of compensation. The valuation of the land was done by the Tehsildar in the above context.12. It is also relevant to notice that the learned Single Judge directed for compensation as an alternative for not being able to restore the possession to the respondents. The very same land having been declared as ecologically fragile land under Act, 2003, the right and entitlement of the respondents to the land is lost in view of Section 3 of Act, 2003 as extracted above. But right on land lost by the respondents under Act, 2003 shall in no manner wipe out their right to enjoy the possession and yield of the land during the period prior to 2003 enactment, which right was held to be established by the High Court vide its judgment dated 10.02.1998 as noticed above. Due to the claim of the State that subject land vests in the Government under Act, 1971, the respondents were deprived of the possession and enjoyment of land. After 1971, they were kept out of possession of the property and denied the enjoyment of land. It is just and proper that even if the respondents are not compensated for the value of the land, they need to be compensated for the benefits arisen out of the lands for the period they were kept out of possession by action of the respondents, treating it to be vested land under Act, 1971, which did not find favour by the High Court.13. On our enquiry from learned counsel for the parties, as to whether there are any material on record to determine the computation of yield and benefits arising of the land, both the counsel have very candidly admitted that there are no material on the record to determine the benefits arising out of the land during the period the respondents were deprived the enjoyment of the possession. As noted above, the litigation with regard to said land has continued for at-least for last 45 years and we are of the view that in the facts of the present case, the parties need not to be relegated to any other Forum for determination of compensation with regard to benefits of the land to which they were entitled during the period they were deprived of the possession.14. We are of the view that the ends of justice be met by allowing the claim of compensation to the respondents to the extent of 50% of value of the land as computed by Tehsildar and noted in the judgment of learned Single Judge.
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Mukand Limited Vs. Mukand Staff, Officers Association | Rs. 300 to 400 - A + 40% of the basic above Rs. 3007-c) Rs. 400 to 500 - B + 20% of the basic above Rs. 400/~ d) Rs. 500 and above - B + 10% of the basic above Rs. 5007- In our view this modification is necessitated in order to reduce the financial impact of the grant of Dearness Allowance as aforesaid. Therefore, while we are of the view that the introduction of the slab system of the dearness Allowance is entirely justified, the rates which have been granted should be substituted by a direction as hereinabove. ( 25 ) LEAVE Travel Allowance: we are of the view that the revision of l. T. A. is entirely justified, having regard to the increased cost of all modes of transport, travel and other attendant expenses related thereto. The Tribunal has granted an amount of rs. 2,500/- lump sum plus the respective monthly basic salary as the annual leave travel allowance for Grades 12 to 02. For Grades 01 and 00, the Tribunal has granted a lump sum of Rs. 3,500. 00 plus the respective monthly salary. We affirm the decision and the reasoning of the Tribunal and the learned single judge in this regard. ( 26 ) GRATUITY: in so far as gratuity is concerned, the tribunal has allowed the claim of the workmen for gratuity calculated at the rate of 21 days for every completed year of service. The learned single Judge has noted that the daily rated workmen at Kalwe are paid gratuity at the rate of 21 days of their basic wages plus Dearness allowance under an agreement dated February 15, 1994. The employees covered by in this case. reference were entitled to gratuity of 15 days of their basic wages and dearness allowance under the existing scheme. In this regard, we find a considerable degree of substance in the contention urged by the learned counsel appearing on behalf of the employer that the gratuity scheme at Kalwe is on the basis of a minimum attendance (the requirement is stated to be of 260 days) and of 20 years of service. The award gives a flat rate of gratuity of 21 days to all the employees. The learned counsel submitted that the Tribunal in para 72 in its judgment has ignored the qualification which were prescribed for the Kalwe Unit. Having regard to the aforesaid circumstances and particularly to the statutory provision relating to the payment of gratuity, we are of the view that at the present stage, the gratuity should be maintained as under the existing scheme of 15 days for every completed year of service. ( 27 ) HOUSE Rent Allowance; Education allowance; Fixed Medical Allowance; Washing allowance: in so far as House Rent Allowance is concerned, the demand of the Union was for payment of 15% of the basic pay and dearness allowance. At present, House Rent Allowance was being paid at varying rates between 7% and 12%. The Tribunal has fixed a flat rate of 12. 5% of the revised basic scale plus dearness allowance. The learned single Judge has found that there was no reason to interfere with the award of the Tribunal. We do not find any infirmity in the award. Similarly, we are of the view that the grant of Education Allowance at the rate of Rs. 250. 00 per month, of the fixed medical Allowance at the rate of Rs. 300. 00 per month and washing allowance of Rs. 50. 00 per month to those employees who are given uniform and whose uniform is not washed at the Companys cost does not call for interference in appeal. ( 28 ) THE Industrial Tribunal has granted a revision of the conditions of service from the date of the Reference which is February 17, 1993. We have duly considered the question of the burden which would be imposed on the employer by the award of the Industrial tribunal as modified in these proceedings. ( 29 ) ACCORDING to the Association representing the workmen, the financial burden occasioned by the award of the Industrial tribunal would be no more than 16. 36% of the gross profits, based on the average gross profit made between 1991-92 and 1996-97. The assumption which the Association has made is that the average rate of corporate tax for the six years from 1991-92 until 1996-97 was 45. 58% and the net tax burden after making due allowance for the rate of tax would come to Rs. 6. 83 crores per year. These figures have been seriously disputed on the part of the appellant-employer. The learned counsel appearing on behalf of the employer has submitted that according to the Judgment of the learned single Judge, the average gross profits for the period 1991-92 to 1996-97 were Rs. 34. 22 crores and the annual burden is stated to be 25% of the average gross profits. (According to the employer, the correct percentage is 28% and not 24%.) The learned counsel appearing on behalf of the employer submitted that this burden was only in respect of 37% of the total strength of employees of the company and if the burden is projected on a pro rata basis in respect of all employees 76% of the average gross profit will have to be distributed amongst Companys employees. We have duly taken into account the rival submissions and have carefully considered the figures which have been submitted before us by both the sides. The Court will have also necessarily to have regard to the impact of the financial performance of the Company over a period of time. This includes the financial difficulties faced by the Company in 1998-99. Having regard to the financial burden under the award of the Tribunal as modified by us, we are of the considered view that the award of the tribunal as modified should be made operative not from February 17, 1993 as directed by the industrial Tribunal but, with effect from january 1, 1996. | 1[ds]On the one hand is often times a pressing need to revise the wages and the service conditions of workmen so as to protect their livelihood from an erosion in the real value of the pay packet. Inflation and increase in the cost of living in metropolitan areas spare no one, including the workers. The law has to protect the just aspirations of the working class and, the function of the industrial adjudicator has to necessarily go beyond protecting a minimum or subsistence level of wages, A realistic assessment has to be made of the basket of commodities and services which the worker, like any other human being is entitled to aspire for as a part of a decent and dignified standard of life. With the spread of education, the growth of technology with the attendant access to information and the impact of the media, workers and their families cannot be deprived of just expectations for an improvement in the standard of living. Equally, the Industrial adjudicator has to take due note of the position of the employer per se and in relation to other comparable concerns, the nature of the business of the employer, the financial capacity of the employer, the financial and economic conditions in which the business is operating and its future prospects. The extent of capital employed, the turnover, sales, reserves and profits must all weigh in the balance. The position of the employer, however, cannot be considered in isolation because if that were done, there would be a distortion in the wage structure prevalent in the region and in the industry. Therefore, our law embodies principle of. The industrial adjudicator has to assess the pattern of conditions prevalent in comparable concerns in the region and the industry. Where the number of concerns in the industry in the region is large, the industry aspect of the formula has to be emphasized.e where the number of concerns in the industry is relatively few in number, the region aspect of the formula has to be emphasizedApart from this the company supplies castings to sugar mills, cement industries, and public sector undertakings such as bhel, BEML, BSP etc. The alloy steel foundry manufactures and supplies a variety of allied steel castings for oil refineries, petrochemical units, diesel, mining and construction and defence. The company has also been exporting its product to USA, Canada, Germany, finland, United Kingdom. The export performances during the financial year9 was Rs. 2. 76 crores, in0 rs. 3. 40 crores and in1 Rs. 5. 01 crores. The company has declared 30% dividend for the years1 and 32. 5% in2 on the enhanced capital for the bonus issue in9 @ 1:2 ratio. The company has launched two subsidiary companies recently i. e. Mukand dravo Wellman Ltd. and Mukand Soviet engineering Limited in Association and equity participation with the Americans and the Russians. During the year7 the sales turnover has grown from 528 crores to 868. 49 crores. The paid up capital of the company in2 was 14. 73 crores. It has increased to 27. 09 crores. The reserves were 105. 13 crores. It has increased to 379. 01 crores in. The gross block including WIP was 239. 43 crores in2 and has increased to 445. 13 crores. The net worth of the company grew from Rs. 107. 49 crores to Rs. 408. 02 crores. The total assets have grown from Rs. 262. 04 crores to Rs. 990. 67 crores. Gross profit of the company for the period7 is 34. 22 crores. It is true that the company has been registering losses in the last year but that may be particularly due to the factor of recession which has affected the industries in generalIn the present case, these economic and financial indicators reflective of the performance and financial health of the employer establish beyond doubt that this is a company which is financially sound. Indeed, all the indicators including capital, reserves, sales, turnover, exports, assets, net worth and profits have consistently shown an upward increase save and except for an occasional aberration as in the year 199899. The fact that the financial performance of9 was an exception to an exceptionally notable performance by the Company over the years is reflected by the subsequent balance sheet for the year. The 62nd Annual report for the year0 is appropriately entitled the Turnaround. Making due allowance for some hyperbole which companies are known to adopt in order to present a picture of optimism for the shareholdersY Formula: industrial adjudication, in matter where the question of wage revision or revision of service conditions is involved, has to have regard to they principle. The underlying principles have been elaborated by the Supreme Court in several judgments which have already been noted earlier including French Motor Car Company and Greeves Cotton. In the present case, there was, in our view, sufficient material on the record relating to they in question, so as to enable the Industrial Court to adjudicate upon the disputeHaving given our anxious consideration to this submission and upon duly perusing the material which was produced before the Tribunal and in these proceedings with the assistance of the learned counsel, we are of the view that the submission which had been made on behalf of the employer is not justified. At the outset, it would be well to have regard to the fact, that industrial adjudication is not an exercise involving a pure mathematical computation. Statistics and figures are undoubtedly important facets of the process of wage fixation but, in the practical application of they formula, difficulties do arise before the industrial adjudicator. The circumstances relating to two industries within the same region or two establishments within the same industry in the same region, can rarely, if ever, be identical. Each establishment in the industry is bound to have its own peculiar characteristics relating to not merely to the nature of its business but, also those relating to its own peculiar industrial relations scenarioApart from the documentary material which was produced before the Industrial Tribunal, a comprehensive compilation collating the material was filed in the proceedings before it. This collation of material included a chart showing whether the demands of the Association which had been referred to adjudication in the Reference before the Tribunal were paid in comparable Companies. This included the claim for service increments, Dearness Allowance, house Rent Allowance, Leave Travel Allowance, Gratuity, Education Allowance, Medical allowance, Shift Allowance, ComputerWashing Allowance. Out of 16 companies, it was stated that the wage settlements of 11 companies had already. expired and were due for revisionIt has become necessary to advert to the material which was produced before the Industrial Tribunal because the material which was on record before the tribunal would clearly show that the justification for the demands of the Union was made in terens of tiieregion formula. Reliance was placed upon service conditions prevailing in comparable concerns with reference to different components of service conditions including basic scales, service increments, Dearness Allowance, House Rent allowance and Leave Travel Allowance to name some of our components. Therefore, in our view, it would not be correct to criticize or impugn the award of the Industrial Tribunal on the ground that there has been ae of well settled legal precepts relating to wage setting. Once again it would need emphasis that the data relating to 3 largen Lever, Mahindra and mahindra and Larsen and Toubro were kept aside by the learned single Judge on the ground that these were much larger in size than the employer in the present case. The limitations of the data were also duly taken into account by the learned single Judge while considering the matter. Ultimately an objective assessment of the case has been made, upon which the demands which have been granted by the Industrial Tribunal have been pruned down by the order passed by the learned single JudgeThe learned single Judge found substance in the criticism by the learned counsel appearing on behalf of the employer of the award of the Industrial tribunal on the ground that the total financial burden had not been evaluated correctly. The learned single Judge has observed that even according to the Employees Association, the total burden on account of the award works out to Rs. 35. 20 crores and the net burden for the year 1999 for the monthly rated employees and daily rated workmen at Kurla would be around Rs. 10 crores. The learned single Judge held that the Tribunal was obviously in error in holding that the yearly burden under the award would be Rs. 3. 3 crores to Rs. 3. 7 crores and wo have also to 6% to 7% of the total profits of the Company as a matter of fact, according to the learned single Judge, the burden on account of the award works out to about 25% of the gross profits and this factor would have to be borne in mind in fixing the wage structure for the concerned employeesThe difference between the two figures which works out to Rs. 1320 million i. e. Rs. 132 crores is sought to be explained by the employer by contending that the investment allowance and certain other figures including the net profit for3 on account of write back of an excess provision for taxation have been wrongly calculated. Reliance has been placed on behalf of the employer on figures relating to gross profit of various comparable concerns as a percentage of sales (Vol. II page 367) and of the percentage of capital employed. On the other hand, it has been sought to be submitted on behalf of the Association that an exaggerated and misleading picture of monthly emoluments payable to the employees before and after the award has been given on behalf of the employer. The Association representing the employees contends that the computations made on behalf of (he Company are based onn and that these computations were neither produced before the Industrial Tribunal in the form of documentary or oral evidence. In considering as to whether the revision of wage scale and other service conditions is justified, we have duly considered the financial position of the Company, the total pay packet that would be allowed to the employees as a result of the revision, the financial burden and the impact of the wage revision upon the financial health of the Company. It would now be appropriate to deal with each one of the heads under which wage revision has been grantedIn justification of its demand, the association relied upon the fact that the Bombay Consumer Price index which was 892 in June 1972 had gone upto 5435 in December 1991. The year 1972 was referred to because the basic scales were formulated much prior to 1972 and thereafter no revision in the basic scales had taken place apart from giving a fixed additional basic salary. The Association has sought to rationalize the basic scales, the additional basic salary and special allowances by merging all these three components and converting them into one basic salary thereby lifting the starting point of the basic scale. Apart from the rationalization, the Association has sought service incrementsThe learned single judge was of the view that the Tribunal had after a careful analysis of the material produced before it, granted the demand for revision of basic scales and service increments. The learned single Judge also observed that the tribunal had referred to wage paid in similarly situated concerns and had also taken into account the fact that a number of settlements and awards had been arrived at. The learned single judge in this view of the matter declined to interfere with the revision of basic scales. In so far as the service increments were concerned, the Tribunal by its Award had restricted the grant of relief to an extent lesser than what was claimedWe are of the view that the following pattern for the grant of service increment should be substituted in place and instead of what has been directed by the learned single Judge and in the award of the tribunal:1 increment between 10 to 18 years service. 2 ncrements between 18 to 25 years service. 3 increments above 25 years serviceThe learned single Judge has modified this part of the award of the Industrial Tribunal. The slabs and percentages laid down by the learned single Judge have already been extracted in paragraph 4 of the judgment and need not be extracted again. In justifying the award of the Industrial Tribunal in respect of Dearness Allowance, it has been sought to be submitted on behalf of the association that the existing scheme of Dearness Allowance did not protect even the need based minimum wage of thed period. According to the Association, thed of ,the Tribunal only enhanced Dearness Allowance to bring it near 100% neutralization of the earlier basic wageThe Association also drew the attention of the Court to the fact that the enhanced dearness Allowance was for the first time linked both to the basic wages and to the consumer Price Index. This was the method that was followed in almost all the other concerns which were held to be comparable. The dearness Allowance Scheme provided according to the Association, a neutralization of the effect of the rise in price index upon the basic wage to the extent of 94% at the lowest level of wage and which was gradually reduced to around 85% for the higher levels of wages. The association has challenged the decision of the learned single Judge in so far as it denied a dual linkage with the basic pay and Consumer Price index granted by the Tribunal in relation to the variable Dearness AllowanceHaving considered the award of the Tribunal, the Judgment of the learned single Judge and the material on record, we are of the view that a case for the revision of Dearness Allowance had been made out and the Dearness Allowance was required to be revised. First and foremost, in dealing with the question of Dearness Allowance regard must be duly had to the fact that in comparable concerns, a slab system of Dearness Allowance linking the allowance both with the basic salary as well as the Consumer Price index, is a matter of prevalent practiceIn the present case the erstwhile scheme which was prevalent in the Company was divided into 3 parts,(i) A slab D. A. at C. P. I. 1000 in which specified amounts of D. A. ranging from Rs. 376. 00 and Rs. 406. 00 was provided for various scales of basic pay upto rs. 200/and thereafter Nil D. A. was, however, provided upto C. P. I. 1200 for grades 01 and 00;(ii) Variable D. A. at the rate of Rs. 1. 72 for variation of 5 points for c. P. I, above 1000 for Grades upto 02 and in the case of Grades 01 and 00 at the rate of Rs. 10 for variation of 25 points for C. P. I, above 1200 and(iii) a fixed additional Dearness allowance gradewise. The award of the tribunal provides a Variable Dearness allowance as well as the Slab Dearness allowance linked to basic pay and to the consumer Price Index.The Variable Dearness allowance in turn had a linkage to the Consumer price Index as well as the basic pay as already noted earlier. The learned single Judge has pruned down the Dearness Allowance formula by excluding the linkage of Variable Dearness allowance with the basic pay. The Variable dearness Allowance is now payable for Grades 09 to 02 of Rs. 386 at C. P. I. 1000 (1934 ). For grades 01 and 00 there is no Dearness Allowance upto C. P. I. 1200 (1934 ). However, for an increase or decrease of 5 points above 1000 points on the Consumer Price Index, Dearness allowance is to increase or decrease, as the case may be, by Rs. 3 per 5 points. The decision of the learned single Judge in this regard has reduced the financial burden which is cast upon the employer as a result of the award of the Industrial tribunal. The separation of the Variable dearness Allowance from the dual linkage formula provides some relief to the employer. However, having regard particularly to the financial difficulties which the employer has faced in the recent past attendant upon the recession during the financial year, we are of the view that the Award of the Industrial tribunal should be modified to a certain extent. The Slab Dearness Allowance which has been granted by the Award of the Tribunal, as affirmed by the judgment of the learned single Judge is as) upto basic Rs. 300100% of basic b) Rs. 300 to 400A + 60% of basic above rs.) Rs. 400 to Rs. 500B + 40% of basic above Rs. 300. 00d) Rs. 500 and aboveC + 20% of basic above Rs. 500. 00In our view, the modification should be in the following) upto basic Rs. 300100% of basic b) Rs. 300 to 400A + 40% of the basic above Rs.) Rs. 400 to 500B + 20% of the basic above Rs. 400/~d) Rs. 500 and aboveB + 10% of the basic above Rs. 5007In our view this modification is necessitated in order to reduce the financial impact of the grant of Dearness Allowance as aforesaid. Therefore, while we are of the view that the introduction of the slab system of the dearness Allowance is entirely justified, the rates which have been granted should be substituted by a direction as hereinabove.( 25 ) LEAVE Travel Allowance: we are of the view that the revision of l. T. A. is entirely justified, having regard to the increased cost of all modes of transport, travel and other attendant expenses related thereto. The Tribunal has granted an amount of rs. 2,500/lump sum plus the respective monthly basic salary as the annual leave travel allowance for Grades 12 to 02. For Grades 01 and 00, the Tribunal has granted a lump sum of Rs. 3,500. 00 plus the respective monthly salary. We affirm the decision and the reasoning of the Tribunal and the learned single judge in this regard( 26 ) GRATUITY: in so far as gratuity is concerned, the tribunal has allowed the claim of the workmen for gratuity calculated at the rate of 21 days for every completed year of service. The learned single Judge has noted that the daily rated workmen at Kalwe are paid gratuity at the rate of 21 days of their basic wages plus Dearness allowance under an agreement dated February 15, 1994. The employees covered by in this case. reference were entitled to gratuity of 15 days of their basic wages and dearness allowance under the existing scheme. In this regard, we find a considerable degree of substance in the contention urged by the learned counsel appearing on behalf of the employer that the gratuity scheme at Kalwe is on the basis of a minimum attendance (the requirement is stated to be of 260 days) and of 20 years of service. The award gives a flat rate of gratuity of 21 days to all the employees. The learned counsel submitted that the Tribunal in para 72 in its judgment has ignored the qualification which were prescribed for the Kalwe Unit. Having regard to the aforesaid circumstances and particularly to the statutory provision relating to the payment of gratuity, we are of the view that at the present stage, the gratuity should be maintained as under the existing scheme of 15 days for every completed year of service.( 27 ) HOUSE Rent Allowance; Education allowance; Fixed Medical Allowance; Washing allowance: in so far as House Rent Allowance is concerned, the demand of the Union was for payment of 15% of the basic pay and dearness allowance. At present, House Rent Allowance was being paid at varying rates between 7% and 12%. The Tribunal has fixed a flat rate of 12. 5% of the revised basic scale plus dearness allowance. The learned single Judge has found that there was no reason to interfere with the award of the Tribunal. We do not find any infirmity in the award. Similarly, we are of the view that the grant of Education Allowance at the rate of Rs. 250. 00 per month, of the fixed medical Allowance at the rate of Rs. 300. 00 per month and washing allowance of Rs. 50. 00 per month to those employees who are given uniform and whose uniform is not washed at the Companys cost does not call for interference in appeal.( 28 ) THE Industrial Tribunal has granted a revision of the conditions of service from the date of the Reference which is February 17, 1993. We have duly considered the question of the burden which would be imposed on the employer by the award of the Industrial tribunal as modified in these proceedings.We have duly taken into account the rival submissions and have carefully considered the figures which have been submitted before us by both the sides. The Court will have also necessarily to have regard to the impact of the financial performance of the Company over a period of time. This includes the financial difficulties faced by the Company in. Having regard to the financial burden under the award of the Tribunal as modified by us, we are of the considered view that the award of the tribunal as modified should be made operative not from February 17, 1993 as directed by the industrial Tribunal but, with effect from january 1, 1996. | 1 | 20,047 | 3,946 | ### 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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Rs. 300 to 400 - A + 40% of the basic above Rs. 3007-c) Rs. 400 to 500 - B + 20% of the basic above Rs. 400/~ d) Rs. 500 and above - B + 10% of the basic above Rs. 5007- In our view this modification is necessitated in order to reduce the financial impact of the grant of Dearness Allowance as aforesaid. Therefore, while we are of the view that the introduction of the slab system of the dearness Allowance is entirely justified, the rates which have been granted should be substituted by a direction as hereinabove. ( 25 ) LEAVE Travel Allowance: we are of the view that the revision of l. T. A. is entirely justified, having regard to the increased cost of all modes of transport, travel and other attendant expenses related thereto. The Tribunal has granted an amount of rs. 2,500/- lump sum plus the respective monthly basic salary as the annual leave travel allowance for Grades 12 to 02. For Grades 01 and 00, the Tribunal has granted a lump sum of Rs. 3,500. 00 plus the respective monthly salary. We affirm the decision and the reasoning of the Tribunal and the learned single judge in this regard. ( 26 ) GRATUITY: in so far as gratuity is concerned, the tribunal has allowed the claim of the workmen for gratuity calculated at the rate of 21 days for every completed year of service. The learned single Judge has noted that the daily rated workmen at Kalwe are paid gratuity at the rate of 21 days of their basic wages plus Dearness allowance under an agreement dated February 15, 1994. The employees covered by in this case. reference were entitled to gratuity of 15 days of their basic wages and dearness allowance under the existing scheme. In this regard, we find a considerable degree of substance in the contention urged by the learned counsel appearing on behalf of the employer that the gratuity scheme at Kalwe is on the basis of a minimum attendance (the requirement is stated to be of 260 days) and of 20 years of service. The award gives a flat rate of gratuity of 21 days to all the employees. The learned counsel submitted that the Tribunal in para 72 in its judgment has ignored the qualification which were prescribed for the Kalwe Unit. Having regard to the aforesaid circumstances and particularly to the statutory provision relating to the payment of gratuity, we are of the view that at the present stage, the gratuity should be maintained as under the existing scheme of 15 days for every completed year of service. ( 27 ) HOUSE Rent Allowance; Education allowance; Fixed Medical Allowance; Washing allowance: in so far as House Rent Allowance is concerned, the demand of the Union was for payment of 15% of the basic pay and dearness allowance. At present, House Rent Allowance was being paid at varying rates between 7% and 12%. The Tribunal has fixed a flat rate of 12. 5% of the revised basic scale plus dearness allowance. The learned single Judge has found that there was no reason to interfere with the award of the Tribunal. We do not find any infirmity in the award. Similarly, we are of the view that the grant of Education Allowance at the rate of Rs. 250. 00 per month, of the fixed medical Allowance at the rate of Rs. 300. 00 per month and washing allowance of Rs. 50. 00 per month to those employees who are given uniform and whose uniform is not washed at the Companys cost does not call for interference in appeal. ( 28 ) THE Industrial Tribunal has granted a revision of the conditions of service from the date of the Reference which is February 17, 1993. We have duly considered the question of the burden which would be imposed on the employer by the award of the Industrial tribunal as modified in these proceedings. ( 29 ) ACCORDING to the Association representing the workmen, the financial burden occasioned by the award of the Industrial tribunal would be no more than 16. 36% of the gross profits, based on the average gross profit made between 1991-92 and 1996-97. The assumption which the Association has made is that the average rate of corporate tax for the six years from 1991-92 until 1996-97 was 45. 58% and the net tax burden after making due allowance for the rate of tax would come to Rs. 6. 83 crores per year. These figures have been seriously disputed on the part of the appellant-employer. The learned counsel appearing on behalf of the employer has submitted that according to the Judgment of the learned single Judge, the average gross profits for the period 1991-92 to 1996-97 were Rs. 34. 22 crores and the annual burden is stated to be 25% of the average gross profits. (According to the employer, the correct percentage is 28% and not 24%.) The learned counsel appearing on behalf of the employer submitted that this burden was only in respect of 37% of the total strength of employees of the company and if the burden is projected on a pro rata basis in respect of all employees 76% of the average gross profit will have to be distributed amongst Companys employees. We have duly taken into account the rival submissions and have carefully considered the figures which have been submitted before us by both the sides. The Court will have also necessarily to have regard to the impact of the financial performance of the Company over a period of time. This includes the financial difficulties faced by the Company in 1998-99. Having regard to the financial burden under the award of the Tribunal as modified by us, we are of the considered view that the award of the tribunal as modified should be made operative not from February 17, 1993 as directed by the industrial Tribunal but, with effect from january 1, 1996.
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02 of Rs. 386 at C. P. I. 1000 (1934 ). For grades 01 and 00 there is no Dearness Allowance upto C. P. I. 1200 (1934 ). However, for an increase or decrease of 5 points above 1000 points on the Consumer Price Index, Dearness allowance is to increase or decrease, as the case may be, by Rs. 3 per 5 points. The decision of the learned single Judge in this regard has reduced the financial burden which is cast upon the employer as a result of the award of the Industrial tribunal. The separation of the Variable dearness Allowance from the dual linkage formula provides some relief to the employer. However, having regard particularly to the financial difficulties which the employer has faced in the recent past attendant upon the recession during the financial year, we are of the view that the Award of the Industrial tribunal should be modified to a certain extent. The Slab Dearness Allowance which has been granted by the Award of the Tribunal, as affirmed by the judgment of the learned single Judge is as) upto basic Rs. 300100% of basic b) Rs. 300 to 400A + 60% of basic above rs.) Rs. 400 to Rs. 500B + 40% of basic above Rs. 300. 00d) Rs. 500 and aboveC + 20% of basic above Rs. 500. 00In our view, the modification should be in the following) upto basic Rs. 300100% of basic b) Rs. 300 to 400A + 40% of the basic above Rs.) Rs. 400 to 500B + 20% of the basic above Rs. 400/~d) Rs. 500 and aboveB + 10% of the basic above Rs. 5007In our view this modification is necessitated in order to reduce the financial impact of the grant of Dearness Allowance as aforesaid. Therefore, while we are of the view that the introduction of the slab system of the dearness Allowance is entirely justified, the rates which have been granted should be substituted by a direction as hereinabove.( 25 ) LEAVE Travel Allowance: we are of the view that the revision of l. T. A. is entirely justified, having regard to the increased cost of all modes of transport, travel and other attendant expenses related thereto. The Tribunal has granted an amount of rs. 2,500/lump sum plus the respective monthly basic salary as the annual leave travel allowance for Grades 12 to 02. For Grades 01 and 00, the Tribunal has granted a lump sum of Rs. 3,500. 00 plus the respective monthly salary. We affirm the decision and the reasoning of the Tribunal and the learned single judge in this regard( 26 ) GRATUITY: in so far as gratuity is concerned, the tribunal has allowed the claim of the workmen for gratuity calculated at the rate of 21 days for every completed year of service. The learned single Judge has noted that the daily rated workmen at Kalwe are paid gratuity at the rate of 21 days of their basic wages plus Dearness allowance under an agreement dated February 15, 1994. The employees covered by in this case. reference were entitled to gratuity of 15 days of their basic wages and dearness allowance under the existing scheme. In this regard, we find a considerable degree of substance in the contention urged by the learned counsel appearing on behalf of the employer that the gratuity scheme at Kalwe is on the basis of a minimum attendance (the requirement is stated to be of 260 days) and of 20 years of service. The award gives a flat rate of gratuity of 21 days to all the employees. The learned counsel submitted that the Tribunal in para 72 in its judgment has ignored the qualification which were prescribed for the Kalwe Unit. Having regard to the aforesaid circumstances and particularly to the statutory provision relating to the payment of gratuity, we are of the view that at the present stage, the gratuity should be maintained as under the existing scheme of 15 days for every completed year of service.( 27 ) HOUSE Rent Allowance; Education allowance; Fixed Medical Allowance; Washing allowance: in so far as House Rent Allowance is concerned, the demand of the Union was for payment of 15% of the basic pay and dearness allowance. At present, House Rent Allowance was being paid at varying rates between 7% and 12%. The Tribunal has fixed a flat rate of 12. 5% of the revised basic scale plus dearness allowance. The learned single Judge has found that there was no reason to interfere with the award of the Tribunal. We do not find any infirmity in the award. Similarly, we are of the view that the grant of Education Allowance at the rate of Rs. 250. 00 per month, of the fixed medical Allowance at the rate of Rs. 300. 00 per month and washing allowance of Rs. 50. 00 per month to those employees who are given uniform and whose uniform is not washed at the Companys cost does not call for interference in appeal.( 28 ) THE Industrial Tribunal has granted a revision of the conditions of service from the date of the Reference which is February 17, 1993. We have duly considered the question of the burden which would be imposed on the employer by the award of the Industrial tribunal as modified in these proceedings.We have duly taken into account the rival submissions and have carefully considered the figures which have been submitted before us by both the sides. The Court will have also necessarily to have regard to the impact of the financial performance of the Company over a period of time. This includes the financial difficulties faced by the Company in. Having regard to the financial burden under the award of the Tribunal as modified by us, we are of the considered view that the award of the tribunal as modified should be made operative not from February 17, 1993 as directed by the industrial Tribunal but, with effect from january 1, 1996.
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MAHANAGAR TELEPHONE NIGAM LTD Vs. CANARA BANK | Rishabh Enterprises ( (2018) 15 SCC 678 ) invoked the Group of Companies doctrine in a domestic arbitration under Part I of the 1996 Act. 10.7. Coming to the facts of the present case, CANFINA was set up as a wholly owned subsidiary of Canara Bank. This is evident from the Report of the Joint Committee to Enquire into Irregularities in Securities and Banking Transactions, 1993, Report, Presented to the Lok Sabha on 21 st December, 1993 which states as follows : ?Canbank Financial Services Ltd. 6.14 CANFINA was set up as a wholly owned subsidiary of Canara Bank and it commenced its operation with its Head Office at Bangalore on 1 st June, 1987. Its authorized and paid up capital are Rs. 50 crores and Rs. 10 crores respectively. It was staffed mostly be personnel from Canara Bank and has branches at Ahmedabad, Bombay, Calcutta, Hyderabad, Madras and New Delhi besides Bangalore. As the Board comprised mostly of senior executives of Canara Bank and its Chief Executive is also a senior official of that bank (on deputation) the company functioned under the umbrella of the parent bank; besides it submits periodical returns on its functioning to the Board of Canara Bank for information. 6.15 The activities authorized to be conducted by the Company are equipment leasing, merchant-banking, venture capital and consultancy services. The Company, initially deployed a major portion of its owned funds and deposits in equipment leasing business and obtained the classification of an ‘Equipment leasing company? from the Department of Finance Companies of RBI; this classification entitles the company to mobilize public deposits to the extent of ten time its owned funds. … 6.25 The Committee hope that the nature and extent of the financial assistance being provided by Canara Bank to its subsidiaries are such as could be justified on prudent commercial norms. Further the parent bank cannot be absolved of the responsibility for various irregularities of its subsidiary. ? (emphasis supplied) 10.8. The disputes between the parties emanated out of the transaction dated 10.02.1992, whereby CANFINA has subscribed to the bonds floated by MTNL. CANFINA subsequently transferred the Bonds to its holding Company 3– Canara Bank. It is the contention of MTNL, that since CANFINA did not pay the entire sale consideration for the Bonds, MTNL eventually was constrained to cancel the allotment of the Bonds. 10.9. It will be a futile effort to decide the disputes only between MTNL and Canara Bank, in the absence of CANFINA, since undisputedly, the original transaction emanated from a transaction between MTNL and CANFINA – the original purchaser of the Bonds. The disputes arose on the cancellation of the Bonds by MTNL on the ground that the entire consideration was not paid. There is a clear and direct nexus between the issuance of the Bonds, its subsequent transfer by CANFINA to Canara Bank, and the cancellation by MTNL, which has led to disputes between the three parties. Therefore, CANFINA is undoubtedly a necessary and proper party to the arbitration proceedings. 10.10. Given the tri-patite nature of the transaction, there can be a final resolution of the disputes, only if all three parties are joined in the arbitration proceedings, to finally resolve the disputes which have been pending for over 26 years now. It is of relevance to note that CANFINA has participated in the proceedings before the High Court, and the Committee on Disputes. CANFINA was also represented by its separate Counsel before the Sole Arbitrator. Canara Bank in CWP No. 560 of 1995 filed before the Delhi High Court, had joined CANFINA as Respondent No. 2, even though it was joined as a proforma party. CANFINA was represented by Counsel in the Writ Proceedings before the Delhi High Court. The Counsel for CANFINA was however not present on two dates i.e. on 16.09.2011 and 21.10.2011, when the High Court recorded the agreement between the parties for reference of disputes to arbitration. MTNL had submitted before the Delhi High Court that Canara Bank should agree to take over the liabilities of CANFINA before the arbitration could commence. The High Court recorded that there was no necessity of requiring Canara Bank to agree to take over the liabilities of CANFINA, prior to the arbitration proceedings. This issue would be decided in the arbitration. 10.11. On the commencement of arbitration proceedings before the Sole Arbitrator, notice was issued by the Sole Arbitrator to all the three parties including CANFINA, which was represented by its Counsel. 10.12. We find that the objection to CANFINA being impleaded as a party to the arbitration proceedings was raised by Canara Bank, and not CANFINA. 10.13. We do not find any merit in the objection raised by Canara Bank opposing the joining of CANFINA as a party to the dispute. Canara Bank vide letters dated 05.03.2009 and 17.03.2010 had enclosed a Draft Arbitration Agreement to MTNL, wherein it has clearly stated that the arbitration would be between three parties i.e. Canara Bank and CANFINA as party of the first part, and MTNL as party of the second part. It is incomprehensible why Canara Bank is now objecting to the impleadment of CANFINA in the arbitration proceedings. There is no justifiable ground advanced by the Counsel for Canara Bank to oppose the impleadment of CANFINA in the arbitration proceedings. 10.14. The present case is one of implied or tacit consent by Respondent No. 2 – CANFINA to being impleaded in the arbitral proceedings, which is evident from the conduct of the parties. We find that Respondent No. 2 – CANFINA has throughout participated in the proceedings before the Committee on Disputes, before the Delhi High Court, before the Sole Arbitrator, and was represented by its separate Counsel before this Court in the present appeal. There was a clear intention of the parties to bind both Canara Bank, and its subsidiary – CANFINA to the proceedings. In this case, there can be no final resolution of the disputes, unless all three parties are joined in the arbitration. | 1[ds]9. THE EXISTENCE OF A VALID ARBITRATION AGREEMENTA valid arbitration agreement constitutes the heart of an arbitration. An arbitration agreement is the written agreement between the parties, to submit their existing, or future disputes or differences, to arbitration. A valid arbitration agreement is the foundation stone on which the entire edifice of the arbitral process is structured. A binding agreement for disputes to be resolved through arbitration is a sine-qua-non for referring the parties to arbitration9.2. The arbitration agreement need not be in any particular form. What is required to be ascertained is the intention of the parties to settle their disputes through arbitration. The essential elements or attributes of an arbitration agreement is the agreement to refer their disputes or differences to arbitration, which is expressly or impliedly spelt out from a clause in an agreement, separate agreement, or documents/correspondence exchanged between the partiesThe agreement between MTNL and Canara Bank to refer the disputes to arbitration is evidenced from the following documents exchanged between the parties, and the proceedings :(i) The Minutes of the Meeting dated 27.03.2001 convened by the Cabinet Secretariat, wherein all three parties were present and participated in the proceedings. The Committee on Disputes, in the Meeting dated 16.12.2008 expressed the view that all the three parties should take recourse to arbitration in view of the different inter-liked transactions between them. Canara Bank suggested that to expedite the arbitration, it should be conducted under the Arbitration & Conciliation Act, 1996. This was accepted by MTNL, and no objection was raised(ii) Pursuant to the proceedings conducted by the Cabinet Secretariat, Canara Bank addressed letters dated 05.03.2009 and 17.03.2010 to MTNL, wherein it enclosed a draft Arbitration Agreements, wherein all three parties i.e. Canara Bank, CANFINA and MTNL would be joined in the arbitration proceedings.(iv) Pursuant thereto, MTNL participated in the proceedings conducted by the Sole Arbitrator, and filed its Claim, and Counter-Claim. No objection was raised before the Sole Arbitrator that there was no arbitration agreement in writing between the parties. The only objection raised was that CANFINA should be joined as a necessary party in the proceedingsIn the present case, Canara Bank had filed its Statement of Claim before the Arbitrator, and MTNL filed its Reply to the Statement of Claim, and also made a Counter Claim against Canara BankThe statement of Claim and Defence filed before the Arbitrator would constitute evidence of the existence of an arbitration agreement, which was not denied by the other party, under Section 7(4)(c) of the 1996 ActIn view of the aforesaid discussion, the objection raised by MTNL is devoid of any merit, and is hereby rejected10. JOINDER OF CANFINA IN THE ARBITRAL PROCEEDINGS10.1. Canara Bank raised an objection to the joinder of Respondent No. 2 – CANFINA as a party to the arbitration proceedings10.2. As per the principles of contract law, an agreement entered into by one of the companies in a group, cannot be binding on the other members of the same group, as each company is a separate legal entity which has separate legal rights and liabilitiesThe parent, or the subsidiary company, entering into an agreement, unless acting in accord with the principles of agency or representation, will be the only entity in a group, to be bound by that agreementSimilarly, an arbitration agreement is also governed by the same principles, and normally, the company entering into the agreement, would alone be bound by it10.3. A non-signatory can be bound by an arbitration agreement on the basis of the ?Group of Companies? doctrine, where the conduct of the parties evidences a clear intention of the parties to bind both the signatory as well as the non-signatory partiesCourts and tribunals have invoked this doctrine to join a non-signatory member of the group, if they are satisfied that the non-signatory company was by reference to the common intention of the parties, a necessary party to the contract10.7. Coming to the facts of the present case, CANFINA was set up as a wholly owned subsidiary of Canara Bank. This is evident from the Report of the Joint Committee to Enquire into Irregularities in Securities and Banking Transactions, 1993, Report, Presented to the Lok Sabha on 21 st December, 199310.8. The disputes between the parties emanated out of the transaction dated 10.02.1992, whereby CANFINA has subscribed to the bonds floated by MTNL. CANFINA subsequently transferred the Bonds to its holding Company 3– Canara Bank10.9. It will be a futile effort to decide the disputes only between MTNL and Canara Bank, in the absence of CANFINA, since undisputedly, the original transaction emanated from a transaction between MTNL and CANFINA – the original purchaser of the Bonds. The disputes arose on the cancellation of the Bonds by MTNL on the ground that the entire consideration was not paidThere is a clear and direct nexus between the issuance of the Bonds, its subsequent transfer by CANFINA to Canara Bank, and the cancellation by MTNL, which has led to disputes between the three partiesTherefore, CANFINA is undoubtedly a necessary and proper party to the arbitration proceedings10.10. Given the tri-patite nature of the transaction, there can be a final resolution of the disputes, only if all three parties are joined in the arbitration proceedings, to finally resolve the disputes which have been pending for over 26 years nowIt is of relevance to note that CANFINA has participated in the proceedings before the High Court, and the Committee on Disputes. CANFINA was also represented by its separate Counsel before the Sole Arbitrator. Canara Bank in CWP No. 560 of 1995 filed before the Delhi High Court, had joined CANFINA as Respondent No. 2, even though it was joined as a proforma party. CANFINA was represented by Counsel in the Writ Proceedings before the Delhi High Court. The Counsel for CANFINA was however not present on two dates i.e. on 16.09.2011 and 21.10.2011, when the High Court recorded the agreement between the parties for reference of disputes to arbitration. MTNL had submitted before the Delhi High Court that Canara Bank should agree to take over the liabilities of CANFINA before the arbitration could commence. The High Court recorded that there was no necessity of requiring Canara Bank to agree to take over the liabilities of CANFINA, prior to the arbitration proceedings. This issue would be decided in the arbitration10.11. On the commencement of arbitration proceedings before the Sole Arbitrator, notice was issued by the Sole Arbitrator to all the three parties including CANFINA, which was represented by its Counsel10.12. We find that the objection to CANFINA being impleaded as a party to the arbitration proceedings was raised by Canara Bank, and not CANFINA10.13. We do not find any merit in the objection raised by Canara Bank opposing the joining of CANFINA as a party to the dispute. Canara Bank vide letters dated 05.03.2009 and17.03.2010 had enclosed a Draft Arbitration Agreement to MTNL, wherein it has clearly stated that the arbitration would be between three parties i.e. Canara Bank and CANFINA as party of the first part, and MTNL as party of the second partIt is incomprehensible why Canara Bank is now objecting to the impleadment of CANFINA in the arbitration proceedings. There is no justifiable ground advanced by the Counsel for Canara Bank to oppose the impleadment of CANFINA in the arbitration proceedings10.14. The present case is one of implied or tacit consent by Respondent No. 2 – CANFINA to being impleaded in the arbitral proceedings, which is evident from the conduct of the parties. We find that Respondent No. 2 – CANFINA has throughout participated in the proceedings before the Committee on Disputes, before the Delhi High Court, before the Sole Arbitrator, and was represented by its separate Counsel before this Court in the present appeal. There was a clear intention of the parties to bind both Canara Bank, and its subsidiary – CANFINA to the proceedings. In this case, there can be no final resolution of the disputes, unless all three parties are joined in the arbitration9.9. The agreement between the parties as recorded in a judicial Order, is final and conclusive of the agreement entered into between the parties.(State of Maharashtra v. Ramdas Shrinivas Nayak (1982) 2 SCC 463. See also Chitra Kumari v. Union of India (2001) 3 SCC 208 ) The Appellant – MTNL after giving its consent to refer the disputes to arbitration before the Delhi High Court, is now estopped from contending that there was no written agreement to refer the parties to arbitration9.10. An additional ground, for rejecting the preliminary objection raised by MTNL is based on Section 7(4)(c) of the Arbitration and Conciliation Act, 199610.4. The doctrine of ‘Group of Companies? had its origins in the 1970?s from French arbitration practice. The ‘Group of Companies? doctrine indicates the implied consent to an agreement to arbitrate, in the context of modern multi-party business transactionsThe ‘Group of Companies? doctrine has been invoked by courts and tribunals in arbitrations, where an arbitration agreement is entered into by one of the companies in the group; and the non-signatory affiliate, or sister, or parent concern, is held to be bound by the arbitration agreement, if the facts and circumstances of the case demonstrate that it was the mutual intention of all parties to bind both the signatories and the non-signatory affiliates in the groupThe circumstances in which the ‘Group of Companies? Doctrine could be invoked to bind the non-signatory affiliate of a parent company, or inclusion of a third party to an arbitration, if there is a direct relationship between the party which is a signatory to the arbitration agreement; direct commonality of the subject matter; the composite nature of the transaction between the partiesA ‘composite transaction? refers to a transaction which is inter-linked in nature; or, where the performance of the agreement may not be feasible without the aid, execution, and performance of the supplementary or the ancillary agreement, for achieving the common object, and collectively having a bearing on the dispute. | 1 | 6,582 | 1,855 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
Rishabh Enterprises ( (2018) 15 SCC 678 ) invoked the Group of Companies doctrine in a domestic arbitration under Part I of the 1996 Act. 10.7. Coming to the facts of the present case, CANFINA was set up as a wholly owned subsidiary of Canara Bank. This is evident from the Report of the Joint Committee to Enquire into Irregularities in Securities and Banking Transactions, 1993, Report, Presented to the Lok Sabha on 21 st December, 1993 which states as follows : ?Canbank Financial Services Ltd. 6.14 CANFINA was set up as a wholly owned subsidiary of Canara Bank and it commenced its operation with its Head Office at Bangalore on 1 st June, 1987. Its authorized and paid up capital are Rs. 50 crores and Rs. 10 crores respectively. It was staffed mostly be personnel from Canara Bank and has branches at Ahmedabad, Bombay, Calcutta, Hyderabad, Madras and New Delhi besides Bangalore. As the Board comprised mostly of senior executives of Canara Bank and its Chief Executive is also a senior official of that bank (on deputation) the company functioned under the umbrella of the parent bank; besides it submits periodical returns on its functioning to the Board of Canara Bank for information. 6.15 The activities authorized to be conducted by the Company are equipment leasing, merchant-banking, venture capital and consultancy services. The Company, initially deployed a major portion of its owned funds and deposits in equipment leasing business and obtained the classification of an ‘Equipment leasing company? from the Department of Finance Companies of RBI; this classification entitles the company to mobilize public deposits to the extent of ten time its owned funds. … 6.25 The Committee hope that the nature and extent of the financial assistance being provided by Canara Bank to its subsidiaries are such as could be justified on prudent commercial norms. Further the parent bank cannot be absolved of the responsibility for various irregularities of its subsidiary. ? (emphasis supplied) 10.8. The disputes between the parties emanated out of the transaction dated 10.02.1992, whereby CANFINA has subscribed to the bonds floated by MTNL. CANFINA subsequently transferred the Bonds to its holding Company 3– Canara Bank. It is the contention of MTNL, that since CANFINA did not pay the entire sale consideration for the Bonds, MTNL eventually was constrained to cancel the allotment of the Bonds. 10.9. It will be a futile effort to decide the disputes only between MTNL and Canara Bank, in the absence of CANFINA, since undisputedly, the original transaction emanated from a transaction between MTNL and CANFINA – the original purchaser of the Bonds. The disputes arose on the cancellation of the Bonds by MTNL on the ground that the entire consideration was not paid. There is a clear and direct nexus between the issuance of the Bonds, its subsequent transfer by CANFINA to Canara Bank, and the cancellation by MTNL, which has led to disputes between the three parties. Therefore, CANFINA is undoubtedly a necessary and proper party to the arbitration proceedings. 10.10. Given the tri-patite nature of the transaction, there can be a final resolution of the disputes, only if all three parties are joined in the arbitration proceedings, to finally resolve the disputes which have been pending for over 26 years now. It is of relevance to note that CANFINA has participated in the proceedings before the High Court, and the Committee on Disputes. CANFINA was also represented by its separate Counsel before the Sole Arbitrator. Canara Bank in CWP No. 560 of 1995 filed before the Delhi High Court, had joined CANFINA as Respondent No. 2, even though it was joined as a proforma party. CANFINA was represented by Counsel in the Writ Proceedings before the Delhi High Court. The Counsel for CANFINA was however not present on two dates i.e. on 16.09.2011 and 21.10.2011, when the High Court recorded the agreement between the parties for reference of disputes to arbitration. MTNL had submitted before the Delhi High Court that Canara Bank should agree to take over the liabilities of CANFINA before the arbitration could commence. The High Court recorded that there was no necessity of requiring Canara Bank to agree to take over the liabilities of CANFINA, prior to the arbitration proceedings. This issue would be decided in the arbitration. 10.11. On the commencement of arbitration proceedings before the Sole Arbitrator, notice was issued by the Sole Arbitrator to all the three parties including CANFINA, which was represented by its Counsel. 10.12. We find that the objection to CANFINA being impleaded as a party to the arbitration proceedings was raised by Canara Bank, and not CANFINA. 10.13. We do not find any merit in the objection raised by Canara Bank opposing the joining of CANFINA as a party to the dispute. Canara Bank vide letters dated 05.03.2009 and 17.03.2010 had enclosed a Draft Arbitration Agreement to MTNL, wherein it has clearly stated that the arbitration would be between three parties i.e. Canara Bank and CANFINA as party of the first part, and MTNL as party of the second part. It is incomprehensible why Canara Bank is now objecting to the impleadment of CANFINA in the arbitration proceedings. There is no justifiable ground advanced by the Counsel for Canara Bank to oppose the impleadment of CANFINA in the arbitration proceedings. 10.14. The present case is one of implied or tacit consent by Respondent No. 2 – CANFINA to being impleaded in the arbitral proceedings, which is evident from the conduct of the parties. We find that Respondent No. 2 – CANFINA has throughout participated in the proceedings before the Committee on Disputes, before the Delhi High Court, before the Sole Arbitrator, and was represented by its separate Counsel before this Court in the present appeal. There was a clear intention of the parties to bind both Canara Bank, and its subsidiary – CANFINA to the proceedings. In this case, there can be no final resolution of the disputes, unless all three parties are joined in the arbitration.
### Response:
1
### Explanation:
up as a wholly owned subsidiary of Canara Bank. This is evident from the Report of the Joint Committee to Enquire into Irregularities in Securities and Banking Transactions, 1993, Report, Presented to the Lok Sabha on 21 st December, 199310.8. The disputes between the parties emanated out of the transaction dated 10.02.1992, whereby CANFINA has subscribed to the bonds floated by MTNL. CANFINA subsequently transferred the Bonds to its holding Company 3– Canara Bank10.9. It will be a futile effort to decide the disputes only between MTNL and Canara Bank, in the absence of CANFINA, since undisputedly, the original transaction emanated from a transaction between MTNL and CANFINA – the original purchaser of the Bonds. The disputes arose on the cancellation of the Bonds by MTNL on the ground that the entire consideration was not paidThere is a clear and direct nexus between the issuance of the Bonds, its subsequent transfer by CANFINA to Canara Bank, and the cancellation by MTNL, which has led to disputes between the three partiesTherefore, CANFINA is undoubtedly a necessary and proper party to the arbitration proceedings10.10. Given the tri-patite nature of the transaction, there can be a final resolution of the disputes, only if all three parties are joined in the arbitration proceedings, to finally resolve the disputes which have been pending for over 26 years nowIt is of relevance to note that CANFINA has participated in the proceedings before the High Court, and the Committee on Disputes. CANFINA was also represented by its separate Counsel before the Sole Arbitrator. Canara Bank in CWP No. 560 of 1995 filed before the Delhi High Court, had joined CANFINA as Respondent No. 2, even though it was joined as a proforma party. CANFINA was represented by Counsel in the Writ Proceedings before the Delhi High Court. The Counsel for CANFINA was however not present on two dates i.e. on 16.09.2011 and 21.10.2011, when the High Court recorded the agreement between the parties for reference of disputes to arbitration. MTNL had submitted before the Delhi High Court that Canara Bank should agree to take over the liabilities of CANFINA before the arbitration could commence. The High Court recorded that there was no necessity of requiring Canara Bank to agree to take over the liabilities of CANFINA, prior to the arbitration proceedings. This issue would be decided in the arbitration10.11. On the commencement of arbitration proceedings before the Sole Arbitrator, notice was issued by the Sole Arbitrator to all the three parties including CANFINA, which was represented by its Counsel10.12. We find that the objection to CANFINA being impleaded as a party to the arbitration proceedings was raised by Canara Bank, and not CANFINA10.13. We do not find any merit in the objection raised by Canara Bank opposing the joining of CANFINA as a party to the dispute. Canara Bank vide letters dated 05.03.2009 and17.03.2010 had enclosed a Draft Arbitration Agreement to MTNL, wherein it has clearly stated that the arbitration would be between three parties i.e. Canara Bank and CANFINA as party of the first part, and MTNL as party of the second partIt is incomprehensible why Canara Bank is now objecting to the impleadment of CANFINA in the arbitration proceedings. There is no justifiable ground advanced by the Counsel for Canara Bank to oppose the impleadment of CANFINA in the arbitration proceedings10.14. The present case is one of implied or tacit consent by Respondent No. 2 – CANFINA to being impleaded in the arbitral proceedings, which is evident from the conduct of the parties. We find that Respondent No. 2 – CANFINA has throughout participated in the proceedings before the Committee on Disputes, before the Delhi High Court, before the Sole Arbitrator, and was represented by its separate Counsel before this Court in the present appeal. There was a clear intention of the parties to bind both Canara Bank, and its subsidiary – CANFINA to the proceedings. In this case, there can be no final resolution of the disputes, unless all three parties are joined in the arbitration9.9. The agreement between the parties as recorded in a judicial Order, is final and conclusive of the agreement entered into between the parties.(State of Maharashtra v. Ramdas Shrinivas Nayak (1982) 2 SCC 463. See also Chitra Kumari v. Union of India (2001) 3 SCC 208 ) The Appellant – MTNL after giving its consent to refer the disputes to arbitration before the Delhi High Court, is now estopped from contending that there was no written agreement to refer the parties to arbitration9.10. An additional ground, for rejecting the preliminary objection raised by MTNL is based on Section 7(4)(c) of the Arbitration and Conciliation Act, 199610.4. The doctrine of ‘Group of Companies? had its origins in the 1970?s from French arbitration practice. The ‘Group of Companies? doctrine indicates the implied consent to an agreement to arbitrate, in the context of modern multi-party business transactionsThe ‘Group of Companies? doctrine has been invoked by courts and tribunals in arbitrations, where an arbitration agreement is entered into by one of the companies in the group; and the non-signatory affiliate, or sister, or parent concern, is held to be bound by the arbitration agreement, if the facts and circumstances of the case demonstrate that it was the mutual intention of all parties to bind both the signatories and the non-signatory affiliates in the groupThe circumstances in which the ‘Group of Companies? Doctrine could be invoked to bind the non-signatory affiliate of a parent company, or inclusion of a third party to an arbitration, if there is a direct relationship between the party which is a signatory to the arbitration agreement; direct commonality of the subject matter; the composite nature of the transaction between the partiesA ‘composite transaction? refers to a transaction which is inter-linked in nature; or, where the performance of the agreement may not be feasible without the aid, execution, and performance of the supplementary or the ancillary agreement, for achieving the common object, and collectively having a bearing on the dispute.
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Valsan P Vs. The State of Kerala and Ors | in such manner as may appear to the Government to be just and equitable: Provided that where such rules or orders are applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those rules or orders. This amendment shall be deemed to have come into force with effect from 17th December 1958. 11. In that backdrop, having noted that the appellants first spell of pensionable service was under the Central Government and the second spell was under the State Government, it would be apposite to take note of the Government Order dated 12.11.2002 referred by the learned counsel for appellant. The relevant portion of the Government Order dated 12.11.2002 reads as hereunder: Government have examined the matter in detail and are pleased to order that the employees of the State Government Departments who left the former service in Central Government/ Central Public Sector Undertakings on their own volition for taking up appointment is State government Departments will be allowed to reckon their prior service for all pensionary benefits along with the service in the State Government Department if the former employer remits the share of proportionate prorate pensionary liability on a service share basis. These Orders will take effect, including monetary effect, only from the date of this order and individual cases otherwise settled will not be re-opened. 12. Though the benefit of reckoning the earlier pensionable service between Central Government and State Government was provided, it was subject to remitting the proportionate pro rata pensionary liability on service share basis between the two employers. However, by a subsequent Government Order dated 06.12.2003, which has reference to the earlier Government Order dated 12.11.2002, the State Government has done away with the proportionate pro rata sharing between the two employers for payment of pensionary benefits. The State Government has notified to bear the pensionary benefits. The relevant portion of the said Government Order dated 06.12.2003 reads as hereunder: Government have examined the matter in detail and in modification of the orders issued in the G.O. 3rd cited are pleased to order that in the case of prior service rendered by Central Government employees in State Government and vice versa, the liability of Pension including gratuity, will be become in full by the central Government/State Government to which the Government servant permanently belongs at the time of retirement and no recovery of proportionate pension will be mode from Central Government/State Government under whom he had served. But in the case of employees who left the former service in the Central Public Sector Undertakings the orders issued in G.O. dt 12.11.02 will stand. 13. In view of the said position, the observation of the High Court that the appellant is free to move the Central Government if he has a case that his service in the Telecom Department is liable to be reckoned is not justified. If the break in service is condoned as sought by the appellant, then the entire relief would be available at the hands of the State Government. Therefore, the solitary moot question for consideration in the instant case is, as to whether the break in service interrupting the service rendered in Telecom Department and the Technical Education Department is condonable. 14. On this aspect, the learned counsel for the appellant has relied on the Government Order dated 24.09.2014 whereunder the condonation of the non-qualifying sandwiched period was provided for, to reckon the qualifying service. The Government Order was made with reference to Rule 29 (a) Part III KSR. The Government Order dated 24.09.2014 reads as hereunder: As per Rule 29(a) Part III Kerala Service Rules, resignation of the Public Service or dismissal or removal from it, entails forfeiture of past service. As per Rule 29(b) of ibid, resignation of an appointment to take up another appointment the service in which counts is not resignation from public service and the break between two appointments should not exceed the joining time admissible under the service rules plus public holidays. 2) Several requests have been received in Government to reckon the prior qualifying service for pension after condoning the non-qualifying sandwiched service as break without forfeiture of past service. 3) Government have examined the matter in detail and are pleased to order that the prior public service shall be reckoned as qualifying service for pension after condoning the sandwiched non qualifying service as break between the two services. A perusal of the Government Order noted above indicates that the benefit sought for by the appellant is provided and the sandwiched non qualifying service as break in the two services is condonable and the prior public service shall be reckoned as qualifying service for pension. The learned counsel for the respondents contended that the High Court was justified in holding that the appellant had retired on 30.06.2006, while the Government Order is dated 24.09.2014 and as such cannot be made applicable retrospectively. We are unable to accede to such contention. In fact, the KAT had taken note of the entire sequence and had rightly noted that the issue had not been settled and not reached finality in the case of the appellant since his review petition dated 17.09.2014 against the order dated 25.07.2014 was still pending when the Government Order dated 24.09.2014 was issued. The said Government Order in para 2 has taken note of the several requests received to reckon the prior qualifying service. Further, the main aspect of reckoning the service rendered in Central Government for pensionary benefit after joining State Government service was given effect through the Government Order dated 12.11.2002 and 06.12.2003 i.e., when the appellant was still in State Government service and had not retired. The issue of condoning the break i.e., the sandwich period was claimed immediately on retirement and it was still being agitated. The review was rejected on 21.05.2015 only after the Government Order dated 24.09.2014 was issued granting the benefit of condoning the break. | 1[ds]7. To put the matter in perspective, it is to be noted at the outset that the appellant had worked in the Telecom Department from 05.02.1974 to 31.05.1984 which is pensionable service in usual course if the other requirements were satisfied. The appellant had thereafter worked in the Technical Education Department under the State Government from 31.05.1987, till his retirement on attaining the age of superannuation on 30.06.2006. The said service is also pensionable service. During the interregnum, between 04.06.1984 to 30.05.1987 the appellant worked in SILK which is a State Government Public Sector Undertaking and the service rendered therein is admittedly not pensionable service. The said period of service therefore acts as a disconnect between the two different pensionable service rendered by the appellant and the same needs to be condoned to provide a single block of pensionable service.8. In that background, it is also to be kept in perspective that the case of the appellant is not that the non-pensionable service rendered in SILK is also to be reckoned and the entire service from 05.02.1974 to 30.06.2006 is to be admitted for computing the pensionary benefits as assumed by the High Court.10. The above noted Rule if taken into consideration as a standalone provision, it would settle the issue against the appellant since the break between the two appointments is much more than the joining period and the break itself is due to non-pensionable employment. However, what is required to be examined is the availability of provision to condone such break.13. In view of the said position, the observation of the High Court that the appellant is free to move the Central Government if he has a case that his service in the Telecom Department is liable to be reckoned is not justified. If the break in service is condoned as sought by the appellant, then the entire relief would be available at the hands of the State Government.A perusal of the Government Order noted above indicates that the benefit sought for by the appellant is provided and the sandwiched non qualifying service as break in the two services is condonable and the prior public service shall be reckoned as qualifying service for pension.The learned counsel for the respondents contended that the High Court was justified in holding that the appellant had retired on 30.06.2006, while the Government Order is dated 24.09.2014 and as such cannot be made applicable retrospectively.We are unable to accede to such contention. In fact, the KAT had taken note of the entire sequence and had rightly noted that the issue had not been settled and not reached finality in the case of the appellant since his review petition dated 17.09.2014 against the order dated 25.07.2014 was still pending when the Government Order dated 24.09.2014 was issued. The said Government Order in para 2 has taken note of the several requests received to reckon the prior qualifying service. Further, the main aspect of reckoning the service rendered in Central Government for pensionary benefit after joining State Government service was given effect through the Government Order dated 12.11.2002 and 06.12.2003 i.e., when the appellant was still in State Government service and had not retired. The issue of condoning the break i.e., the sandwich period was claimed immediately on retirement and it was still being agitated. The review was rejected on 21.05.2015 only after the Government Order dated 24.09.2014 was issued granting the benefit of condoning the break. | 1 | 2,522 | 606 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
### Input:
in such manner as may appear to the Government to be just and equitable: Provided that where such rules or orders are applicable to the case of any person or persons, the case shall not be dealt with in any manner less favourable to him or them than that provided by those rules or orders. This amendment shall be deemed to have come into force with effect from 17th December 1958. 11. In that backdrop, having noted that the appellants first spell of pensionable service was under the Central Government and the second spell was under the State Government, it would be apposite to take note of the Government Order dated 12.11.2002 referred by the learned counsel for appellant. The relevant portion of the Government Order dated 12.11.2002 reads as hereunder: Government have examined the matter in detail and are pleased to order that the employees of the State Government Departments who left the former service in Central Government/ Central Public Sector Undertakings on their own volition for taking up appointment is State government Departments will be allowed to reckon their prior service for all pensionary benefits along with the service in the State Government Department if the former employer remits the share of proportionate prorate pensionary liability on a service share basis. These Orders will take effect, including monetary effect, only from the date of this order and individual cases otherwise settled will not be re-opened. 12. Though the benefit of reckoning the earlier pensionable service between Central Government and State Government was provided, it was subject to remitting the proportionate pro rata pensionary liability on service share basis between the two employers. However, by a subsequent Government Order dated 06.12.2003, which has reference to the earlier Government Order dated 12.11.2002, the State Government has done away with the proportionate pro rata sharing between the two employers for payment of pensionary benefits. The State Government has notified to bear the pensionary benefits. The relevant portion of the said Government Order dated 06.12.2003 reads as hereunder: Government have examined the matter in detail and in modification of the orders issued in the G.O. 3rd cited are pleased to order that in the case of prior service rendered by Central Government employees in State Government and vice versa, the liability of Pension including gratuity, will be become in full by the central Government/State Government to which the Government servant permanently belongs at the time of retirement and no recovery of proportionate pension will be mode from Central Government/State Government under whom he had served. But in the case of employees who left the former service in the Central Public Sector Undertakings the orders issued in G.O. dt 12.11.02 will stand. 13. In view of the said position, the observation of the High Court that the appellant is free to move the Central Government if he has a case that his service in the Telecom Department is liable to be reckoned is not justified. If the break in service is condoned as sought by the appellant, then the entire relief would be available at the hands of the State Government. Therefore, the solitary moot question for consideration in the instant case is, as to whether the break in service interrupting the service rendered in Telecom Department and the Technical Education Department is condonable. 14. On this aspect, the learned counsel for the appellant has relied on the Government Order dated 24.09.2014 whereunder the condonation of the non-qualifying sandwiched period was provided for, to reckon the qualifying service. The Government Order was made with reference to Rule 29 (a) Part III KSR. The Government Order dated 24.09.2014 reads as hereunder: As per Rule 29(a) Part III Kerala Service Rules, resignation of the Public Service or dismissal or removal from it, entails forfeiture of past service. As per Rule 29(b) of ibid, resignation of an appointment to take up another appointment the service in which counts is not resignation from public service and the break between two appointments should not exceed the joining time admissible under the service rules plus public holidays. 2) Several requests have been received in Government to reckon the prior qualifying service for pension after condoning the non-qualifying sandwiched service as break without forfeiture of past service. 3) Government have examined the matter in detail and are pleased to order that the prior public service shall be reckoned as qualifying service for pension after condoning the sandwiched non qualifying service as break between the two services. A perusal of the Government Order noted above indicates that the benefit sought for by the appellant is provided and the sandwiched non qualifying service as break in the two services is condonable and the prior public service shall be reckoned as qualifying service for pension. The learned counsel for the respondents contended that the High Court was justified in holding that the appellant had retired on 30.06.2006, while the Government Order is dated 24.09.2014 and as such cannot be made applicable retrospectively. We are unable to accede to such contention. In fact, the KAT had taken note of the entire sequence and had rightly noted that the issue had not been settled and not reached finality in the case of the appellant since his review petition dated 17.09.2014 against the order dated 25.07.2014 was still pending when the Government Order dated 24.09.2014 was issued. The said Government Order in para 2 has taken note of the several requests received to reckon the prior qualifying service. Further, the main aspect of reckoning the service rendered in Central Government for pensionary benefit after joining State Government service was given effect through the Government Order dated 12.11.2002 and 06.12.2003 i.e., when the appellant was still in State Government service and had not retired. The issue of condoning the break i.e., the sandwich period was claimed immediately on retirement and it was still being agitated. The review was rejected on 21.05.2015 only after the Government Order dated 24.09.2014 was issued granting the benefit of condoning the break.
### Response:
1
### Explanation:
7. To put the matter in perspective, it is to be noted at the outset that the appellant had worked in the Telecom Department from 05.02.1974 to 31.05.1984 which is pensionable service in usual course if the other requirements were satisfied. The appellant had thereafter worked in the Technical Education Department under the State Government from 31.05.1987, till his retirement on attaining the age of superannuation on 30.06.2006. The said service is also pensionable service. During the interregnum, between 04.06.1984 to 30.05.1987 the appellant worked in SILK which is a State Government Public Sector Undertaking and the service rendered therein is admittedly not pensionable service. The said period of service therefore acts as a disconnect between the two different pensionable service rendered by the appellant and the same needs to be condoned to provide a single block of pensionable service.8. In that background, it is also to be kept in perspective that the case of the appellant is not that the non-pensionable service rendered in SILK is also to be reckoned and the entire service from 05.02.1974 to 30.06.2006 is to be admitted for computing the pensionary benefits as assumed by the High Court.10. The above noted Rule if taken into consideration as a standalone provision, it would settle the issue against the appellant since the break between the two appointments is much more than the joining period and the break itself is due to non-pensionable employment. However, what is required to be examined is the availability of provision to condone such break.13. In view of the said position, the observation of the High Court that the appellant is free to move the Central Government if he has a case that his service in the Telecom Department is liable to be reckoned is not justified. If the break in service is condoned as sought by the appellant, then the entire relief would be available at the hands of the State Government.A perusal of the Government Order noted above indicates that the benefit sought for by the appellant is provided and the sandwiched non qualifying service as break in the two services is condonable and the prior public service shall be reckoned as qualifying service for pension.The learned counsel for the respondents contended that the High Court was justified in holding that the appellant had retired on 30.06.2006, while the Government Order is dated 24.09.2014 and as such cannot be made applicable retrospectively.We are unable to accede to such contention. In fact, the KAT had taken note of the entire sequence and had rightly noted that the issue had not been settled and not reached finality in the case of the appellant since his review petition dated 17.09.2014 against the order dated 25.07.2014 was still pending when the Government Order dated 24.09.2014 was issued. The said Government Order in para 2 has taken note of the several requests received to reckon the prior qualifying service. Further, the main aspect of reckoning the service rendered in Central Government for pensionary benefit after joining State Government service was given effect through the Government Order dated 12.11.2002 and 06.12.2003 i.e., when the appellant was still in State Government service and had not retired. The issue of condoning the break i.e., the sandwich period was claimed immediately on retirement and it was still being agitated. The review was rejected on 21.05.2015 only after the Government Order dated 24.09.2014 was issued granting the benefit of condoning the break.
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Ratan Lal Shah Vs. Firm Lalmandas Chhadammalal & Anr | proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."The object of the rule is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The Court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant.There was some conflict of judicial opinion in the High Courts on the question whether power under Order 41, Rule 4 of the Code of Civil Procedure may be exercised where all the parties against whom a decree is passed on a ground which is common to them are not impleaded in the appeal. The preponderance of authority in the High Court was that even in the absence of a person against whom a decree has been passed on a ground common with the appellant the appeal was maintainable and appropriate relief may be granted. It is, however, unnecessary to examine those decisions for, in our judgment, the question has been considered by this Court in Karam Singh Sobti v. Shri Pratap Chand, (1964) 4 SCR 647 = (AIR 1964 SC 1305 ). In that case a landlord of certain premises filed an action in ejectment against the tenant and the sub-tenant in respect of premises on the ground that the tenant had sub-let the premises without the landlords consent. The Trial Judge decreed the suit holding that the landlord had not acquiesced in the sub-letting. The sub-tenant alone appealed to the Additional Senior Subordinate Judge who set aside the order of the Trial Court. It was urged before this Court that the appeal by the sub-tenant to the Subordinate Judge was incompetent, because the tenant against whom a decree in ejectment was passed had not appealed. On certain questions which are not material for the purpose of this judgment, there was difference of opinion between Sarkar, J., on the one hand, and S. K. Das Acting C. J. and Hidayatullah J., on the other, but the Court unanimously held in that case that the appeal was maintainable before the Subordinate Judge, even though the tenant had not appealed against the order of the Court of First Instance. Sarkar, J., observed at p. 663 :"The suit had been filed both against the tenant and the sub-tenant, being respectively the Association and the appellant. One decree had been passed by the trial Judge against both. The appellant had his own right to appeal from that decree. That right could not be affected by the Associations decision not to file an appeal. There was one decree and, therefore, the appellant was entitled to have it set aside even though thereby the Association would also be freed from the decree. He cold say that decree was wrong and should be set aside as it was passed on the erroneous finding that the respondent had not acquiesced in the sub-letting by the Association to him. He could challenge that decree on any ground available. The lower appellate Court was therefore, quite competent in the appeal by the appellant from the joint decree in ejectment against him and the Association, to give him whatever relief he was found entitled to, even though the Association had filed no appeal."With that view S. K. Das, Acting C. J. and Hidayatullah, J., agreed; see p. 652. It is true that in that case the tenant was made a party to the appeal before the Subordinate Judge. But the judgment of the Court proceeded upon a larger ground that the sub-tenant had a right to appeal against the decree passed against him and that right was not affected by the tenants decision not to file an appeal.4. Counsel for the plaintiffs contended that the appeal filed by Ratan Lal if it be heard may possibly result in an order which may prejudicially affect Mohan Singh, and if Mohan Singh has no opportunity of being heard no decree may be passed against him, for to do so would be contrary to he fundamental rules of natural justice.But in the appeal filed by Ratan Lal there is no possibility of a decree being passed which may impose a more onerous liability upon Mohan Singh. The Trial Court has passed a decree against Ratan Lal and Mohan Singh jointly and severally. Mohan Singh is liable for the full amount of the claim of the plaintiffs. If the appeal filed by Ratan Lal succeeds, the Court may reduce the liability of Mohan Singh, but there may conceivably be no order by the Court operating to the prejudice of Mohan Singh in the appeal.5. It was also urged by counsel for the plaintiffs that Ratan Lal had been negligent in the High Court in prosecuting the appeal, and it would be putting a premium upon his negligence to allow him now to prosecute the appeal. It is not possible on the record, as it stands, to say whether failure to serve notice of appeal upon Mohan Singh was wholly attributable to the negligence of Ratan Lal. But even if it be assumed that he was negligent, on that ground he cannot be deprived of his legal right to prosecute the appeal and to claim relief under Order 41, Rule 4 of the Code of Civil Procedure, if the circumstances of the case warrant it.The decree of the Trial Court proceeded on a ground common to Mohan Singh and Ratan Lal. In the appeal filed by Ratan Lal he was denying liability for the claim of the plaintiffs in its entirety. This was essentially a case in which the Courts jurisdiction under Order 41, Rule 4, Code of Civil Procedure could be exercised. | 1[ds]3. In our view the judgment of the High Court cannot be sustained. The appeal could not be dismissed on the ground that Mohan Singh was not served with the notice of appeal, nor could the appeal be dismissed on the ground that there was a possibility of two conflictingobject of the rule is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The Court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant.There was some conflict of judicial opinion in the High Courts on the question whether power under Order 41, Rule 4 of the Code of Civil Procedure may be exercised where all the parties against whom a decree is passed on a ground which is common to them are not impleaded in the appeal. The preponderance of authority in the High Court was that even in the absence of a person against whom a decree has been passed on a ground common with the appellant the appeal was maintainable and appropriate relief may beis, however, unnecessary to examine those decisions for, in our judgment, the question has been considered by this Court in Karam Singh Sobti v. Shri Pratap Chand, (1964) 4 SCR 647 = (AIR 1964 SC 1305 ). In that case a landlord of certain premises filed an action in ejectment against the tenant and the sub-tenant in respect of premises on the ground that the tenant had sub-let the premises without the landlords consent. The Trial Judge decreed the suit holding that the landlord had not acquiesced in the sub-letting. The sub-tenant alone appealed to the Additional Senior Subordinate Judge who set aside the order of the Trial, however, unnecessary to examine those decisions for, in our judgment, the question has been considered by this Court in Karam Singh Sobti v. Shri Pratap Chand, (1964) 4 SCR 647 = (AIR 1964 SC 1305 ). In that case a landlord of certain premises filed an action in ejectment against the tenant and the sub-tenant in respect of premises on the ground that the tenant had sub-let the premises without the landlords consent. The Trial Judge decreed the suit holding that the landlord had not acquiesced in the sub-letting. The sub-tenant alone appealed to the Additional Senior Subordinate Judge who set aside the order of the TrialCourt. It was urged before this Court that the appeal by the sub-tenant to the Subordinate Judge was incompetent, because the tenant against whom a decree in ejectment was passed had not appealed. On certain questions which are not material for the purpose of this judgment, there was difference of opinion between Sarkar, J., on the one hand, and S. K. Das Acting C. J. and Hidayatullah J., on the other, but the Court unanimously held in that case that the appeal was maintainable before the Subordinate Judge, even though the tenant had not appealed against the order of the Court of Firstin the appeal filed by Ratan Lal there is no possibility of a decree being passed which may impose a more onerous liability upon Mohan Singh. The Trial Court has passed a decree against Ratan Lal and Mohan Singh jointly and severally. Mohan Singh is liable for the full amount of the claim of the plaintiffs. If the appeal filed by Ratan Lal succeeds, the Court may reduce the liability of Mohan Singh, but there may conceivably be no order by the Court operating to the prejudice of Mohan Singh in theis not possible on the record, as it stands, to say whether failure to serve notice of appeal upon Mohan Singh was wholly attributable to the negligence of Ratan Lal. But even if it be assumed that he was negligent, on that ground he cannot be deprived of his legal right to prosecute the appeal and to claim relief under Order 41, Rule 4 of the Code of Civil Procedure, if the circumstances of the case warrant it.The decree of the Trial Court proceeded on a ground common to Mohan Singh and Ratan Lal. In the appeal filed by Ratan Lal he was denying liability for the claim of the plaintiffs in its entirety. This was essentially a case in which the Courts jurisdiction under Order 41, Rule 4, Code of Civil Procedure could be exercised. | 1 | 1,596 | 804 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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proceeds on any ground common to all the plaintiffs or to all the defendants, any one of the plaintiffs or of the defendants may appeal from the whole decree, and thereupon the Appellate Court may reverse or vary the decree in favour of all the plaintiffs or defendants, as the case may be."The object of the rule is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The Court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant.There was some conflict of judicial opinion in the High Courts on the question whether power under Order 41, Rule 4 of the Code of Civil Procedure may be exercised where all the parties against whom a decree is passed on a ground which is common to them are not impleaded in the appeal. The preponderance of authority in the High Court was that even in the absence of a person against whom a decree has been passed on a ground common with the appellant the appeal was maintainable and appropriate relief may be granted. It is, however, unnecessary to examine those decisions for, in our judgment, the question has been considered by this Court in Karam Singh Sobti v. Shri Pratap Chand, (1964) 4 SCR 647 = (AIR 1964 SC 1305 ). In that case a landlord of certain premises filed an action in ejectment against the tenant and the sub-tenant in respect of premises on the ground that the tenant had sub-let the premises without the landlords consent. The Trial Judge decreed the suit holding that the landlord had not acquiesced in the sub-letting. The sub-tenant alone appealed to the Additional Senior Subordinate Judge who set aside the order of the Trial Court. It was urged before this Court that the appeal by the sub-tenant to the Subordinate Judge was incompetent, because the tenant against whom a decree in ejectment was passed had not appealed. On certain questions which are not material for the purpose of this judgment, there was difference of opinion between Sarkar, J., on the one hand, and S. K. Das Acting C. J. and Hidayatullah J., on the other, but the Court unanimously held in that case that the appeal was maintainable before the Subordinate Judge, even though the tenant had not appealed against the order of the Court of First Instance. Sarkar, J., observed at p. 663 :"The suit had been filed both against the tenant and the sub-tenant, being respectively the Association and the appellant. One decree had been passed by the trial Judge against both. The appellant had his own right to appeal from that decree. That right could not be affected by the Associations decision not to file an appeal. There was one decree and, therefore, the appellant was entitled to have it set aside even though thereby the Association would also be freed from the decree. He cold say that decree was wrong and should be set aside as it was passed on the erroneous finding that the respondent had not acquiesced in the sub-letting by the Association to him. He could challenge that decree on any ground available. The lower appellate Court was therefore, quite competent in the appeal by the appellant from the joint decree in ejectment against him and the Association, to give him whatever relief he was found entitled to, even though the Association had filed no appeal."With that view S. K. Das, Acting C. J. and Hidayatullah, J., agreed; see p. 652. It is true that in that case the tenant was made a party to the appeal before the Subordinate Judge. But the judgment of the Court proceeded upon a larger ground that the sub-tenant had a right to appeal against the decree passed against him and that right was not affected by the tenants decision not to file an appeal.4. Counsel for the plaintiffs contended that the appeal filed by Ratan Lal if it be heard may possibly result in an order which may prejudicially affect Mohan Singh, and if Mohan Singh has no opportunity of being heard no decree may be passed against him, for to do so would be contrary to he fundamental rules of natural justice.But in the appeal filed by Ratan Lal there is no possibility of a decree being passed which may impose a more onerous liability upon Mohan Singh. The Trial Court has passed a decree against Ratan Lal and Mohan Singh jointly and severally. Mohan Singh is liable for the full amount of the claim of the plaintiffs. If the appeal filed by Ratan Lal succeeds, the Court may reduce the liability of Mohan Singh, but there may conceivably be no order by the Court operating to the prejudice of Mohan Singh in the appeal.5. It was also urged by counsel for the plaintiffs that Ratan Lal had been negligent in the High Court in prosecuting the appeal, and it would be putting a premium upon his negligence to allow him now to prosecute the appeal. It is not possible on the record, as it stands, to say whether failure to serve notice of appeal upon Mohan Singh was wholly attributable to the negligence of Ratan Lal. But even if it be assumed that he was negligent, on that ground he cannot be deprived of his legal right to prosecute the appeal and to claim relief under Order 41, Rule 4 of the Code of Civil Procedure, if the circumstances of the case warrant it.The decree of the Trial Court proceeded on a ground common to Mohan Singh and Ratan Lal. In the appeal filed by Ratan Lal he was denying liability for the claim of the plaintiffs in its entirety. This was essentially a case in which the Courts jurisdiction under Order 41, Rule 4, Code of Civil Procedure could be exercised.
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3. In our view the judgment of the High Court cannot be sustained. The appeal could not be dismissed on the ground that Mohan Singh was not served with the notice of appeal, nor could the appeal be dismissed on the ground that there was a possibility of two conflictingobject of the rule is to enable one of the parties to a suit to obtain relief in appeal when the decree appealed from proceeds on a ground common to him and others. The Court in such an appeal may reverse or vary the decree in favour of all the parties who are in the same interest as the appellant.There was some conflict of judicial opinion in the High Courts on the question whether power under Order 41, Rule 4 of the Code of Civil Procedure may be exercised where all the parties against whom a decree is passed on a ground which is common to them are not impleaded in the appeal. The preponderance of authority in the High Court was that even in the absence of a person against whom a decree has been passed on a ground common with the appellant the appeal was maintainable and appropriate relief may beis, however, unnecessary to examine those decisions for, in our judgment, the question has been considered by this Court in Karam Singh Sobti v. Shri Pratap Chand, (1964) 4 SCR 647 = (AIR 1964 SC 1305 ). In that case a landlord of certain premises filed an action in ejectment against the tenant and the sub-tenant in respect of premises on the ground that the tenant had sub-let the premises without the landlords consent. The Trial Judge decreed the suit holding that the landlord had not acquiesced in the sub-letting. The sub-tenant alone appealed to the Additional Senior Subordinate Judge who set aside the order of the Trial, however, unnecessary to examine those decisions for, in our judgment, the question has been considered by this Court in Karam Singh Sobti v. Shri Pratap Chand, (1964) 4 SCR 647 = (AIR 1964 SC 1305 ). In that case a landlord of certain premises filed an action in ejectment against the tenant and the sub-tenant in respect of premises on the ground that the tenant had sub-let the premises without the landlords consent. The Trial Judge decreed the suit holding that the landlord had not acquiesced in the sub-letting. The sub-tenant alone appealed to the Additional Senior Subordinate Judge who set aside the order of the TrialCourt. It was urged before this Court that the appeal by the sub-tenant to the Subordinate Judge was incompetent, because the tenant against whom a decree in ejectment was passed had not appealed. On certain questions which are not material for the purpose of this judgment, there was difference of opinion between Sarkar, J., on the one hand, and S. K. Das Acting C. J. and Hidayatullah J., on the other, but the Court unanimously held in that case that the appeal was maintainable before the Subordinate Judge, even though the tenant had not appealed against the order of the Court of Firstin the appeal filed by Ratan Lal there is no possibility of a decree being passed which may impose a more onerous liability upon Mohan Singh. The Trial Court has passed a decree against Ratan Lal and Mohan Singh jointly and severally. Mohan Singh is liable for the full amount of the claim of the plaintiffs. If the appeal filed by Ratan Lal succeeds, the Court may reduce the liability of Mohan Singh, but there may conceivably be no order by the Court operating to the prejudice of Mohan Singh in theis not possible on the record, as it stands, to say whether failure to serve notice of appeal upon Mohan Singh was wholly attributable to the negligence of Ratan Lal. But even if it be assumed that he was negligent, on that ground he cannot be deprived of his legal right to prosecute the appeal and to claim relief under Order 41, Rule 4 of the Code of Civil Procedure, if the circumstances of the case warrant it.The decree of the Trial Court proceeded on a ground common to Mohan Singh and Ratan Lal. In the appeal filed by Ratan Lal he was denying liability for the claim of the plaintiffs in its entirety. This was essentially a case in which the Courts jurisdiction under Order 41, Rule 4, Code of Civil Procedure could be exercised.
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Rashmi Metaliks Ltd. Vs. Kolkata Metrop. Dev. Auth. | law pertaining to tenders; the later decision of the co-ordinate Bench in Siemens is in the nature of annals of previous decisions on the point. 10. With this brief analysis of the decisions cited at the Bar, we shall now return to the essential factors that shall determine our decision. The two clauses that have been debated before us have already been reproduced by us above. The learned Single Judge had returned the finding that the Appellant-company?s tender did not correspond to the essential term of the ‘Invitation to Tender? in two respects : a) The alleged blacklisting of the Appellant-company as postulated in clause (i); and b) The Appellant-company?s failure to furnish/forward the latest Income Tax Return, as envisaged in clause (j). 11. The letter rejecting the Appellant-company?s offer reads thus : ?Subject: KMDA: Disqualify for Tender No.:01/ KMDA / MAT / CE/2013-2014 Date : Mon, 22 Jul 2013 18:13:22 +0530 (IST) From: tender [email protected] To: [email protected] Dear RASHI METALIKS LIMITED, Important Notice: This is to inform that your bid has been disqualified for the tender invited by KMDA Tender No.: 01 / KMDA / MAT / CE / 2013-2014 Line No.: 01 Name of Work : SUPPLY and DELIVERY OF DIFFERENT DIAMETERS OF DISS K 7 and K 9 PIPES AT DIFFERENT LOCATION WITHIN KOLKATA METROPOLITAN AREA Reason for Disqualification : company not having submitted its latest income tax return along with its Bid. With regards Tendering Authority? 12. So far as the first point is concerned, it needs to be dealt with short shrift for the reason that the Courts below have not thought it relevant for discussion, having, in their wisdom, considered it sufficient to non-suit the Appellant-company for its failure on the second count. It has, however, been explained by Mr. Vishwanathan, learned Senior Counsel for the Appellant-company that at the material time there was no blacklisting or delisting of the Appellant-company and that in those circumstances it was not relevant to make any disclosure in this regard. The very fact that the Tendering Authority, in terms of its communication dated 22nd July 2013 had not adverted to this ground at all, lends credence to the contention that a valid argument had been proffered had this ground been raised. Regardless of the weight, pithiness or sufficiency of the explanation given by the Appellant-company in this regard, this issue in its entirety has become irrelevant for our cogitation for the reason that it does not feature as a reason for the impugned rejection. This ground should have been articulated at the very inception itself, and now it is not forensically fair or permissible for the Authority or any of the Respondents to adopt this ground for the first time in this second salvo of litigation by way of a side wind. The impugned Judgment is indubitably a cryptic one and does not contain the reasons on which the decision is predicated. Since reasons are not contained in the impugned Judgment itself, it must be set aside on the short ground that a party cannot be permitted to travel beyond the stand adopted and expressed by it in its earlier decision. The following observations found in the celebrated decision in Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851 are relevant to this question : ?8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16 ) (at p.18): ?Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow order.? 13. So far as clause (j) of the detailed notice inviting E-tender No.01/KMDA/MAT/CE/2013-2014 dated 10.5.2013 emanating from the office of the Chief Engineer is concerned, it seems to us that contrary to the conclusion in the impugned judgment, the clause is not an essential element or ingredient or concomitant of the subject NIT. In the course of hearing, the Income Tax Return has been filed by the Appellant-company and scrutinized by us. For the Assessment Year 2011-2012, the gross income of the Appellant-company was Rs.15,34,05,627, although, for the succeeding Assessment Year 2012-2013, the income tax was NIL, but substantial tax had been deposited. We think that the Income Tax Return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest Income Tax Return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the Appellant- company and if even thereafter no rectification had been carried out, the position may have been appreciably different. It has been asserted on behalf of the Appellant-company, and not denied by the learned counsel for the Respondent-Authority, that the financial bid of the Appellant-company is substantially lower than that of the others, and, therefore, pecuniarily preferable. 14. In this analysis, we | 1[ds]12. So far as the first point is concerned, it needs to be dealt with short shrift for the reason that the Courts below have not thought it relevant for discussion, having, in their wisdom, considered it sufficient to non-suit the Appellant-company for its failure on the second count. It has, however, been explained by Mr. Vishwanathan, learned Senior Counsel for the Appellant-company that at the material time there was no blacklisting or delisting of the Appellant-company and that in those circumstances it was not relevant to make any disclosure in this regard. The very fact that the Tendering Authority, in terms of its communication dated 22nd July 2013 had not adverted to this ground at all, lends credence to the contention that a valid argument had been proffered had this ground been raised. Regardless of the weight, pithiness or sufficiency of the explanation given by the Appellant-company in this regard, this issue in its entirety has become irrelevant for our cogitation for the reason that it does not feature as a reason for the impugned rejection. This ground should have been articulated at the very inception itself, and now it is not forensically fair or permissible for the Authority or any of the Respondents to adopt this ground for the first time in this second salvo of litigation by way of a side wind. The impugned Judgment is indubitably a cryptic one and does not contain the reasons on which the decision is predicated. Since reasons are not contained in the impugned Judgment itself, it must be set aside on the short ground that a party cannot be permitted to travel beyond the stand adopted and expressed by it in its earlier decision13. So far as clause (j) of the detailed notice inviting E-tender No.01/KMDA/MAT/CE/2013-2014 dated 10.5.2013 emanating from the office of the Chief Engineer is concerned, it seems to us that contrary to the conclusion in the impugned judgment, the clause is not an essential element or ingredient or concomitant of the subject NIT. In the course of hearing, the Income Tax Return has been filed by the Appellant-company and scrutinized by us. For the Assessment Year 2011-2012, the gross income of the Appellant-company was Rs.15,34,05,627, although, for the succeeding Assessment Year 2012-2013, the income tax was NIL, but substantial tax had been deposited. We think that the Income Tax Return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest Income Tax Return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the Appellant- company and if even thereafter no rectification had been carried out, the position may have been appreciably different. It has been asserted on behalf of the Appellant-company, and not denied by the learned counsel for the Respondent-Authority, that the financial bid of the Appellant-company is substantially lower than that of the others, and, therefore, pecuniarily preferable. | 1 | 3,659 | 587 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
law pertaining to tenders; the later decision of the co-ordinate Bench in Siemens is in the nature of annals of previous decisions on the point. 10. With this brief analysis of the decisions cited at the Bar, we shall now return to the essential factors that shall determine our decision. The two clauses that have been debated before us have already been reproduced by us above. The learned Single Judge had returned the finding that the Appellant-company?s tender did not correspond to the essential term of the ‘Invitation to Tender? in two respects : a) The alleged blacklisting of the Appellant-company as postulated in clause (i); and b) The Appellant-company?s failure to furnish/forward the latest Income Tax Return, as envisaged in clause (j). 11. The letter rejecting the Appellant-company?s offer reads thus : ?Subject: KMDA: Disqualify for Tender No.:01/ KMDA / MAT / CE/2013-2014 Date : Mon, 22 Jul 2013 18:13:22 +0530 (IST) From: tender [email protected] To: [email protected] Dear RASHI METALIKS LIMITED, Important Notice: This is to inform that your bid has been disqualified for the tender invited by KMDA Tender No.: 01 / KMDA / MAT / CE / 2013-2014 Line No.: 01 Name of Work : SUPPLY and DELIVERY OF DIFFERENT DIAMETERS OF DISS K 7 and K 9 PIPES AT DIFFERENT LOCATION WITHIN KOLKATA METROPOLITAN AREA Reason for Disqualification : company not having submitted its latest income tax return along with its Bid. With regards Tendering Authority? 12. So far as the first point is concerned, it needs to be dealt with short shrift for the reason that the Courts below have not thought it relevant for discussion, having, in their wisdom, considered it sufficient to non-suit the Appellant-company for its failure on the second count. It has, however, been explained by Mr. Vishwanathan, learned Senior Counsel for the Appellant-company that at the material time there was no blacklisting or delisting of the Appellant-company and that in those circumstances it was not relevant to make any disclosure in this regard. The very fact that the Tendering Authority, in terms of its communication dated 22nd July 2013 had not adverted to this ground at all, lends credence to the contention that a valid argument had been proffered had this ground been raised. Regardless of the weight, pithiness or sufficiency of the explanation given by the Appellant-company in this regard, this issue in its entirety has become irrelevant for our cogitation for the reason that it does not feature as a reason for the impugned rejection. This ground should have been articulated at the very inception itself, and now it is not forensically fair or permissible for the Authority or any of the Respondents to adopt this ground for the first time in this second salvo of litigation by way of a side wind. The impugned Judgment is indubitably a cryptic one and does not contain the reasons on which the decision is predicated. Since reasons are not contained in the impugned Judgment itself, it must be set aside on the short ground that a party cannot be permitted to travel beyond the stand adopted and expressed by it in its earlier decision. The following observations found in the celebrated decision in Mohinder Singh Gill vs. The Chief Election Commissioner, New Delhi, AIR 1978 SC 851 are relevant to this question : ?8. The second equally relevant matter is that when a statutory functionary makes an order based on certain grounds, its validity must be judged by the reasons so mentioned and cannot be supplemented by fresh reasons in the shape of affidavit or otherwise. Otherwise, an order bad in the beginning may, by the time it comes to court on account of a challenge, get validated by additional grounds later brought out. We may here draw attention to the observations of Bose J. in Gordhandas Bhanji (AIR 1952 SC 16 ) (at p.18): ?Public orders publicly made, in exercise of a statutory authority cannot be construed in the light of explanations subsequently given by the officer making the order of what he meant, or of what was in his mind, or what he intended to do. Public orders made by public authorities are meant to have public effect and are intended to affect the acting and conduct of those to whom they are addressed and must be construed objectively with reference to the language used in the order itself. Orders are not like old wine becoming better as they grow order.? 13. So far as clause (j) of the detailed notice inviting E-tender No.01/KMDA/MAT/CE/2013-2014 dated 10.5.2013 emanating from the office of the Chief Engineer is concerned, it seems to us that contrary to the conclusion in the impugned judgment, the clause is not an essential element or ingredient or concomitant of the subject NIT. In the course of hearing, the Income Tax Return has been filed by the Appellant-company and scrutinized by us. For the Assessment Year 2011-2012, the gross income of the Appellant-company was Rs.15,34,05,627, although, for the succeeding Assessment Year 2012-2013, the income tax was NIL, but substantial tax had been deposited. We think that the Income Tax Return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest Income Tax Return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the Appellant- company and if even thereafter no rectification had been carried out, the position may have been appreciably different. It has been asserted on behalf of the Appellant-company, and not denied by the learned counsel for the Respondent-Authority, that the financial bid of the Appellant-company is substantially lower than that of the others, and, therefore, pecuniarily preferable. 14. In this analysis, we
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12. So far as the first point is concerned, it needs to be dealt with short shrift for the reason that the Courts below have not thought it relevant for discussion, having, in their wisdom, considered it sufficient to non-suit the Appellant-company for its failure on the second count. It has, however, been explained by Mr. Vishwanathan, learned Senior Counsel for the Appellant-company that at the material time there was no blacklisting or delisting of the Appellant-company and that in those circumstances it was not relevant to make any disclosure in this regard. The very fact that the Tendering Authority, in terms of its communication dated 22nd July 2013 had not adverted to this ground at all, lends credence to the contention that a valid argument had been proffered had this ground been raised. Regardless of the weight, pithiness or sufficiency of the explanation given by the Appellant-company in this regard, this issue in its entirety has become irrelevant for our cogitation for the reason that it does not feature as a reason for the impugned rejection. This ground should have been articulated at the very inception itself, and now it is not forensically fair or permissible for the Authority or any of the Respondents to adopt this ground for the first time in this second salvo of litigation by way of a side wind. The impugned Judgment is indubitably a cryptic one and does not contain the reasons on which the decision is predicated. Since reasons are not contained in the impugned Judgment itself, it must be set aside on the short ground that a party cannot be permitted to travel beyond the stand adopted and expressed by it in its earlier decision13. So far as clause (j) of the detailed notice inviting E-tender No.01/KMDA/MAT/CE/2013-2014 dated 10.5.2013 emanating from the office of the Chief Engineer is concerned, it seems to us that contrary to the conclusion in the impugned judgment, the clause is not an essential element or ingredient or concomitant of the subject NIT. In the course of hearing, the Income Tax Return has been filed by the Appellant-company and scrutinized by us. For the Assessment Year 2011-2012, the gross income of the Appellant-company was Rs.15,34,05,627, although, for the succeeding Assessment Year 2012-2013, the income tax was NIL, but substantial tax had been deposited. We think that the Income Tax Return would have assumed the character of an essential term if one of the qualifications was either the gross income or the net income on which tax was attracted. In many cases this is a salutary stipulation, since it is indicative of the commercial standing and reliability of the tendering entity. This feature being absent, we think that the filing of the latest Income Tax Return was a collateral term, and accordingly the Tendering Authority ought to have brought this discrepancy to the notice of the Appellant- company and if even thereafter no rectification had been carried out, the position may have been appreciably different. It has been asserted on behalf of the Appellant-company, and not denied by the learned counsel for the Respondent-Authority, that the financial bid of the Appellant-company is substantially lower than that of the others, and, therefore, pecuniarily preferable.
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M/S. Afloat Textiles (India) Limited & Another Vs. The Union of India & Others | been filed.7. Mr. V.S. Nankani, learned Advocate appearing on behalf of the petitioners submitted that the order passed by the Tribunal suffers from serious infirmities. Firstly, he submitted that the impugned order has been passed after four months of hearing the appeal, as a result whereof several documents relied upon by the petitioners have been omitted to be considered by the Tribunal. Secondly, Mr. Nankani submitted that during the pendency of the appeal, the licensing authorities had certified that the petitioners have fulfilled the export obligation and the agreement executed by the petitioners have been redeemed in terms of para 126 of the Handbook of Procedure, 1992-97. These facts were brought to the notice of the Tribunal by way of additional grounds. However, the Tribunal failed to consider these important documents and passed the impugned order. Thirdly, it was submitted that the findings given by the Tribunal to the effect that the petitioners have not produced any material to show that they have fulfilled the export obligations and that the export proceeds have been realized is factually incorrect. It was submitted that the petitioners had produced the orders passed by the licensing authorities to show that the export obligation has been fulfilled and all the licence conditions have been fulfilled. It was submitted that since the Tribunal totally lost sight of the above materials placed before it, the impugned order is liable to be quashed and set aside.8. Mr. A.J. Rana, learned Senior Advocate appearing on behalf of the respondents, on the other submitted that in the present case, in view of the clear admission on the part of the Vice President of the petitioners to the effect that the imported goods have been sold in the open market before the export obligations were fulfilled, it was amply clear that the petitioners have violated the conditions of the Exemption Notification No.204/92 and, therefore, no fault can be found with the order passed by the authorities below. Mr. Rana further submitted that when the petitioners have violated the conditions No. VI & VII of Notification No.204/92, the issuance of certificate by the licensing authorities in the year 2001 to the effect that the petitioners have fulfilled the export obligation, does not in any way affect the right of the Customs authorities to initiate action against the petitioners. It was submitted that since the petitioners had sold the goods in the open market in clear violation of the conditions set out in the Exemption Notification No.204/92 there is no infirmity in the order passed by the authorities below and, therefore, there is not merit whatsoever in these petitions and the same are liable to be dismissed.9. We have heard Counsel on both sides. In the present case, the Commissioner of Customs had confirmed the duty demand to the tune of Rs.1.17 crores and confiscated the seized goods and had also levied penalty of Rs.1 crore on the Company and Rs.10,00,000/- on Mr. K.L. Dingra, Vice President of the company inter alia on the ground that the conditions No. VI & VII of Notification No.204/92 have been violated. In the memo of appeal as well as in the written submissions, it was contended by the petitioners that there is no violation of conditions No. VI because the MODVAT credit taken on the inputs used in the manufacture of the respective products has already been reversed and as a result thereof, the grievance of the department to the extent that condition No. VI has been violation does not survive. As regards violation of condition No. VII of Notification No.204/92 is concerned, it was the contention of the petitioners that in view of the order passed by the Licensing authorities to the effect that the export obligation under the Quantity Based Advance Licence have been complied with by the petitioners and the agreement executed by the petitioners have been redeemed, the order passed by the Commissioner of Customs do not survive.10. Whether the certificate issued by the Licensing authority in the year 2001 to the effect that the export obligation has been fulfilled by the petitioners would have bearing on the findings given by the Commissioner to the effect that conditions set out in Notification No.204/92 was an issue raised in the appeal and the same was required to be answered by the Tribunal. The petitioners in the memo of appeal as well as in the written submissions have submitted that in view of the reversal of MODVAT credit, there is no violation of condition No. VI of Notification No.204/92 and in view of the findings given by the licensing authorities there is no violation of condition No. VII of Notification No.204/92. However, there is no clear finding recorded by the Tribunal on these issues. In these circumstances, the grievance of the petitioners that the belated judgment delivered by the Tribunal after four months from the date of hearing without considering the material facts on record has led to the miscarriage of justice seems to be justified.11. The Apex Court in the case of Standard Radiation Pvt. Ltd. V/s. Commissioner of Central Excise [143 E.L.T. 24 (S.C.)], has held that the Tribunal being the last fact finding authority is expected to discuss the facts in detail and not cursorily and come to briefly stated conclusions on that basis. In the present case specific plea is raised and canvassed before the Tribunal by adducing material and additional ground has been raised in that behalf. However, there is no clear finding recorded by the Tribunal on these issues at all. In these circumstances, we are of the opinion that the impugned order passed by the Tribunal is liable to be quashed and set aside. Accordingly, we quash the impugned order dated 22/4/2003 passed by CEGAT, Mumbai. The matter is remitted back to the CEGAT, Mumbai with directions to rehear the matter and dispose of the same on merits within three months from the date of receipt of Writ of this Court. All rival contentions are kept open. | 1[ds]10. Whether the certificate issued by the Licensing authority in the year 2001 to the effect that the export obligation has been fulfilled by the petitioners would have bearing on the findings given by the Commissioner to the effect that conditions set out in Notification No.204/92 was an issue raised in the appeal and the same was required to be answered by the Tribunal. The petitioners in the memo of appeal as well as in the written submissions have submitted that in view of the reversal of MODVAT credit, there is no violation of condition No. VI of Notification No.204/92 and in view of the findings given by the licensing authorities there is no violation of condition No. VII of Notification No.204/92. However, there is no clear finding recorded by the Tribunal on these issues. In these circumstances, the grievance of the petitioners that the belated judgment delivered by the Tribunal after four months from the date of hearing without considering the material facts on record has led to the miscarriage of justice seems to be justified.11. The Apex Court in the case of Standard Radiation Pvt. Ltd. V/s. Commissioner of Central Excise [143 E.L.T. 24 (S.C.)], has held that the Tribunal being the last fact finding authority is expected to discuss the facts in detail and not cursorily and come to briefly stated conclusions on that basis. In the present case specific plea is raised and canvassed before the Tribunal by adducing material and additional ground has been raised in that behalf. However, there is no clear finding recorded by the Tribunal on these issues at all. In these circumstances, we are of the opinion that the impugned order passed by the Tribunal is liable to be quashed and set aside. Accordingly, we quash the impugned order dated 22/4/2003 passed by CEGAT, Mumbai. The matter is remitted back to the CEGAT, Mumbai with directions to rehear the matter and dispose of the same on merits within three months from the date of receipt of Writ of this Court. All rival contentions are kept open. | 1 | 1,694 | 379 | ### 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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been filed.7. Mr. V.S. Nankani, learned Advocate appearing on behalf of the petitioners submitted that the order passed by the Tribunal suffers from serious infirmities. Firstly, he submitted that the impugned order has been passed after four months of hearing the appeal, as a result whereof several documents relied upon by the petitioners have been omitted to be considered by the Tribunal. Secondly, Mr. Nankani submitted that during the pendency of the appeal, the licensing authorities had certified that the petitioners have fulfilled the export obligation and the agreement executed by the petitioners have been redeemed in terms of para 126 of the Handbook of Procedure, 1992-97. These facts were brought to the notice of the Tribunal by way of additional grounds. However, the Tribunal failed to consider these important documents and passed the impugned order. Thirdly, it was submitted that the findings given by the Tribunal to the effect that the petitioners have not produced any material to show that they have fulfilled the export obligations and that the export proceeds have been realized is factually incorrect. It was submitted that the petitioners had produced the orders passed by the licensing authorities to show that the export obligation has been fulfilled and all the licence conditions have been fulfilled. It was submitted that since the Tribunal totally lost sight of the above materials placed before it, the impugned order is liable to be quashed and set aside.8. Mr. A.J. Rana, learned Senior Advocate appearing on behalf of the respondents, on the other submitted that in the present case, in view of the clear admission on the part of the Vice President of the petitioners to the effect that the imported goods have been sold in the open market before the export obligations were fulfilled, it was amply clear that the petitioners have violated the conditions of the Exemption Notification No.204/92 and, therefore, no fault can be found with the order passed by the authorities below. Mr. Rana further submitted that when the petitioners have violated the conditions No. VI & VII of Notification No.204/92, the issuance of certificate by the licensing authorities in the year 2001 to the effect that the petitioners have fulfilled the export obligation, does not in any way affect the right of the Customs authorities to initiate action against the petitioners. It was submitted that since the petitioners had sold the goods in the open market in clear violation of the conditions set out in the Exemption Notification No.204/92 there is no infirmity in the order passed by the authorities below and, therefore, there is not merit whatsoever in these petitions and the same are liable to be dismissed.9. We have heard Counsel on both sides. In the present case, the Commissioner of Customs had confirmed the duty demand to the tune of Rs.1.17 crores and confiscated the seized goods and had also levied penalty of Rs.1 crore on the Company and Rs.10,00,000/- on Mr. K.L. Dingra, Vice President of the company inter alia on the ground that the conditions No. VI & VII of Notification No.204/92 have been violated. In the memo of appeal as well as in the written submissions, it was contended by the petitioners that there is no violation of conditions No. VI because the MODVAT credit taken on the inputs used in the manufacture of the respective products has already been reversed and as a result thereof, the grievance of the department to the extent that condition No. VI has been violation does not survive. As regards violation of condition No. VII of Notification No.204/92 is concerned, it was the contention of the petitioners that in view of the order passed by the Licensing authorities to the effect that the export obligation under the Quantity Based Advance Licence have been complied with by the petitioners and the agreement executed by the petitioners have been redeemed, the order passed by the Commissioner of Customs do not survive.10. Whether the certificate issued by the Licensing authority in the year 2001 to the effect that the export obligation has been fulfilled by the petitioners would have bearing on the findings given by the Commissioner to the effect that conditions set out in Notification No.204/92 was an issue raised in the appeal and the same was required to be answered by the Tribunal. The petitioners in the memo of appeal as well as in the written submissions have submitted that in view of the reversal of MODVAT credit, there is no violation of condition No. VI of Notification No.204/92 and in view of the findings given by the licensing authorities there is no violation of condition No. VII of Notification No.204/92. However, there is no clear finding recorded by the Tribunal on these issues. In these circumstances, the grievance of the petitioners that the belated judgment delivered by the Tribunal after four months from the date of hearing without considering the material facts on record has led to the miscarriage of justice seems to be justified.11. The Apex Court in the case of Standard Radiation Pvt. Ltd. V/s. Commissioner of Central Excise [143 E.L.T. 24 (S.C.)], has held that the Tribunal being the last fact finding authority is expected to discuss the facts in detail and not cursorily and come to briefly stated conclusions on that basis. In the present case specific plea is raised and canvassed before the Tribunal by adducing material and additional ground has been raised in that behalf. However, there is no clear finding recorded by the Tribunal on these issues at all. In these circumstances, we are of the opinion that the impugned order passed by the Tribunal is liable to be quashed and set aside. Accordingly, we quash the impugned order dated 22/4/2003 passed by CEGAT, Mumbai. The matter is remitted back to the CEGAT, Mumbai with directions to rehear the matter and dispose of the same on merits within three months from the date of receipt of Writ of this Court. All rival contentions are kept open.
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10. Whether the certificate issued by the Licensing authority in the year 2001 to the effect that the export obligation has been fulfilled by the petitioners would have bearing on the findings given by the Commissioner to the effect that conditions set out in Notification No.204/92 was an issue raised in the appeal and the same was required to be answered by the Tribunal. The petitioners in the memo of appeal as well as in the written submissions have submitted that in view of the reversal of MODVAT credit, there is no violation of condition No. VI of Notification No.204/92 and in view of the findings given by the licensing authorities there is no violation of condition No. VII of Notification No.204/92. However, there is no clear finding recorded by the Tribunal on these issues. In these circumstances, the grievance of the petitioners that the belated judgment delivered by the Tribunal after four months from the date of hearing without considering the material facts on record has led to the miscarriage of justice seems to be justified.11. The Apex Court in the case of Standard Radiation Pvt. Ltd. V/s. Commissioner of Central Excise [143 E.L.T. 24 (S.C.)], has held that the Tribunal being the last fact finding authority is expected to discuss the facts in detail and not cursorily and come to briefly stated conclusions on that basis. In the present case specific plea is raised and canvassed before the Tribunal by adducing material and additional ground has been raised in that behalf. However, there is no clear finding recorded by the Tribunal on these issues at all. In these circumstances, we are of the opinion that the impugned order passed by the Tribunal is liable to be quashed and set aside. Accordingly, we quash the impugned order dated 22/4/2003 passed by CEGAT, Mumbai. The matter is remitted back to the CEGAT, Mumbai with directions to rehear the matter and dispose of the same on merits within three months from the date of receipt of Writ of this Court. All rival contentions are kept open.
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The Engineering Mazdoor Sabha Representing Workmen Employ Vs. The Hind Cycles Ltd., Bombay(And Connected Appeal) | the Industrial Tribunal from the statutory provisions themselves. In this connection, the provisions of S. 10 (2) may be taken into consideration. This clause deals with a case where the parties to an industrial dispute apply in the prescribed manner for a reference of their dispute to an appropriate authority, and it provides that the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly. In other words, if the parties agree that a dispute pending between them should be referred for adjudication, they move the appropriate Government, and the appropriate Government is bound to make the reference accordingly. Unlike cases falling under S.10 (1) where in the absence of an agreement between the parties it is in the discretion of the appropriate Government to refer or not to refer any industrial dispute for adjudication, under S. 10 (2) if there is an agreement between the parties the appropriate Government has to refer the dispute for adjudication. But the significant fact is that the reference has to be made by the appropriate Government and not by the parties, whereas under S. 10 A the reference is by the parties, to the arbitrator named by them and it is after the parties have named the arbitrator and entered into a written agreement in that behalf that the appropriate Government steps in to assist the further proceedings before the named arbitrator.21. Section 18 (2) is also helpful in this matter. It provides that an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. It would be noticed that this provision mentions the parties to the agreement as the parties who have referred the dispute to arbitration and that indicates that the act of reference is not the act of the appropriate Government, but the act of the parties themselves.22. Section 10A (5) may also be considered in this connection. If the reference to arbitration under S. 10A (1) had been made by the appropriate Government, then the Legislature could have easily used appropriate language in that behalf assimilating the arbitrator to the position of an Industrial Tribunal and in that case, it would not have been necessary to provide that the Arbitration Act will not apply to arbitrations under this section. The provisions of S. 10A (5) suggest that the proceedings contemplated by S. 10A are arbitration proceedings to which, but for sub-s. (5), the Arbitration Act would have applied.23. On behalf of the appellants, reliance has been placed on a recent decision of the Bombay High Court in the case of the Air Corporations Employees Union v. D. V. Vyas 64 Bom LR 1: (AIR 1962 Bom 274 ). In that case, the Bombay High Court has held that an arbitrator functioning under S. 10A is subject to the judicial superintendence of the High Court under Art. 227 of the Constitution and therefore, the High Court can entertain an application for a writ of certiorari in respect of the orders passed by the arbitrator. It was no doubt urged before the High Court that the arbitrator in question was not amenable to the jurisdiction of the High Court under Art. 227 because he was a private and not a statutory arbitrator; but the Court rejected the said contention and held that the proceedings before the arbitrator appointed under S. 10A had all the essential attributes of a statutory arbitration under S. 10 of the Act. From the judgment, it does not appear that the question about the construction of S. 10A was argued before the High Court or its attention was drawn to the obvious differences between the provisions of S. 10A and S. 10. Besides, the attention of the High was apparently not drawn to the tests laid down by this Court in dealing with the question as to when an adjudicating body or authority can be deemed to be a Tribunal under Art. 136.Like Art. 136, Art. 227 also refers to courts and Tribunals and what we have said about the character of the arbitrator appointed under S. 10A by reference to the requirements of Art. 136 may prima facie apply to the requirements of Art. 227. That, however, is a matter with which we are not directly concerned in the present appeals.24. Mr. Sule made a strong plea before us that if the arbitrator appointed under S. 10A was not treated as a Tribunal, it would lead to unreasonable consequences. He emphasised that the policy of the Legislature in enacting S. 10A was to encourage industrial employers and employees to avoid bitterness by referring their disputes voluntarily to the arbitrators of their own choice, but this laudable object would be defeated if it is realised by the parties that once reference is made under S. 10A the proceedings before the arbitrator are not subject to the scrutiny of this Court under Art. 136. It is extremely anomalous, says Mr. Sule, that parties aggrieved by an award made by such an arbitrator should be denied the protection of the relevant provisions of the Arbitration Act as well as the protection of the appellate jurisdiction of this Court under Art. 136. There is some force in this contention. It appears that in enacting Section 10A the Legislature probably did not realise that the position of an arbitrator contemplated therein would become anomalous in view of the fact that he was not assimilated to the status of an Industrial Tribunal and was taken out of the provisions of the Indian Arbitration Act. That, however, is a matter for the Legislature to consider.25. In the result, the preliminary objection raised by the respondents in the appeals before us must be upheld and the appeals dismissed on the ground that they are incompetent under Article 136. The appellants to pay the costs of the respondents in C. A.204 of 1962. No order as to costs in C. A. Nos. 182 and 183/1962. | 0[ds]3. Article 136 (I) provides that notwithstanding anything in this Chapter, the Supreme Court may, in its discretion, grant special leave to appeal from any judgment, decree, determination, sentence or order in any cause or matter passed or made by any court or tribunal in the territory of India.(2) excludes from the scope of(1) any judgment, determination, sentence or order passed or made by any court or tribunal constituted by or under any law relating to the Armed Forces. It is clear that Art. 136 (1) confers very wide powers on this Court and as such, its provisions have to be liberally construed. The Constitutionmakers thought it necessary to clothe this Court with very wide powers to deal with all orders and adjudications made by Courts and Tribunals in the territory of India in order to ensure fair administration of justice in this country. It is significant that whereas Arts. 133 (1) and 134 (1) provide for appeals to this Court against judgments, decrees or final orders passed by the High Courts, no such limitation is prescribed by Art,. 136 (1). All Courts and all tribunals in the territory of India except those in cl. (2) are subject to the appellate jurisdiction of this Court under Art. 136 (1.). It is also cleat that whereas the appellate jurisdiction of this Court under Arts. 133 (1) and 134 (1) can be invoked only against final orders, no such limitation is imposed by Art. 136 (1). In other words, the appellate jurisdiction o this Court under this latter provision can be exercised even against an interlocutory order or decision. Causes or matters covered by Art. 136(1) are all causes and matters that are brought for adjudication before Courts or Tribunals. The sweep of this provision is thus very wide. It is true that in exercising its powers under this Article, this Court in its discretion refuses to entertain applications for special leave where it appears to the Court that interference with the orders sought to be appealed against may not be necessary in the interest of justice. But the limitations thus introduced, in practice, are the limitations imposed by the Court itself in its discretion. They are not prescribed by Art. 136(1).4. For invoking Art. 136 (1), two conditions must be satisfied. The proposed appeal must be from any judgment, decree, determination, sentence or order, that is to say, it must not be against a purely executive or administrative order. If the determination or order giving rise to the appeal is a judicial ordetermination or order, the first condition is satisfied. The second condition imposed by the Article is that the said determination or order must have been made are passed by any Court or Tribunal in the territory of India. These conditions, therefore, require that the act complained against must have the character of judicial oract and the authority whose act is complained against must be a Court ore Tribunal. Unless both the conditions are satisfied, Art. 136 (1) cannot be invoked.5. The distinction between purely administrative or executive acts and judicial oracts has been considered by this Court on several occasions. In the case of Province of Bombay v. Khushaldas S. Advani, 1950 SCR 621: (AIR 1950 SC 222 ), Mahajan J. observed that the question whether an act is a judicial or aone or a purely executive act depends on the terms of the particular rules and the nature, scope and effect of the particular powers in exercise of which the act may be done and would, therefore, depend on the facts and circumstances of each case. Courts of law established by the State decide cases brought before them judiciary and the decisions thus recorded by them fall obviously under the category of judicial decisions. Administrative or executive bodies, on the other hand, are often called upon to reach decisions in several matters in a purely administrative or executive manner and these decisions fall clearly under the category of administrative or executive orders. Even judges have, in certain matters, to act administratively, while administrative or executive authorities may have to actin dealing with some matters entrusted to their jurisdiction. Where an authority is required to act judicially either by an express provision of the statute under which it acts or by necessary implication of the said statute the decisions of such an authority generally amount todecisions. Where, however, the executive or administrative bodies are not required to act judicially and are competent to deal with issues referred to them administratively, their conclusions cannot be treated asconclusions. No doubt, even while acting administratively, the authorities must act bona fide; but that is different from saying that they must act judicially.Bearing in mind this broad distinction between acts or orders which are judicial oron the one hand, and administrative or executive acts on the other, there is no difficulty in holding that the decisions of the arbitrators to whom industrial disputes are voluntarily referred under S. 10 A of the Act aredecisions and they amount to a determination or order under Art. 136 (1). This position is not seriously disputed before us. What is in dispute between the parties is not the character of the decisions against which the appeals have been filed, but it is the character of the authority which decided thedecision is opposite for our purpose because the question which came to be determined was in regard to the character of the Industrial Tribunals constituted under the Act. The majority decision of this Court was that the functions and duties of the Industrial Tribunal are very much like those of a body discharging judicial functions and so, though the Tribunal is not a Court, it is nevertheless a Tribunal for the purposes of Art. 136. In other words, the majority decision which, in a sense, washeld that the appellate jurisdiction of this Court under Art. 136 can be invoked in proper cases against awards and other orders made by Industrial Tribunals under the Act. In discussing the question as to character of the Industrial Tribunal functioning under the Act, Mahajan J. observed that the condition precedent for bringing a tribunal within the ambit of Art. 136 is that it should be constituted by the State, and he added that a Tribunal would be outside the ambit of Art .136 if it is not invested with any part of the judicial functions of the State but discharges purely administrative or executive duties. In the opinion of the learned Judge, Tribunals which are found invested with certain functions of a Court of justice and have some of its trappings also would fall within the ambit of Art. 136 and would be subject to the appellate control of this Court whenever it is found necessary to exercise that control in the interests of justice. It would thus be noticed that apart from the importance of the trappings of a Court, the basic and essential condition which makes an authority or a body a tribunal under Art. 136, is that it should be constituted by the State and should be invested with the States inherent judicial power. Since this test was satisfied by the Industrial Tribunals under the Act, according to the majority decision, it was held that the awards made by the Industrial Tribunals are subject to the appellate jurisdiction of this Court under Art. 136.On the which do not apply to an arbitration award. Sections 23 and 24 which prohibit strikes andare inapplicable to the proceedings before the arbitrator to whom a reference is made under S. l0A, and that shows that the Act has treated the arbitration award and the prior proceedings in relation to it as standing on a different basis from an award and the prior proceedings before the industrial Tribunals or Labour Courts. Section 20, which deals with the commencement and conclusion of proceeding, provides, inter alia, by(3) that proceedings before an arbitrator under S. 10A shall be deemed to have commenced on the date of the reference of the dispute for arbitration and such proceedings shall be deemed to have concluded on the date on which the award becomes enforceable under S. 17A. It would be noticed that just as in the case of proceedings before the Industrial Tribunal commencement of the proceedings is marked by the reference under S. 10, so the commencement of the proceedings before the arbitrator is marked by the reference made by the parties themselves, and that means the commencement of the proceedings takes place even before the appropriate Government has entered on the scene and has taken any action in pursuance of the provisions of S. 10A.12. Rules have been framed by the Central Government and some of the State Governments under S. 38 (2)(aa), and these rules make provisions for the form of arbitration agreement, the place and time of hearing, the power of the arbitrator to take evidence, the manner in which the summons should be served, the powers of the arbitrator to proceed ex parte, if necessary, and the power to correct mistakes in the award and such other matters. Some of these Rules (as for instance, Central Rr. 7, 8, 13, 15, 16 and 18 to 28) seem to make a distinction between an arbitrator and the other authorities under the Act, whereas the Rules framed by some of the States (for instance the Rules framed by the Madras State 31, 37, 38, 39, 40, 41 and 42) seem to treat the arbitrator on the same basis as the other appropriate authorities under the Act. That, shortly, stated, is the position of the relevant provisions of the Statute and the Rules framed thereunder. It is in the light of these provisions that we must now consider the character of the arbitrator who enters upon arbitration proceedings as a result of the reference made to him under S.may be that the arbitration award is treated as an award for certain purposes under the Act; but the position, in law, still remains that it is an award made by an arbitrator appointed by the parties. Just as an award made by a private arbitrator becomes a decree subject to the provisions of Ss. 15, 16, 17 and 30 of the Arbitration Act, and thus binds the parties, so does an award of the arbitrator under S. 10A become binding on the parties by virtue of the relevant provisions of the Act. Against an award made by a private arbitrator, no writ can issue under Art. 225; much less can an appeal lie under Art 136. The position with regard to the award made by an arbitrator under S 10A is no different. In support of this argument, he has relied on the decision in R. v. Disputes Committee of National Joint Council for the Craft of Dental Technicians (1953) 1 All ER 327. On a motion for an order of certiorari to quash an order made by the Disputes Committee, Lord Goddard C. J. held that the Court has no power to direct the issue of orders of certiorari or of prohibition addressed to an arbitrator directing that a decision by him should be quashed or that he be prohibited from proceeding in an arbitration, unless he is acting under powers conferred by statute. "There is no instance of which I know in the books", observed Lord Goddard, "where certiorari or prohibition has gone to any arbitrator, except a statutory arbitrator, and a statutory arbitrator is a person to whom, by statute, the parties must resort." Thesuggests that though some powers have been conferred on the arbitrator appointed under S. 10A, he cannot be treated as a statutory arbitrator, because the parties are not compelled to go to any person named as such by the statute. The arbitrator is an arbitrator, of the parties choice and so, he cannot be treated as a statutoryit would be appropriate to treat him as a statutory arbitrator and as such, a writ of certiorari would lie against his decision under Art. 226. In support of this argument, Mr. Pai has referred us to the decision of the Court of Appeal in The King v. Electricity Commissioners, Ex parse London Electricity Joint Committee Co. (1920) Ltd., (1924) 1 KB 171. In that case, the scheme framed by the Electricity Commissioners established by S. 1 of the Electricity (Supply) Act, 1919, was challenged and it was held that the impugned scheme was ultra vires, and so, a writ of prohibition was issued prohibiting the Commissioners from proceeding with the further consideration of the Scheme. Dealing with the question as to whether a writ can issue against a body like the Electricity Commissioners constituted under the Act, Lord Atkin referred to the genesis and the history of the writs of prohibition and certiorari and held that the operation of the writs has extended to control the proceedings of bodies which do not claim to be, and would not be recognised as, Courts of Justice. Wherever any body of persons having legal authority to determine questions affecting the rights of subjects, and having the duty to act judicially act in excess of their legal authority they are subject to the controlling jurisdiction of the kings Bench Division exercised in these writs (p.205). Then Lord Atkin referred to a large number of previous decisions in which writs had been issued against different authorities statutorily entrusted with the discharge of different duties. To the same effect is the decision in the case of R. v. Northumber land Compensation Appeal Tribunal, Ex parte Shaw, (1931) 1 All ER 268 Vide also Halsburys Laws of England Vol. 2 p. 62 and Vol. 11 p. 122.15. The argument, therefore is that against an award pronounced by an arbitrator appointed under S. 10A, a writ of certiorari would lie under Art. 226, and so, the arbitrator should be deemed to be a Tribunal even for the purpose of Art. 136. In our opinion, this argument is notArt. 226 under which a writ of certiorari can be issued in an appropriate case, is, in a sense, wider than Art. 136, because the power conferred on the High Courts to issue certain writs is not conditioned or limited by the requirement that the said writs can be issued only against the orders of Courts of Tribunals. Under Art. 226 (1), an appropriate writ can be issued to any person or authority, including in appropriate cases any Government, within the territories prescribed. Therefore even if the arbitrator appointed under S. 10 A is not a Tribunal under Art. 136 in a proper case, a writ may lie against his award under Art. 226. That is why the argument that a writ may lie against an award made by such an arbitrator does not materially assist the appellants case that the arbitrator in question is a tribunal under Art. 136.That takes us to the construction of S. 10A. Section 10A enables the employer and the workmen to refer their dispute to arbitration by a written agreement before such a dispute has been referred to the Labour Court or Tribunal or National Tribunal under S. 10. If an industrial dispute exists or is apprehended, the appropriate Government may refer it for adjudication under S.10; but before such a reference is made, it is open to the parties to agree to refer their dispute to the arbitration of a person of their choice and if they decide to adopt that course, they have to reduce their agreement tothe parties reduce their agreement to writing, the reference shall be to such person as may be specified in the arbitration agreement. The section is not very happily worded; but the essential features of its scheme are not in doubt. If a reference has not been made under S. 10, the parties can agree to refer their dispute to the arbitrator of their choice, the agreement is followed by writing, the writing specifies the arbitrator or arbitrators to whom the reference is to be made and the reference shall be made accordingly to such arbitrator or arbitrators. Mr. Sule contendsand it is no doubt an ingenious argumentthat the last cl. of S. 10A means that after the written agreement is entered into by the parties, the reference shall be made to the person named by the agreement but it shall be made by the appropriate Government. In other words, the argument is that if the parties enter into a written agreement as to the person who should adjudicate upon their disputes, it is the Government that steps in and makes the reference to such named person. The arbitrator or arbitrators are initially named by the parties by consent, but it is when a reference is made to him or them by the appropriate Government that the arbitrator or arbitrators is or are clothed with the authority to adjudicate, and so, it is urged that the act of reference which is the act of the appropriate Government makes the arbitrator an industrial Tribunal and he is thereby invested with the States inherent judicial power.19. We do not think that the section is capable of this construction. The last clause which says that the reference shall be to such person or persons, grammatically must mean that after the written agreement is entered into specifying the person or persons, the reference shall be to such person or persons. We do not think that on the words as they stand, it is possible to introduce the Government at any stage of the operation of S. 10A (1). The said provision deals with what the parties can do and provides that if the parties agree and reduce their agreement to writing, a reference shall be to the person or persons named by such writing. The fact that the parties can agree to refer their dispute to the Labour Court, Tribunal or National Tribunal makes no difference to the construction of the provision.(2) prescribes the form of agreement and this form also supports the same construction. This form requires that the parties should state that they have agreed to refer the subsisting industrial dispute to the arbitration of the persons to be named in the form. Then it is required that the matters in dispute should be specified and several other details indicated. The form ends with the statement that the parties agree that the majority decision of the arbitrators shall be binding on them. This form is to be signed by the respective parties and to be attested by two witnesses. In other words, there is no doubt that the form prescribed by S. 10A(2) is exactly similar to the arbitration agreement, It refers to the dispute, it names the arbitrator and it binds the parties to abide by the majority decision of the arbitrators. Thus, it is clear that what S. 10A contemplates is carried out by prescribing an appropriate form under S. 10A(2).20. After the prescribed form is thus duly signed by the parties and attested, under subsection (3) a copy of it has to be forwarded to the appropriate Government and the conciliation officer and the appropriate Government has, within fourteen days from the date of the receipt of such copy, to publish the same in the official Gazette. The publication of the copy is, in a sense, a ministerial act and the appropriate Government has no discretion in the matter. Sub section (4) provides that the arbitrator shall investigate the dispute and submit his award to the appropriate Government ; and(5) excludes the application of the Arbitration Act to the arbitrations provided for by S. 10A. It is thus clear that when S. 10A (4) provides that the arbitrator shall investigate the dispute, it merely asks the arbitrator to exercise the powers which have been conferred on him by agreement of the parties under S. 10A (1). There is no doubt that the appropriate Government plays some part in these arbitrationpublishes the agreement; it requires the arbitration award to be submitted to it; then it publishes the award; and in that sense, some of the features which characterise the proceedings before the Industrial Tribunal before an award is pronounced and which characterise the subsequent steps to be taken in respect of such an award, are common to the proceedings before the arbitrator and the award that he may make. But the similarity of these features cannot disguise the fact that the initial and the inherent power to adjudicate upon the dispute is derived by the arbitrator from the parties agreement, whereas it is derived by the Industrial Tribunal from the statutory provisions themselves. In this connection, the provisions of S. 10 (2) may be taken into consideration. This clause deals with a case where the parties to an industrial dispute apply in the prescribed manner for a reference of their dispute to an appropriate authority, and it provides that the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly. In other words, if the parties agree that a dispute pending between them should be referred for adjudication, they move the appropriate Government, and the appropriate Government is bound to make the reference accordingly. Unlike cases falling under S.10 (1) where in the absence of an agreement between the parties it is in the discretion of the appropriate Government to refer or not to refer any industrial dispute for adjudication, under S. 10 (2) if there is an agreement between the parties the appropriate Government has to refer the dispute for adjudication. But the significant fact is that the reference has to be made by the appropriate Government and not by the parties, whereas under S. 10 A the reference is by the parties, to the arbitrator named by them and it is after the parties have named the arbitrator and entered into a written agreement in that behalf that the appropriate Government steps in to assist the further proceedings before the namedthat case, the Bombay High Court has held that an arbitrator functioning under S. 10A is subject to the judicial superintendence of the High Court under Art. 227 of the Constitution and therefore, the High Court can entertain an application for a writ of certiorari in respect of the orders passed by the arbitrator. It was no doubt urged before the High Court that the arbitrator in question was not amenable to the jurisdiction of the High Court under Art. 227 because he was a private and not a statutory arbitrator; but the Court rejected the said contention and held that the proceedings before the arbitrator appointed under S. 10A had all the essential attributes of a statutory arbitration under S. 10 of the Act. From the judgment, it does not appear that the question about the construction of S. 10A was argued before the High Court or its attention was drawn to the obvious differences between the provisions of S. 10A and S. 10. Besides, the attention of the High was apparently not drawn to the tests laid down by this Court in dealing with the question as to when an adjudicating body or authority can be deemed to be a Tribunal under Art. 136.Like Art. 136, Art. 227 also refers to courts and Tribunals and what we have said about the character of the arbitrator appointed under S. 10A by reference to the requirements of Art. 136 may prima facie apply to the requirements of Art. 227. That, however, is a matter with which we are not directly concerned in the present appeals.In the result, the preliminary objection raised by the respondents in the appeals before us must be upheld and the appeals dismissed on the ground that they are incompetent under Article 136. The appellants to pay the costs of the respondents in C. A.204 of 1962. No order as to costs in C. A. Nos. 182 and 183/1962. | 0 | 7,869 | 4,422 | ### Instruction:
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the Industrial Tribunal from the statutory provisions themselves. In this connection, the provisions of S. 10 (2) may be taken into consideration. This clause deals with a case where the parties to an industrial dispute apply in the prescribed manner for a reference of their dispute to an appropriate authority, and it provides that the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly. In other words, if the parties agree that a dispute pending between them should be referred for adjudication, they move the appropriate Government, and the appropriate Government is bound to make the reference accordingly. Unlike cases falling under S.10 (1) where in the absence of an agreement between the parties it is in the discretion of the appropriate Government to refer or not to refer any industrial dispute for adjudication, under S. 10 (2) if there is an agreement between the parties the appropriate Government has to refer the dispute for adjudication. But the significant fact is that the reference has to be made by the appropriate Government and not by the parties, whereas under S. 10 A the reference is by the parties, to the arbitrator named by them and it is after the parties have named the arbitrator and entered into a written agreement in that behalf that the appropriate Government steps in to assist the further proceedings before the named arbitrator.21. Section 18 (2) is also helpful in this matter. It provides that an arbitration award which has become enforceable shall be binding on the parties to the agreement who referred the dispute to arbitration. It would be noticed that this provision mentions the parties to the agreement as the parties who have referred the dispute to arbitration and that indicates that the act of reference is not the act of the appropriate Government, but the act of the parties themselves.22. Section 10A (5) may also be considered in this connection. If the reference to arbitration under S. 10A (1) had been made by the appropriate Government, then the Legislature could have easily used appropriate language in that behalf assimilating the arbitrator to the position of an Industrial Tribunal and in that case, it would not have been necessary to provide that the Arbitration Act will not apply to arbitrations under this section. The provisions of S. 10A (5) suggest that the proceedings contemplated by S. 10A are arbitration proceedings to which, but for sub-s. (5), the Arbitration Act would have applied.23. On behalf of the appellants, reliance has been placed on a recent decision of the Bombay High Court in the case of the Air Corporations Employees Union v. D. V. Vyas 64 Bom LR 1: (AIR 1962 Bom 274 ). In that case, the Bombay High Court has held that an arbitrator functioning under S. 10A is subject to the judicial superintendence of the High Court under Art. 227 of the Constitution and therefore, the High Court can entertain an application for a writ of certiorari in respect of the orders passed by the arbitrator. It was no doubt urged before the High Court that the arbitrator in question was not amenable to the jurisdiction of the High Court under Art. 227 because he was a private and not a statutory arbitrator; but the Court rejected the said contention and held that the proceedings before the arbitrator appointed under S. 10A had all the essential attributes of a statutory arbitration under S. 10 of the Act. From the judgment, it does not appear that the question about the construction of S. 10A was argued before the High Court or its attention was drawn to the obvious differences between the provisions of S. 10A and S. 10. Besides, the attention of the High was apparently not drawn to the tests laid down by this Court in dealing with the question as to when an adjudicating body or authority can be deemed to be a Tribunal under Art. 136.Like Art. 136, Art. 227 also refers to courts and Tribunals and what we have said about the character of the arbitrator appointed under S. 10A by reference to the requirements of Art. 136 may prima facie apply to the requirements of Art. 227. That, however, is a matter with which we are not directly concerned in the present appeals.24. Mr. Sule made a strong plea before us that if the arbitrator appointed under S. 10A was not treated as a Tribunal, it would lead to unreasonable consequences. He emphasised that the policy of the Legislature in enacting S. 10A was to encourage industrial employers and employees to avoid bitterness by referring their disputes voluntarily to the arbitrators of their own choice, but this laudable object would be defeated if it is realised by the parties that once reference is made under S. 10A the proceedings before the arbitrator are not subject to the scrutiny of this Court under Art. 136. It is extremely anomalous, says Mr. Sule, that parties aggrieved by an award made by such an arbitrator should be denied the protection of the relevant provisions of the Arbitration Act as well as the protection of the appellate jurisdiction of this Court under Art. 136. There is some force in this contention. It appears that in enacting Section 10A the Legislature probably did not realise that the position of an arbitrator contemplated therein would become anomalous in view of the fact that he was not assimilated to the status of an Industrial Tribunal and was taken out of the provisions of the Indian Arbitration Act. That, however, is a matter for the Legislature to consider.25. In the result, the preliminary objection raised by the respondents in the appeals before us must be upheld and the appeals dismissed on the ground that they are incompetent under Article 136. The appellants to pay the costs of the respondents in C. A.204 of 1962. No order as to costs in C. A. Nos. 182 and 183/1962.
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the construction of the provision.(2) prescribes the form of agreement and this form also supports the same construction. This form requires that the parties should state that they have agreed to refer the subsisting industrial dispute to the arbitration of the persons to be named in the form. Then it is required that the matters in dispute should be specified and several other details indicated. The form ends with the statement that the parties agree that the majority decision of the arbitrators shall be binding on them. This form is to be signed by the respective parties and to be attested by two witnesses. In other words, there is no doubt that the form prescribed by S. 10A(2) is exactly similar to the arbitration agreement, It refers to the dispute, it names the arbitrator and it binds the parties to abide by the majority decision of the arbitrators. Thus, it is clear that what S. 10A contemplates is carried out by prescribing an appropriate form under S. 10A(2).20. After the prescribed form is thus duly signed by the parties and attested, under subsection (3) a copy of it has to be forwarded to the appropriate Government and the conciliation officer and the appropriate Government has, within fourteen days from the date of the receipt of such copy, to publish the same in the official Gazette. The publication of the copy is, in a sense, a ministerial act and the appropriate Government has no discretion in the matter. Sub section (4) provides that the arbitrator shall investigate the dispute and submit his award to the appropriate Government ; and(5) excludes the application of the Arbitration Act to the arbitrations provided for by S. 10A. It is thus clear that when S. 10A (4) provides that the arbitrator shall investigate the dispute, it merely asks the arbitrator to exercise the powers which have been conferred on him by agreement of the parties under S. 10A (1). There is no doubt that the appropriate Government plays some part in these arbitrationpublishes the agreement; it requires the arbitration award to be submitted to it; then it publishes the award; and in that sense, some of the features which characterise the proceedings before the Industrial Tribunal before an award is pronounced and which characterise the subsequent steps to be taken in respect of such an award, are common to the proceedings before the arbitrator and the award that he may make. But the similarity of these features cannot disguise the fact that the initial and the inherent power to adjudicate upon the dispute is derived by the arbitrator from the parties agreement, whereas it is derived by the Industrial Tribunal from the statutory provisions themselves. In this connection, the provisions of S. 10 (2) may be taken into consideration. This clause deals with a case where the parties to an industrial dispute apply in the prescribed manner for a reference of their dispute to an appropriate authority, and it provides that the appropriate Government, if satisfied that the persons applying represent the majority of each party, shall make the reference accordingly. In other words, if the parties agree that a dispute pending between them should be referred for adjudication, they move the appropriate Government, and the appropriate Government is bound to make the reference accordingly. Unlike cases falling under S.10 (1) where in the absence of an agreement between the parties it is in the discretion of the appropriate Government to refer or not to refer any industrial dispute for adjudication, under S. 10 (2) if there is an agreement between the parties the appropriate Government has to refer the dispute for adjudication. But the significant fact is that the reference has to be made by the appropriate Government and not by the parties, whereas under S. 10 A the reference is by the parties, to the arbitrator named by them and it is after the parties have named the arbitrator and entered into a written agreement in that behalf that the appropriate Government steps in to assist the further proceedings before the namedthat case, the Bombay High Court has held that an arbitrator functioning under S. 10A is subject to the judicial superintendence of the High Court under Art. 227 of the Constitution and therefore, the High Court can entertain an application for a writ of certiorari in respect of the orders passed by the arbitrator. It was no doubt urged before the High Court that the arbitrator in question was not amenable to the jurisdiction of the High Court under Art. 227 because he was a private and not a statutory arbitrator; but the Court rejected the said contention and held that the proceedings before the arbitrator appointed under S. 10A had all the essential attributes of a statutory arbitration under S. 10 of the Act. From the judgment, it does not appear that the question about the construction of S. 10A was argued before the High Court or its attention was drawn to the obvious differences between the provisions of S. 10A and S. 10. Besides, the attention of the High was apparently not drawn to the tests laid down by this Court in dealing with the question as to when an adjudicating body or authority can be deemed to be a Tribunal under Art. 136.Like Art. 136, Art. 227 also refers to courts and Tribunals and what we have said about the character of the arbitrator appointed under S. 10A by reference to the requirements of Art. 136 may prima facie apply to the requirements of Art. 227. That, however, is a matter with which we are not directly concerned in the present appeals.In the result, the preliminary objection raised by the respondents in the appeals before us must be upheld and the appeals dismissed on the ground that they are incompetent under Article 136. The appellants to pay the costs of the respondents in C. A.204 of 1962. No order as to costs in C. A. Nos. 182 and 183/1962.
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Indian Performing Rights Society Ltd Vs. Sanjay Dalia | v. C.R. Borman & Anr. [2008 (38) PTC 76 (Del.)], Delhi High Court considered that the plaintiff carried on the business in commercial quantities in Delhi and have authorized agents also. The pleadings of plaintiff have to be taken into consideration at the time of rejection of the plaint under Order VII Rule 11 CPC. It was observed on averments made that the Delhi High Court possessed territorial jurisdiction to entertain the suit as plaintiff carried on business at Delhi.(e) In Sap Aktiengesellschaft & Anr. v. M/s. Warehouse Infotech [IA No. 11153/2009 in CS(OS) No.623/2009 decided on 19.11.2009], the question came up for consideration whether the plaintiff had a right a file a suit if he carries on business in the territorial jurisdiction of Delhi. The High Court held that in the plaint, jurisdiction was invoked on the ground that the defendants are voluntarily residing and carrying on business at Delhi. The plaintiff has branch office at Delhi and plaintiff’s authorised partner was offering the products from its office at Delhi. The judgment was delivered considering the provisions of Order VII Rule 10, C.P.C. taking the plaint averments to be correct.(f) In Wipro Ltd. & Anr. v. Oushadha Chandrika Ayurvedic India (P) Ltd. & Ors. [2008 (37) PTC 269 Mad.] , the High Court at Madras has observed that the provisions of section 20 CPC are not applicable as far as the High Court at Madras is concerned. Therefore, the scope of section 62 of the Copyright Act and section 134 of the Trade Marks Act, cannot be curtailed by reference to section 20 CPC or clause 12 of the Letters Patent.(g) In Hindustan Unilever Ltd. v. Ashique Chemicals & Ors. [2011 (47) PTC 209 (Bom.)] , the Bombay High Court has dealt with the territorial jurisdiction and held that section 134 of the Trade Marks Act conferred upon the plaintiff the benefit of bringing an action stipulated therein notwithstanding the provisions of the Code of Civil Procedure or any other law.(h) In the case of Ultra Tech Cement Ltd. & Anr. v. Shree Balaji Cement Industries & Ors. [2014 (58) PTC 1 (Bom.)] , the High Court held that it has the jurisdiction as the plaintiff carries on business within the jurisdiction of the court and plaintiff No.1 has registered office and plaintiff No.2 has corporate office within the jurisdiction of the said court, though the defendants did not carry on business nor do they have place of business within the jurisdiction of that court. The facts of the instant cases and the question posed is different which did not come up for consideration in any of the aforesaid decisions rendered by the High Courts and even otherwise any observations in any of aforesaid decisions contrary to our decision cannot hold the field. Interpretation of provisions cannot be so wide so as to open it to be misused, it has to be subject to object of the Act as explained above. 43. Coming to submission that vires of Section 62 has not been questioned. There is no doubt about it that the challenge to the vires of section 62 has not been made. However, the question is that of interpretation and not that of vires of the provisions which has been considered by us. There will be no violence to section 62 of Copyright Act and section 134 of Trade Marks Act by the interpretation adopted by us and the right of the plaintiff which has been conferred under the provisions, also remains intact. There is no question of giving disadvantage to the plaintiff vis-a-vis the defendant but both will stand to gain by proper interpretation.44. We also find the submission to be futile that the law as to the otherwise on the basis of aforesaid decisions, has prevailed for a long time as such there should not be any interference. Firstly, the judgments are of recent origin. Even otherwise, we have considered each and every decision threadbare which has been referred to us. It cannot be said that the precise question involved in the cases before us was involved in the aforesaid decisions or came up for consideration. In Dhodha House (supra) also, the question posed for consideration was different and the observations made therein are not supporting the cause raised on behalf of the appellants. We are not taking a view contrary to any of the said decisions of this Court. Thus, there is no need to refer the case to a larger Bench.45. It was also submitted that as the bulk of litigation of such a nature is filed at Delhi and lawyers available at Delhi are having expertise in the matter, as such it would be convenient to the parties to contest the suit at Delhi. Such aspects are irrelevant for deciding the territorial jurisdiction. It is not the convenience of the lawyers or their expertise which makes out the territorial jurisdiction. Thus, the submission is unhesitatingly rejected.46. It was also submitted that the suit may be ordered to be transferred to Delhi. We cannot order transfer of suit in these proceedings. In case parties so desire, they are free to file appropriate application but the suit is required to be presented in the court of competent jurisdiction only thereafter the question of transfer would be germane.47. In our opinion, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act have to be interpreted in the purposive manner. No doubt about it that a suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain. He need not travel to file a suit to a place where defendant is residing or cause of action wholly or in part arises. However, if the plaintiff is residing or carrying on business etc. at a place where cause of action, wholly or in part, has also arisen, he has to file a suit at that place, as discussed above. | 0[ds]12. Considering the very language of section 62 of the Copyright Act and section 134 of the Trade Marks Act, an additional forum has been provided by including a District Court within whose limits the plaintiff actually and voluntarily resides or carries on business or personally works for gain. The object of the provisions was to enable the plaintiff to institute a suit at a place where he or they resided or carried on business, not to enable them to drag defendant further away from such a place also as is being done in the instant cases. In our opinion, the expressionanything contained in the Code of Civildoes not oust the applicability of the provisions of section 20 of the Code of Civil Procedure and it is clear that additional remedy has been provided to the plaintiff so as to file a suit where he is residing or carrying on business etc., as the case may be. Section 20 of the Code of Civil Procedure enables a plaintiff to file a suit where the defendant resides or where cause of action arose.15. Accrual of cause of action is a sine qua non for a suit to be filed. Cause of action is a bundle of facts which is required to be proved to grant relief to the plaintiff. Cause of action not only refers to the infringement but also the material facts on which right is founded. Section 20 of the CPC recognises the territorial jurisdiction of the courts inter alia where the cause of action wholly or in part arises.arises.16. On a due and anxious consideration of the provisions contained in section 20 of the CPC, section 62 of the Copyright Act and section 134 of the Trade Marks Act, and the object with which the latter provisions have been enacted, it is clear that if a cause of action has arisen wholly or in part, where the plaintiff is residing or having its principal office/carries on business or personally works for gain, the suit can be filed at such place/s. Plaintiff(s) can also institute a suit at a place where he is residing, carrying on business or personally works for gain de hors the fact that the cause of action has not arisen at a place where he/they are residing or any one of them is residing, carries on business or personally works for gain. However, this right to institute suit at such a place has to be read subject to certain restrictions, such as in case plaintiff is residing or carrying on business at a particular place/having its head office and at such place cause of action has also arisen wholly or in part, plaintiff cannot ignore such a place under the guise that he is carrying on business at other far flung places also. The very intendment of the insertion of provision in the Copyright Act and Trade Marks Act is the convenience of the plaintiff. The rule of convenience of the parties has been given a statutory expression in section 20 of the CPC as well. The interpretation of provisions has to be such which prevents the mischief of causing inconvenience to parties.In our opinion, in a case where cause of action has arisen at a place where the plaintiff is residing or where there are more than one such persons, any of them actually or voluntarily resides or carries on business or personally works for gain would oust the jurisdiction of other place where the cause of action has not arisen though at such a place, by virtue of having subordinate office, the plaintiff instituting a suit or other proceedings might be carrying on business or personally works for gain.If the interpretation suggested by the appellant is accepted, several mischiefs may result, intention is that the plaintiff should not go to far flung places than that of residence or where he carries on business or works for gain in order to deprive defendant a remedy and harass him by dragging to distant place. It is settled proposition of law that the interpretation of the provisions has to be such which prevents mischief.Considering the first aspect of aforesaid principle, the common law which was existing before the provisions of law were passed was section 20 of the CPC. It did not provide for the plaintiff to institute a suit except in accordance with the provisions contained in section 20. The defect in existing law was inconvenience/deterrence caused to the authors suffering from financial constraints on account of having to vindicate their intellectual property rights at a place far away from their residence or the place of their business. The said mischief or defect in the existing law which did not provide for the plaintiff to sue at a place where he ordinarily resides or carries on business or personally works for gain, was sought to be removed. Hence, the remedy was provided incorporating the provisions of section 62 of the Copyright Act. The provisions enabled the plaintiff or any of them to file a suit at the aforesaid places. But if they were residing or carrying on business or personally worked for gain already at such place, where cause of action has arisen, wholly or in part, the said provisions have not provided additional remedy to them to file a suit at a different place. The said provisions never intended to operate in that field. The operation of the provisions was limited and their objective was clearly to enable the plaintiff to file a suit at the place where he is ordinarily residing or carrying on business etc., as enumerated above, not to go away from such places. The Legislature has never intended that the plaintiff should not institute the suit where he ordinarily resides or at its Head Office or registered office or where he otherwise carries on business or personally works for gain where the cause of action too has arisen and should drag the defendant to a subordinate office or other place of business which is at a far distant place under the guise of the fact that the plaintiff/corporation is carrying on business through branch or otherwise at such other place also. If such an interpretation is permitted, as rightly submitted on behalf of the respondents, the abuse of the provision will take place. Corporations and big conglomerates etc. might be having several subordinate offices throughout the country. Interpretation otherwise would permit them to institute infringement proceedings at a far flung place and at unconnected place as compared to a place where plaintiff is carrying on their business, and at such place, cause of action too has arisen. In the instant cases, the principal place of business is, admittedly, in Mumbai and the cause of action has also arisen in Mumbai. Thus, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act cannot be interpreted in a manner so as to confer jurisdiction on the Delhi court in the aforesaid circumstances to entertain such suits. The Delhi court would have no territorial jurisdiction to entertain it.Coming to submission that vires of Section 62 has not been questioned. There is no doubt about it that the challenge to the vires of section 62 has not been made. However, the question is that of interpretation and not that of vires of the provisions which has been considered by us. There will be no violence to section 62 of Copyright Act and section 134 of Trade Marks Act by the interpretation adopted by us and the right of the plaintiff which has been conferred under the provisions, also remains intact. There is no question of giving disadvantage to the plaintiffthe defendant but both will stand to gain by proper interpretation.44. We also find the submission to be futile that the law as to the otherwise on the basis of aforesaid decisions, has prevailed for a long time as such there should not be any interference. Firstly, the judgments are of recent origin. Even otherwise, we have considered each and every decision threadbare which has been referred to us. It cannot be said that the precise question involved in the cases before us was involved in the aforesaid decisions or came up for consideration. In Dhodha House (supra) also, the question posed for consideration was different and the observations made therein are not supporting the cause raised on behalf of the appellants. We are not taking a view contrary to any of the said decisions of this Court. Thus, there is no need to refer the case to a larger Bench.45. It was also submitted that as the bulk of litigation of such a nature is filed at Delhi and lawyers available at Delhi are having expertise in the matter, as such it would be convenient to the parties to contest the suit at Delhi. Such aspects are irrelevant for deciding the territorial jurisdiction. It is not the convenience of the lawyers or their expertise which makes out the territorial jurisdiction. Thus, the submission is unhesitatingly rejected.46. It was also submitted that the suit may be ordered to be transferred to Delhi. We cannot order transfer of suit in these proceedings. In case parties so desire, they are free to file appropriate application but the suit is required to be presented in the court of competent jurisdiction only thereafter the question of transfer would be germane.47. In our opinion, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act have to be interpreted in the purposive manner. No doubt about it that a suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain. He need not travel to file a suit to a place where defendant is residing or cause of action wholly or in part arises. However, if the plaintiff is residing or carrying on business etc. at a place where cause of action, wholly or in part, has also arisen, he has to file a suit at that place, as discussed above. | 0 | 14,696 | 1,806 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
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v. C.R. Borman & Anr. [2008 (38) PTC 76 (Del.)], Delhi High Court considered that the plaintiff carried on the business in commercial quantities in Delhi and have authorized agents also. The pleadings of plaintiff have to be taken into consideration at the time of rejection of the plaint under Order VII Rule 11 CPC. It was observed on averments made that the Delhi High Court possessed territorial jurisdiction to entertain the suit as plaintiff carried on business at Delhi.(e) In Sap Aktiengesellschaft & Anr. v. M/s. Warehouse Infotech [IA No. 11153/2009 in CS(OS) No.623/2009 decided on 19.11.2009], the question came up for consideration whether the plaintiff had a right a file a suit if he carries on business in the territorial jurisdiction of Delhi. The High Court held that in the plaint, jurisdiction was invoked on the ground that the defendants are voluntarily residing and carrying on business at Delhi. The plaintiff has branch office at Delhi and plaintiff’s authorised partner was offering the products from its office at Delhi. The judgment was delivered considering the provisions of Order VII Rule 10, C.P.C. taking the plaint averments to be correct.(f) In Wipro Ltd. & Anr. v. Oushadha Chandrika Ayurvedic India (P) Ltd. & Ors. [2008 (37) PTC 269 Mad.] , the High Court at Madras has observed that the provisions of section 20 CPC are not applicable as far as the High Court at Madras is concerned. Therefore, the scope of section 62 of the Copyright Act and section 134 of the Trade Marks Act, cannot be curtailed by reference to section 20 CPC or clause 12 of the Letters Patent.(g) In Hindustan Unilever Ltd. v. Ashique Chemicals & Ors. [2011 (47) PTC 209 (Bom.)] , the Bombay High Court has dealt with the territorial jurisdiction and held that section 134 of the Trade Marks Act conferred upon the plaintiff the benefit of bringing an action stipulated therein notwithstanding the provisions of the Code of Civil Procedure or any other law.(h) In the case of Ultra Tech Cement Ltd. & Anr. v. Shree Balaji Cement Industries & Ors. [2014 (58) PTC 1 (Bom.)] , the High Court held that it has the jurisdiction as the plaintiff carries on business within the jurisdiction of the court and plaintiff No.1 has registered office and plaintiff No.2 has corporate office within the jurisdiction of the said court, though the defendants did not carry on business nor do they have place of business within the jurisdiction of that court. The facts of the instant cases and the question posed is different which did not come up for consideration in any of the aforesaid decisions rendered by the High Courts and even otherwise any observations in any of aforesaid decisions contrary to our decision cannot hold the field. Interpretation of provisions cannot be so wide so as to open it to be misused, it has to be subject to object of the Act as explained above. 43. Coming to submission that vires of Section 62 has not been questioned. There is no doubt about it that the challenge to the vires of section 62 has not been made. However, the question is that of interpretation and not that of vires of the provisions which has been considered by us. There will be no violence to section 62 of Copyright Act and section 134 of Trade Marks Act by the interpretation adopted by us and the right of the plaintiff which has been conferred under the provisions, also remains intact. There is no question of giving disadvantage to the plaintiff vis-a-vis the defendant but both will stand to gain by proper interpretation.44. We also find the submission to be futile that the law as to the otherwise on the basis of aforesaid decisions, has prevailed for a long time as such there should not be any interference. Firstly, the judgments are of recent origin. Even otherwise, we have considered each and every decision threadbare which has been referred to us. It cannot be said that the precise question involved in the cases before us was involved in the aforesaid decisions or came up for consideration. In Dhodha House (supra) also, the question posed for consideration was different and the observations made therein are not supporting the cause raised on behalf of the appellants. We are not taking a view contrary to any of the said decisions of this Court. Thus, there is no need to refer the case to a larger Bench.45. It was also submitted that as the bulk of litigation of such a nature is filed at Delhi and lawyers available at Delhi are having expertise in the matter, as such it would be convenient to the parties to contest the suit at Delhi. Such aspects are irrelevant for deciding the territorial jurisdiction. It is not the convenience of the lawyers or their expertise which makes out the territorial jurisdiction. Thus, the submission is unhesitatingly rejected.46. It was also submitted that the suit may be ordered to be transferred to Delhi. We cannot order transfer of suit in these proceedings. In case parties so desire, they are free to file appropriate application but the suit is required to be presented in the court of competent jurisdiction only thereafter the question of transfer would be germane.47. In our opinion, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act have to be interpreted in the purposive manner. No doubt about it that a suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain. He need not travel to file a suit to a place where defendant is residing or cause of action wholly or in part arises. However, if the plaintiff is residing or carrying on business etc. at a place where cause of action, wholly or in part, has also arisen, he has to file a suit at that place, as discussed above.
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0
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prevents mischief.Considering the first aspect of aforesaid principle, the common law which was existing before the provisions of law were passed was section 20 of the CPC. It did not provide for the plaintiff to institute a suit except in accordance with the provisions contained in section 20. The defect in existing law was inconvenience/deterrence caused to the authors suffering from financial constraints on account of having to vindicate their intellectual property rights at a place far away from their residence or the place of their business. The said mischief or defect in the existing law which did not provide for the plaintiff to sue at a place where he ordinarily resides or carries on business or personally works for gain, was sought to be removed. Hence, the remedy was provided incorporating the provisions of section 62 of the Copyright Act. The provisions enabled the plaintiff or any of them to file a suit at the aforesaid places. But if they were residing or carrying on business or personally worked for gain already at such place, where cause of action has arisen, wholly or in part, the said provisions have not provided additional remedy to them to file a suit at a different place. The said provisions never intended to operate in that field. The operation of the provisions was limited and their objective was clearly to enable the plaintiff to file a suit at the place where he is ordinarily residing or carrying on business etc., as enumerated above, not to go away from such places. The Legislature has never intended that the plaintiff should not institute the suit where he ordinarily resides or at its Head Office or registered office or where he otherwise carries on business or personally works for gain where the cause of action too has arisen and should drag the defendant to a subordinate office or other place of business which is at a far distant place under the guise of the fact that the plaintiff/corporation is carrying on business through branch or otherwise at such other place also. If such an interpretation is permitted, as rightly submitted on behalf of the respondents, the abuse of the provision will take place. Corporations and big conglomerates etc. might be having several subordinate offices throughout the country. Interpretation otherwise would permit them to institute infringement proceedings at a far flung place and at unconnected place as compared to a place where plaintiff is carrying on their business, and at such place, cause of action too has arisen. In the instant cases, the principal place of business is, admittedly, in Mumbai and the cause of action has also arisen in Mumbai. Thus, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act cannot be interpreted in a manner so as to confer jurisdiction on the Delhi court in the aforesaid circumstances to entertain such suits. The Delhi court would have no territorial jurisdiction to entertain it.Coming to submission that vires of Section 62 has not been questioned. There is no doubt about it that the challenge to the vires of section 62 has not been made. However, the question is that of interpretation and not that of vires of the provisions which has been considered by us. There will be no violence to section 62 of Copyright Act and section 134 of Trade Marks Act by the interpretation adopted by us and the right of the plaintiff which has been conferred under the provisions, also remains intact. There is no question of giving disadvantage to the plaintiffthe defendant but both will stand to gain by proper interpretation.44. We also find the submission to be futile that the law as to the otherwise on the basis of aforesaid decisions, has prevailed for a long time as such there should not be any interference. Firstly, the judgments are of recent origin. Even otherwise, we have considered each and every decision threadbare which has been referred to us. It cannot be said that the precise question involved in the cases before us was involved in the aforesaid decisions or came up for consideration. In Dhodha House (supra) also, the question posed for consideration was different and the observations made therein are not supporting the cause raised on behalf of the appellants. We are not taking a view contrary to any of the said decisions of this Court. Thus, there is no need to refer the case to a larger Bench.45. It was also submitted that as the bulk of litigation of such a nature is filed at Delhi and lawyers available at Delhi are having expertise in the matter, as such it would be convenient to the parties to contest the suit at Delhi. Such aspects are irrelevant for deciding the territorial jurisdiction. It is not the convenience of the lawyers or their expertise which makes out the territorial jurisdiction. Thus, the submission is unhesitatingly rejected.46. It was also submitted that the suit may be ordered to be transferred to Delhi. We cannot order transfer of suit in these proceedings. In case parties so desire, they are free to file appropriate application but the suit is required to be presented in the court of competent jurisdiction only thereafter the question of transfer would be germane.47. In our opinion, the provisions of section 62 of the Copyright Act and section 134 of the Trade Marks Act have to be interpreted in the purposive manner. No doubt about it that a suit can be filed by the plaintiff at a place where he is residing or carrying on business or personally works for gain. He need not travel to file a suit to a place where defendant is residing or cause of action wholly or in part arises. However, if the plaintiff is residing or carrying on business etc. at a place where cause of action, wholly or in part, has also arisen, he has to file a suit at that place, as discussed above.
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STEEL AUTH.OF INDIA LTD Vs. NAND KISHORE TIWARI | and the plant modernized to reach a target production of 4.2 million tons per annum. This was at an overall cost of Rs.13684 crores and was completed in the year 2013. In the said additional affidavit dated 22nd January, 2018 it has been further stated that the SAIL is now engaged in the process of enhancing the annual capacity of the RSP to 7.5 million tons per annum for which a huge infrastructural investment will have to be made running into almost Rs. 2.6 million crores. It is further stated by the appellant in the said additional affidavit dated 22nd January, 2018 that keeping in mind that the optimum number of employees per million ton of production should be 3200, once the production capacity is raised to 7.5 million tons the RSP will have about 24000 employees. It is contended that the entire township of Rourkela is established and maintained by the RSP itself which is, therefore, required to provide additional accommodation to various Government Agencies like Police, Revenue Officers, Government employees, employees of Government School/Colleges, Banks, Public Sector Undertakings (PSUs), etc. In the said additional affidavit dated 22nd January, 2018, the appellant has further stated that as per the directive received from the Union Cabinet Secretariat long-term lease is presently prohibited. It is further stated that presently the available quarters are about 19916 of which about 18300 quarters are already occupied by the employees/ex-employees and various other employees of the State Government, PSUs, etc. It is further stated that about 250-300 quarters are in a dilapidated condition. The remaining/ vacant quarters would be required not only to house the in-coming employees but also various Agencies that would be working at the site in connection with the expansion/modernization plans.On the strength of the aforesaid statements and the official correspondences/decisions enclosed in this regard to the additional affidavit dated 22nd January, 2018 the appellant submits that the order of the High Court should be appropriately interfered with. 8. Shri Ratnakar Dash, learned Senior Counsel appearing for the respondents – writ petitioners has disputed the statements made by the appellant in the additional affidavit dated 22nd January, 2018 and has drawn the attention of the Court to the reply of the respondent to the said additional affidavit dated 22nd January, 2018 filed by the appellant. The learned counsel for the respondents–writ petitioners, apart from contesting the various statements made in the additional affidavit dated 22nd January, 2018 filed by the appellant, has submitted that the RSP is a loss making concern and admittedly is reducing its workforce. It is claimed that huge number of vacant quarters are available and even if the production capacity of the RSP is enhanced to 7.5 million tons there would still be surplus of accommodation/quarters. 9. The respondents-writ petitioners have brought on record a Circular dated 23rd August, 2017 by which applications have been invited for allotment of one room/1 BR(L.T) quarters on licence basis for a period of 33 (thirty three) months. Such applications have been invited from employees, ex-employees of the RSP who would be separating from the RSP/Company. The said fact, according to the respondents – writ petitioners, has belied the claim made by the appellant – Steel Authority of India Limited. 10. Insofar as the State of Odisha is concerned, Shri Shibashish Misra, learned counsel appearing for the State of Odisha has taken a stand that the appellant – Steel Authority of India Limited is free to take its decision in the matter subject to the conditions of lease under which the land has been allotted to the Steel Authority of India Limited. 11. We have considered the matter. 12. “Sail Scheme for Leasing of Houses to Employees, 2002” was valid for a period of three months. The operation of it had not been extended. Under the said Scheme of 2002, ex-employees, to which category the respondents–writ petitioners belong, were not vested with any right for consideration of their cases for allotment on long-term lease. In fact, the lease deed between the State of Orissa and Steel Authority of India Limited makes it very clear that the lands can be used only for the Steel plant and for the purposes ancillary thereto and that the Steel Authority of India Limited shall not use the land for any other purpose except with the previous sanction of the Government. 13. “Sail Scheme for Leasing of Houses to Employees, 2002” was introduced in the year 2002. Considerable time has elapsed in the meantime. The Scheme of 2002 was applicable only to regular/serving employees and not to ex-employees. In the long period of interval that has been occasioned by the pendency of the present litigation the very basis for introduction of the Scheme of 2002 has changed and the facts now stated in the additional affidavit dated 22nd January, 2018 of the appellant – Steel Authority of India Limited would indicate that today any long-term lease of quarters built/maintained by the RSP is not feasible. In fact, according to the appellant – Steel Authority of India Limited, there would be a shortage of accommodation/quarters in the immediate future and, perhaps, new constructions will have to be raised to meet the increasing demand for accommodation on account of increase of production levels of the RSP. 14. In a situation where no legal right can be understood to have been vested in the respondents – writ petitioners under the Scheme of 2002 and operation of the said Scheme of 2002 today is not considered feasible or necessary by the appellant on account of the reasons stated in the additional affidavit dated 22nd January, 2018, as noticed herein above, we do not see how the appellant can be compelled to grant any long-term lease of the official quarters in the RSP to the respondents – writ petitioners who are its ex-employees. Such subsequent facts and developments that have taken place during the interregnum would certainly be material in moulding the relief(s) and answering the issues arising before this Court. 15 | 1[ds]me for Leasing of Houses to Employees,was valid for a period of three months. The operation of it had not been extended. Under the said Scheme of 2002,to which category the respondents–writ petitioners belong, were not vested with any right for consideration of their cases for allotment onlease. In fact, the lease deed between the State of Orissa and Steel Authority of India Limited makes it very clear that the lands can be used only for the Steel plant and for the purposes ancillary thereto and that the Steel Authority of India Limited shall not use the land for any other purpose except with the previous sanction of thee for Leasing of Houses to Employees,was introduced in the year 2002. Considerable time has elapsed in the meantime. The Scheme of 2002 was applicable only to regular/serving employees and not toIn the long period of interval that has been occasioned by the pendency of the present litigation the very basis for introduction of the Scheme of 2002 has changed and the facts now stated in the additional affidavit dated 22nd January, 2018 of the appellant – Steel Authority of India Limited would indicate that today anylease of quarters built/maintained by the RSP is not feasible. In fact, according to the appellant – Steel Authority of India Limited, there would be a shortage of accommodation/quarters in the immediate future and, perhaps, new constructions will have to be raised to meet the increasing demand for accommodation on account of increase of production levels of the RSP.In a situation where no legal right can be understood to have been vested in the respondents – writ petitioners under the Scheme of 2002 and operation of the said Scheme of 2002 today is not considered feasible or necessary by the appellant on account of the reasons stated in the additional affidavit dated 22nd January, 2018, as noticed herein above, we do not see how the appellant can be compelled to grant anylease of the official quarters in the RSP to the respondents – writ petitioners who are itsSuch subsequent facts and developments that have taken place during the interregnum would certainly be material in moulding the relief(s) and answering the issues arising before this Court. | 1 | 1,873 | 399 | ### 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:
and the plant modernized to reach a target production of 4.2 million tons per annum. This was at an overall cost of Rs.13684 crores and was completed in the year 2013. In the said additional affidavit dated 22nd January, 2018 it has been further stated that the SAIL is now engaged in the process of enhancing the annual capacity of the RSP to 7.5 million tons per annum for which a huge infrastructural investment will have to be made running into almost Rs. 2.6 million crores. It is further stated by the appellant in the said additional affidavit dated 22nd January, 2018 that keeping in mind that the optimum number of employees per million ton of production should be 3200, once the production capacity is raised to 7.5 million tons the RSP will have about 24000 employees. It is contended that the entire township of Rourkela is established and maintained by the RSP itself which is, therefore, required to provide additional accommodation to various Government Agencies like Police, Revenue Officers, Government employees, employees of Government School/Colleges, Banks, Public Sector Undertakings (PSUs), etc. In the said additional affidavit dated 22nd January, 2018, the appellant has further stated that as per the directive received from the Union Cabinet Secretariat long-term lease is presently prohibited. It is further stated that presently the available quarters are about 19916 of which about 18300 quarters are already occupied by the employees/ex-employees and various other employees of the State Government, PSUs, etc. It is further stated that about 250-300 quarters are in a dilapidated condition. The remaining/ vacant quarters would be required not only to house the in-coming employees but also various Agencies that would be working at the site in connection with the expansion/modernization plans.On the strength of the aforesaid statements and the official correspondences/decisions enclosed in this regard to the additional affidavit dated 22nd January, 2018 the appellant submits that the order of the High Court should be appropriately interfered with. 8. Shri Ratnakar Dash, learned Senior Counsel appearing for the respondents – writ petitioners has disputed the statements made by the appellant in the additional affidavit dated 22nd January, 2018 and has drawn the attention of the Court to the reply of the respondent to the said additional affidavit dated 22nd January, 2018 filed by the appellant. The learned counsel for the respondents–writ petitioners, apart from contesting the various statements made in the additional affidavit dated 22nd January, 2018 filed by the appellant, has submitted that the RSP is a loss making concern and admittedly is reducing its workforce. It is claimed that huge number of vacant quarters are available and even if the production capacity of the RSP is enhanced to 7.5 million tons there would still be surplus of accommodation/quarters. 9. The respondents-writ petitioners have brought on record a Circular dated 23rd August, 2017 by which applications have been invited for allotment of one room/1 BR(L.T) quarters on licence basis for a period of 33 (thirty three) months. Such applications have been invited from employees, ex-employees of the RSP who would be separating from the RSP/Company. The said fact, according to the respondents – writ petitioners, has belied the claim made by the appellant – Steel Authority of India Limited. 10. Insofar as the State of Odisha is concerned, Shri Shibashish Misra, learned counsel appearing for the State of Odisha has taken a stand that the appellant – Steel Authority of India Limited is free to take its decision in the matter subject to the conditions of lease under which the land has been allotted to the Steel Authority of India Limited. 11. We have considered the matter. 12. “Sail Scheme for Leasing of Houses to Employees, 2002” was valid for a period of three months. The operation of it had not been extended. Under the said Scheme of 2002, ex-employees, to which category the respondents–writ petitioners belong, were not vested with any right for consideration of their cases for allotment on long-term lease. In fact, the lease deed between the State of Orissa and Steel Authority of India Limited makes it very clear that the lands can be used only for the Steel plant and for the purposes ancillary thereto and that the Steel Authority of India Limited shall not use the land for any other purpose except with the previous sanction of the Government. 13. “Sail Scheme for Leasing of Houses to Employees, 2002” was introduced in the year 2002. Considerable time has elapsed in the meantime. The Scheme of 2002 was applicable only to regular/serving employees and not to ex-employees. In the long period of interval that has been occasioned by the pendency of the present litigation the very basis for introduction of the Scheme of 2002 has changed and the facts now stated in the additional affidavit dated 22nd January, 2018 of the appellant – Steel Authority of India Limited would indicate that today any long-term lease of quarters built/maintained by the RSP is not feasible. In fact, according to the appellant – Steel Authority of India Limited, there would be a shortage of accommodation/quarters in the immediate future and, perhaps, new constructions will have to be raised to meet the increasing demand for accommodation on account of increase of production levels of the RSP. 14. In a situation where no legal right can be understood to have been vested in the respondents – writ petitioners under the Scheme of 2002 and operation of the said Scheme of 2002 today is not considered feasible or necessary by the appellant on account of the reasons stated in the additional affidavit dated 22nd January, 2018, as noticed herein above, we do not see how the appellant can be compelled to grant any long-term lease of the official quarters in the RSP to the respondents – writ petitioners who are its ex-employees. Such subsequent facts and developments that have taken place during the interregnum would certainly be material in moulding the relief(s) and answering the issues arising before this Court. 15
### Response:
1
### Explanation:
me for Leasing of Houses to Employees,was valid for a period of three months. The operation of it had not been extended. Under the said Scheme of 2002,to which category the respondents–writ petitioners belong, were not vested with any right for consideration of their cases for allotment onlease. In fact, the lease deed between the State of Orissa and Steel Authority of India Limited makes it very clear that the lands can be used only for the Steel plant and for the purposes ancillary thereto and that the Steel Authority of India Limited shall not use the land for any other purpose except with the previous sanction of thee for Leasing of Houses to Employees,was introduced in the year 2002. Considerable time has elapsed in the meantime. The Scheme of 2002 was applicable only to regular/serving employees and not toIn the long period of interval that has been occasioned by the pendency of the present litigation the very basis for introduction of the Scheme of 2002 has changed and the facts now stated in the additional affidavit dated 22nd January, 2018 of the appellant – Steel Authority of India Limited would indicate that today anylease of quarters built/maintained by the RSP is not feasible. In fact, according to the appellant – Steel Authority of India Limited, there would be a shortage of accommodation/quarters in the immediate future and, perhaps, new constructions will have to be raised to meet the increasing demand for accommodation on account of increase of production levels of the RSP.In a situation where no legal right can be understood to have been vested in the respondents – writ petitioners under the Scheme of 2002 and operation of the said Scheme of 2002 today is not considered feasible or necessary by the appellant on account of the reasons stated in the additional affidavit dated 22nd January, 2018, as noticed herein above, we do not see how the appellant can be compelled to grant anylease of the official quarters in the RSP to the respondents – writ petitioners who are itsSuch subsequent facts and developments that have taken place during the interregnum would certainly be material in moulding the relief(s) and answering the issues arising before this Court.
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UMA PANDEY Vs. MUNNA PANDEY | 2. This appeal is filed by the plaintiffs against the final judgment and order dated 16.07.2014 passed by the High Court of Judicature at Patna in Second Appeal No.255 of 2008 whereby the High Court dismissed the second appeal filed by the appellants herein in limine and affirmed the judgment/decree dated 14.07.2008 passed by the 1 st Additional District & Sessions Judge, Gopalganj in Title Appeal No. 77/2005/06 of 2007 which arose out of the judgment dated 12.07.2005 and decree dated 23.07.2005 passed by the Sub-Judge-V, Gopalganj in Title Suit No. 21 of 1993. 3. The issue involved in the appeal lies in a narrow compass so also the facts involved in the appeal are short. They are stated hereinbelow to appreciate the issue. 4. The appellants are the plaintiffs whereas the respondents are the defendants in a civil suit out of which this appeal arises. 5. The appellants and the respondents are members of one family and are related to one another. 6. The appellants filed a civil suit being Title Suit No.21/1993 against the respondents in the Court of Sub-Judge V, Gopalganj claiming partition and separate possession of agriculture lands as detailed in the schedule appended to the plaint. 7. According to the appellants, the lands were ancestral in the hands of the parties to the suit and being members of family, they were entitled to claim their share in the suit lands qua the respondents (defendants). It was, inter alia, on this assertion the appellants filed a suit for partition and separate possession of the suit land of their separate shares against the respondents (defendants). 8. The respondents contested the suit and denied the appellants claim in the written statement on several grounds on facts and in law. Parties went to trial. The issues were framed. Documents were filed and oral evidence was adduced. 9. The Trial Court decreed the appellants suit. The respondents (defendants) felt aggrieved and filed first appeal. The First Appellate Court allowed the defendants appeal and dismissed the appellants suit. The appellants felt aggrieved and filed second appeal before the High Court. By impugned Judgment, the High Court dismissed the appeal in limine. The High Court held that the second appeal filed by the appellants (plaintiffs) did not involve any substantial question(s) of law and hence it was liable to be dismissed in limine. It is against this judgment, the plaintiffs felt aggrieved and filed the present appeal by way of special leave in this Court. 10. Heard Mr. Manan Kumar Mishra, learned senior counsel for the appellants. Despite notice, no one appeared on behalf of respondents. 11. Having heard the learned counsel for the appellants and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned judgment of the High Court and remand the case to the High Court for deciding the second appeal filed by the plaintiffs (appellants herein) afresh on merits on the substantial questions of law framed by this Court hereinbelow. 12. In our considered opinion, the High Court erred in dismissing the second appeal in limine on the ground that it did not involve any substantial question(s) of law. 13. In our view, the appeal did involve substantial question(s) of law within the meaning of Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) and, therefore, it should have been admitted for final hearing on the substantial question(s) of law arising in the case. 14. It is not in dispute that the defendants (respondents) filed one document(EX-A)-(Annexure-P-1 of SLP). This document was relied on and appreciated by the two Courts below for deciding the rights of the parties. The Trial Court decreed the suit and the First Appellate Court reversed it on appreciating the evidence including . 15. It is a settled principle of law that interpretation of any document including its contents or its admissibility in evidence or its effect on the rights of the parties to the Lis constitutes a substantial question(s) of law within the meaning of Section 100 of the Code. 16. Whenever such question arises in the second appeal at the instance of the appellant, it deserves admission on framing appropriate substantial question(s) on such questions to enable the High Court to decide the appeal on merits bi-party. 17. In this case, it was all the more reason for the High Court to have admitted the appellants second appeal because the Trial Court and the First Appellate Court had taken into consideration the document - Ex-A for deciding the Lis involved in the case. 18. In the light of the foregoing discussion, we cannot concur with the reasoning and the conclusion arrived at by the High Court as, in our view, it wrongly dismissed appellants second appeal in limine. 19. In other words, what the High Court ought to have done at the time of hearing the second appeal on the question of admission by framing substantial question(s) of law arising in the case, the said exercise now we have to do it while disposing of this appeal. 20. In our view, the following substantial questions of law arise in the second appeal within the meaning of Section 100 of the Code for its decision: 1. Whether findings recorded by the first Appellate court on Ex-A for allowing the defendants first appeal and, in consequence, reversing the judgment/decree of the trial court is legally and factually sustainable? 2. What is the true nature of Ex-A? Can it be termed aspartition deed or a document recognizing a factum of partition already effected between the parties in relation to the suit land? 3. Whether Ex-A binds the plaintiffs and, if so, how and to what extent? 4. Whether Ex-A requires registration and, if so, its effect? 5. Since Ex-A was exhibited in evidence without any objection, whether any objection about its admissibility or legality can now be raised by the appellants in second appeal and, if so, its effect? 21. | 1[ds]Having heard the learned counsel for the appellants and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned judgment of the High Court and remand the case to the High Court for deciding the second appeal filed by the plaintiffs (appellants herein) afresh on merits on the substantial questions of law framed by this Court hereinbelowIn our considered opinion, the High Court erred in dismissing the second appeal in limine on the ground that it did not involve any substantial question(s) of lawIn our view, the appeal did involve substantial question(s) of law within the meaning of Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) and, therefore, it should have been admitted for final hearing on the substantial question(s) of law arising in the caseIt is a settled principle of law that interpretation of any document including its contents or its admissibility in evidence or its effect on the rights of the parties to the Lis constitutes a substantial question(s) of law within the meaning of Section 100 of the CodeWhenever such question arises in the second appeal at the instance of the appellant, it deserves admission on framing appropriate substantial question(s) on such questions to enable the High Court to decide the appeal on merits bi-partyIn this case, it was all the more reason for the High Court to have admitted the appellants second appeal because the Trial Court and the First Appellate Court had taken into consideration the document - Ex-A for deciding the Lis involved in the caseIn the light of the foregoing discussion, we cannot concur with the reasoning and the conclusion arrived at by the High Court as, in our view, it wrongly dismissed appellants second appeal in limineIn our view, the following substantial questions of law arise in the second appeal within the meaning of Section 100 of the Code for its decision:1. Whether findings recorded by the first Appellate court on Ex-A for allowing the defendants first appeal and, in consequence, reversing the judgment/decree of the trial court is legally and factually sustainable?2. What is the true nature of Ex-A? Can it be termed aspartition deed or a document recognizing a factum of partition already effected between the parties in relation to the suit land?3. Whether Ex-A binds thes and, if so, how and to what extent?4. Whether Ex-A requires registration and, if so, its effect?5. Since Ex-A was exhibited in evidence without any objection, whether any objection about its admissibility or legality can now be raised by the appellants in second appeal and, if so, its effect? | 1 | 1,154 | 503 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
2. This appeal is filed by the plaintiffs against the final judgment and order dated 16.07.2014 passed by the High Court of Judicature at Patna in Second Appeal No.255 of 2008 whereby the High Court dismissed the second appeal filed by the appellants herein in limine and affirmed the judgment/decree dated 14.07.2008 passed by the 1 st Additional District & Sessions Judge, Gopalganj in Title Appeal No. 77/2005/06 of 2007 which arose out of the judgment dated 12.07.2005 and decree dated 23.07.2005 passed by the Sub-Judge-V, Gopalganj in Title Suit No. 21 of 1993. 3. The issue involved in the appeal lies in a narrow compass so also the facts involved in the appeal are short. They are stated hereinbelow to appreciate the issue. 4. The appellants are the plaintiffs whereas the respondents are the defendants in a civil suit out of which this appeal arises. 5. The appellants and the respondents are members of one family and are related to one another. 6. The appellants filed a civil suit being Title Suit No.21/1993 against the respondents in the Court of Sub-Judge V, Gopalganj claiming partition and separate possession of agriculture lands as detailed in the schedule appended to the plaint. 7. According to the appellants, the lands were ancestral in the hands of the parties to the suit and being members of family, they were entitled to claim their share in the suit lands qua the respondents (defendants). It was, inter alia, on this assertion the appellants filed a suit for partition and separate possession of the suit land of their separate shares against the respondents (defendants). 8. The respondents contested the suit and denied the appellants claim in the written statement on several grounds on facts and in law. Parties went to trial. The issues were framed. Documents were filed and oral evidence was adduced. 9. The Trial Court decreed the appellants suit. The respondents (defendants) felt aggrieved and filed first appeal. The First Appellate Court allowed the defendants appeal and dismissed the appellants suit. The appellants felt aggrieved and filed second appeal before the High Court. By impugned Judgment, the High Court dismissed the appeal in limine. The High Court held that the second appeal filed by the appellants (plaintiffs) did not involve any substantial question(s) of law and hence it was liable to be dismissed in limine. It is against this judgment, the plaintiffs felt aggrieved and filed the present appeal by way of special leave in this Court. 10. Heard Mr. Manan Kumar Mishra, learned senior counsel for the appellants. Despite notice, no one appeared on behalf of respondents. 11. Having heard the learned counsel for the appellants and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned judgment of the High Court and remand the case to the High Court for deciding the second appeal filed by the plaintiffs (appellants herein) afresh on merits on the substantial questions of law framed by this Court hereinbelow. 12. In our considered opinion, the High Court erred in dismissing the second appeal in limine on the ground that it did not involve any substantial question(s) of law. 13. In our view, the appeal did involve substantial question(s) of law within the meaning of Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) and, therefore, it should have been admitted for final hearing on the substantial question(s) of law arising in the case. 14. It is not in dispute that the defendants (respondents) filed one document(EX-A)-(Annexure-P-1 of SLP). This document was relied on and appreciated by the two Courts below for deciding the rights of the parties. The Trial Court decreed the suit and the First Appellate Court reversed it on appreciating the evidence including . 15. It is a settled principle of law that interpretation of any document including its contents or its admissibility in evidence or its effect on the rights of the parties to the Lis constitutes a substantial question(s) of law within the meaning of Section 100 of the Code. 16. Whenever such question arises in the second appeal at the instance of the appellant, it deserves admission on framing appropriate substantial question(s) on such questions to enable the High Court to decide the appeal on merits bi-party. 17. In this case, it was all the more reason for the High Court to have admitted the appellants second appeal because the Trial Court and the First Appellate Court had taken into consideration the document - Ex-A for deciding the Lis involved in the case. 18. In the light of the foregoing discussion, we cannot concur with the reasoning and the conclusion arrived at by the High Court as, in our view, it wrongly dismissed appellants second appeal in limine. 19. In other words, what the High Court ought to have done at the time of hearing the second appeal on the question of admission by framing substantial question(s) of law arising in the case, the said exercise now we have to do it while disposing of this appeal. 20. In our view, the following substantial questions of law arise in the second appeal within the meaning of Section 100 of the Code for its decision: 1. Whether findings recorded by the first Appellate court on Ex-A for allowing the defendants first appeal and, in consequence, reversing the judgment/decree of the trial court is legally and factually sustainable? 2. What is the true nature of Ex-A? Can it be termed aspartition deed or a document recognizing a factum of partition already effected between the parties in relation to the suit land? 3. Whether Ex-A binds the plaintiffs and, if so, how and to what extent? 4. Whether Ex-A requires registration and, if so, its effect? 5. Since Ex-A was exhibited in evidence without any objection, whether any objection about its admissibility or legality can now be raised by the appellants in second appeal and, if so, its effect? 21.
### Response:
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### Explanation:
Having heard the learned counsel for the appellants and on perusal of the record of the case, we are constrained to allow the appeal, set aside the impugned judgment of the High Court and remand the case to the High Court for deciding the second appeal filed by the plaintiffs (appellants herein) afresh on merits on the substantial questions of law framed by this Court hereinbelowIn our considered opinion, the High Court erred in dismissing the second appeal in limine on the ground that it did not involve any substantial question(s) of lawIn our view, the appeal did involve substantial question(s) of law within the meaning of Section 100 of the Code of Civil Procedure, 1908 (hereinafter referred to as the Code) and, therefore, it should have been admitted for final hearing on the substantial question(s) of law arising in the caseIt is a settled principle of law that interpretation of any document including its contents or its admissibility in evidence or its effect on the rights of the parties to the Lis constitutes a substantial question(s) of law within the meaning of Section 100 of the CodeWhenever such question arises in the second appeal at the instance of the appellant, it deserves admission on framing appropriate substantial question(s) on such questions to enable the High Court to decide the appeal on merits bi-partyIn this case, it was all the more reason for the High Court to have admitted the appellants second appeal because the Trial Court and the First Appellate Court had taken into consideration the document - Ex-A for deciding the Lis involved in the caseIn the light of the foregoing discussion, we cannot concur with the reasoning and the conclusion arrived at by the High Court as, in our view, it wrongly dismissed appellants second appeal in limineIn our view, the following substantial questions of law arise in the second appeal within the meaning of Section 100 of the Code for its decision:1. Whether findings recorded by the first Appellate court on Ex-A for allowing the defendants first appeal and, in consequence, reversing the judgment/decree of the trial court is legally and factually sustainable?2. What is the true nature of Ex-A? Can it be termed aspartition deed or a document recognizing a factum of partition already effected between the parties in relation to the suit land?3. Whether Ex-A binds thes and, if so, how and to what extent?4. Whether Ex-A requires registration and, if so, its effect?5. Since Ex-A was exhibited in evidence without any objection, whether any objection about its admissibility or legality can now be raised by the appellants in second appeal and, if so, its effect?
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M/s. Tata Industries Ltd. & Another Vs. M/s. Grasim Industries Ltd | M/s. Apex Investments (Mauritius) Holding Private Limited was originally a member of the AT&T Wireless Group and held 32.9% shares in IDEA. It was then known as AT&T Cellular Pvt. Ltd. It was then argued that it was required under Article 4.01 (a) of the Shareholders Agreement to execute a Deed of Adherence as provided in "Annex C" to the Shareholders Agreement in order to (i) designate AT&T Inc. as its representative to exercise all rights and perform all obligations under the Shareholders Agreement; (ii) agree to be bound by all the provisions of the Shareholders Agreement; (iii) agree not to revoke the designation of the representative without prior written consent of the AV Birla Group and the Tata Group. It was also required that the counter-part of the executed Deed of Adherence should have been delivered to Grasim Industries Ltd. and TIL. It was then pointed out that after TIL acquired AT&T Cellular Pvt. Ltd. itself which held the remaining 16.45% shares in IDEA, M/s. Apex Investments (Mauritius) Holding Private Limited became a wholly owned subsidiary of TIL. It was then pointed out that on 28.09.2005, AT&T Cellular Pvt. Ltd., New Cingular Wireless Service Inc. (successor-in-interest to AT&T Inc.) entered into a Sale and Purchase Agreement with Indian Rayon and Industries Ltd. (now called ABNL), whereby the Shareholders Agreement was specifically terminated as between the Birla Group and the AT&T Wireless Group and all pre-existing rights/liabilities, if any, were specifically extinguished and waived. So also on the same date, the AT&T Wireless Group (of which AT&T Cellular Pvt. Ltd. was a part), executed a similar Sale and Purchase Agreement with the Tata Group, whereby the Shareholders Agreement was terminated between the Tata Group and the AT&T Wireless Group, and thus the Apex Investments (Mauritius) Holding Private Limited (which is a fall out from the AT&T Cellular Pvt. Ltd.) had terminated the Shareholders Agreement and extinguished and waived all accrued rights and obligations against the Birla Group and, therefore, Apex Investments (Mauritius) Holding Private Limited ceases to be a party to the Shareholders Agreement and to any arbitration clause contained therein. Apex Investments (Mauritius) Holding Private Limited, therefore, could no longer have any claim for arbitration or assert any rights or liabilities under the Shareholders Agreement. It was further pointed out that on 15.12.2000, when the Shareholders Agreement was executed, there were only three parties, viz., (i) AT&T Inc., which was acting on behalf of itself and AT&T Wireless Group; (ii) Grasim, acting on behalf of itself and the Birla Group (iii) TIL, acting on behalf of itself and the Tata Group. The argument, therefore, is that since Apex Investments (Mauritius) Holding Private Limited was not a party then, there could be no privity of contract between Apex Investments (Mauritius) Holding Private Limited and the non-applicant Birla Group. It was pointed out that since the modality drafted by clause 4.02 of Shareholders Agreement was not followed, Apex Investments (Mauritius) Holding Private Limited could not join the Shareholders Agreement and as such, Apex Investments (Mauritius) Holding Private Limited not being a party to the Shareholders Agreement, it cannot demand an arbitration through the arbitration clause. This argument is obviously incorrect for the following reasons:(i) It must be seen that after the offer was received from Global Communications, both TIL on its behalf and on behalf of the Apex Investments (Mauritius) Holding Private Limited, offered to sell their entire shareholding in IDEA in terms of the right of first refusal, which offer has been accepted by the non-applicant.(ii) Apex Investments (Mauritius) Holding Private Limited is now a part and parcel of the Tata Group and is its subsidiary. Further, its interests are bound to be affected.(iii) In raising this issue, the non-applicant is making a complete volte face, inasmuch as, when the application had been filed before the Bombay High Court, an objection was taken by the non-applicant that Apex Investments (Mauritius) Holding Private Limited being a foreign company and claiming an arbitration along with Tata Group, the Bombay High Court had no jurisdiction to entertain the application under Section 11 (6). It was in pursuance of that objection only that the Bombay High Court did not proceed further to decide the application under Section 11 (6). The learned counsel argues that this objection regarding the Apex Investments (Mauritius) Holding Private Limited being foreign party, arose on the face of it, but the merits of the case did not fall for consideration in Bombay High Court and as such the issue of Apex Investments (Mauritius) Holding Private Ltd. not being a party to shareholder agreement can still be raised. The contention is not correct. The non-applicant having raised an objection on the ground that the applicant Apex Investments (Mauritius) Holding Private Limited was a foreign company, and, therefore, could not have filed an application before Bombay High Court, cannot now turn around and say that Apex Investments (Mauritius) Holding Private Limited was not a party to the Arbitration Agreement. That will not be permissible. The learned counsel points out that this objection was raised without prejudice, would also be of no consequence, as having succeeded in stalling the decision of the application under Section 11(6), it cannot now raise the argument before this Court that Apex Investments (Mauritius) Holding Private Limited was never a party. This argument should have been addressed to the Bombay High Court, at least in the alternative form. If in the affidavit before the Bombay High Court filed on their behalf of the non-applicant had raised the issue and still chose not to go into the issue whether Apex Investments (Mauritius) Holding Private Limited was or was not a party to the Shareholders Agreement, that will not be permitted to be raised before this Court. In fact, in restricting to the jurisdictional issue and in not perusing the issue of Apex Investments (Mauritius) Holding Private Limited not being a party to the Shareholders Agreement before Bombay High Court, the non-applicant abandoned that issue. The argument is, therefore, rejected. | 1[ds]was pointed out that since the modality drafted by clause 4.02 of Shareholders Agreement was not followed, Apex Investments (Mauritius) Holding Private Limited could not join the Shareholders Agreement and as such, Apex Investments (Mauritius) Holding Private Limited not being a party to the Shareholders Agreement, it cannot demand an arbitration through the arbitration clause. This argument is obviously incorrect for the following reasons:(i) It must be seen that after the offer was received from Global Communications, both TIL on its behalf and on behalf of the Apex Investments (Mauritius) Holding Private Limited, offered to sell their entire shareholding in IDEA in terms of the right of first refusal, which offer has been accepted by the non-applicant.(ii) Apex Investments (Mauritius) Holding Private Limited is now a part and parcel of the Tata Group and is its subsidiary. Further, its interests are bound to be affected.(iii) In raising this issue, the non-applicant is making a complete volte face, inasmuch as, when the application had been filed before the Bombay High Court, an objection was taken by the non-applicant that Apex Investments (Mauritius) Holding Private Limited being a foreign company and claiming an arbitration along with Tata Group, the Bombay High Court had no jurisdiction to entertain the application under Section 11 (6). It was in pursuance of that objection only that the Bombay High Court did not proceed further to decide the application under Section 11 (6). The learned counsel argues that this objection regarding the Apex Investments (Mauritius) Holding Private Limited being foreign party, arose on the face of it, but the merits of the case did not fall for consideration in Bombay High Court and as such the issue of Apex Investments (Mauritius) Holding Private Ltd. not being a party to shareholder agreement can still be raised. The contention is not correct. The non-applicant having raised an objection on the ground that the applicant Apex Investments (Mauritius) Holding Private Limited was a foreign company, and, therefore, could not have filed an application before Bombay High Court, cannot now turn around and say that Apex Investments (Mauritius) Holding Private Limited was not a party to the Arbitration Agreement. That will not be permissible. The learned counsel points out that this objection was raised without prejudice, would also be of no consequence, as having succeeded in stalling the decision of the application under Section 11(6), it cannot now raise the argument before this Court that Apex Investments (Mauritius) Holding Private Limited was never a party. This argument should have been addressed to the Bombay High Court, at least in the alternative form. If in the affidavit before the Bombay High Court filed on their behalf of the non-applicant had raised the issue and still chose not to go into the issue whether Apex Investments (Mauritius) Holding Private Limited was or was not a party to the Shareholders Agreement, that will not be permitted to be raised before this Court. In fact, in restricting to the jurisdictional issue and in not perusing the issue of Apex Investments (Mauritius) Holding Private Limited not being a party to the Shareholders Agreement before Bombay High Court, the non-applicant abandoned that issue. The argument is, therefore, rejected. | 1 | 13,595 | 621 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
M/s. Apex Investments (Mauritius) Holding Private Limited was originally a member of the AT&T Wireless Group and held 32.9% shares in IDEA. It was then known as AT&T Cellular Pvt. Ltd. It was then argued that it was required under Article 4.01 (a) of the Shareholders Agreement to execute a Deed of Adherence as provided in "Annex C" to the Shareholders Agreement in order to (i) designate AT&T Inc. as its representative to exercise all rights and perform all obligations under the Shareholders Agreement; (ii) agree to be bound by all the provisions of the Shareholders Agreement; (iii) agree not to revoke the designation of the representative without prior written consent of the AV Birla Group and the Tata Group. It was also required that the counter-part of the executed Deed of Adherence should have been delivered to Grasim Industries Ltd. and TIL. It was then pointed out that after TIL acquired AT&T Cellular Pvt. Ltd. itself which held the remaining 16.45% shares in IDEA, M/s. Apex Investments (Mauritius) Holding Private Limited became a wholly owned subsidiary of TIL. It was then pointed out that on 28.09.2005, AT&T Cellular Pvt. Ltd., New Cingular Wireless Service Inc. (successor-in-interest to AT&T Inc.) entered into a Sale and Purchase Agreement with Indian Rayon and Industries Ltd. (now called ABNL), whereby the Shareholders Agreement was specifically terminated as between the Birla Group and the AT&T Wireless Group and all pre-existing rights/liabilities, if any, were specifically extinguished and waived. So also on the same date, the AT&T Wireless Group (of which AT&T Cellular Pvt. Ltd. was a part), executed a similar Sale and Purchase Agreement with the Tata Group, whereby the Shareholders Agreement was terminated between the Tata Group and the AT&T Wireless Group, and thus the Apex Investments (Mauritius) Holding Private Limited (which is a fall out from the AT&T Cellular Pvt. Ltd.) had terminated the Shareholders Agreement and extinguished and waived all accrued rights and obligations against the Birla Group and, therefore, Apex Investments (Mauritius) Holding Private Limited ceases to be a party to the Shareholders Agreement and to any arbitration clause contained therein. Apex Investments (Mauritius) Holding Private Limited, therefore, could no longer have any claim for arbitration or assert any rights or liabilities under the Shareholders Agreement. It was further pointed out that on 15.12.2000, when the Shareholders Agreement was executed, there were only three parties, viz., (i) AT&T Inc., which was acting on behalf of itself and AT&T Wireless Group; (ii) Grasim, acting on behalf of itself and the Birla Group (iii) TIL, acting on behalf of itself and the Tata Group. The argument, therefore, is that since Apex Investments (Mauritius) Holding Private Limited was not a party then, there could be no privity of contract between Apex Investments (Mauritius) Holding Private Limited and the non-applicant Birla Group. It was pointed out that since the modality drafted by clause 4.02 of Shareholders Agreement was not followed, Apex Investments (Mauritius) Holding Private Limited could not join the Shareholders Agreement and as such, Apex Investments (Mauritius) Holding Private Limited not being a party to the Shareholders Agreement, it cannot demand an arbitration through the arbitration clause. This argument is obviously incorrect for the following reasons:(i) It must be seen that after the offer was received from Global Communications, both TIL on its behalf and on behalf of the Apex Investments (Mauritius) Holding Private Limited, offered to sell their entire shareholding in IDEA in terms of the right of first refusal, which offer has been accepted by the non-applicant.(ii) Apex Investments (Mauritius) Holding Private Limited is now a part and parcel of the Tata Group and is its subsidiary. Further, its interests are bound to be affected.(iii) In raising this issue, the non-applicant is making a complete volte face, inasmuch as, when the application had been filed before the Bombay High Court, an objection was taken by the non-applicant that Apex Investments (Mauritius) Holding Private Limited being a foreign company and claiming an arbitration along with Tata Group, the Bombay High Court had no jurisdiction to entertain the application under Section 11 (6). It was in pursuance of that objection only that the Bombay High Court did not proceed further to decide the application under Section 11 (6). The learned counsel argues that this objection regarding the Apex Investments (Mauritius) Holding Private Limited being foreign party, arose on the face of it, but the merits of the case did not fall for consideration in Bombay High Court and as such the issue of Apex Investments (Mauritius) Holding Private Ltd. not being a party to shareholder agreement can still be raised. The contention is not correct. The non-applicant having raised an objection on the ground that the applicant Apex Investments (Mauritius) Holding Private Limited was a foreign company, and, therefore, could not have filed an application before Bombay High Court, cannot now turn around and say that Apex Investments (Mauritius) Holding Private Limited was not a party to the Arbitration Agreement. That will not be permissible. The learned counsel points out that this objection was raised without prejudice, would also be of no consequence, as having succeeded in stalling the decision of the application under Section 11(6), it cannot now raise the argument before this Court that Apex Investments (Mauritius) Holding Private Limited was never a party. This argument should have been addressed to the Bombay High Court, at least in the alternative form. If in the affidavit before the Bombay High Court filed on their behalf of the non-applicant had raised the issue and still chose not to go into the issue whether Apex Investments (Mauritius) Holding Private Limited was or was not a party to the Shareholders Agreement, that will not be permitted to be raised before this Court. In fact, in restricting to the jurisdictional issue and in not perusing the issue of Apex Investments (Mauritius) Holding Private Limited not being a party to the Shareholders Agreement before Bombay High Court, the non-applicant abandoned that issue. The argument is, therefore, rejected.
### Response:
1
### Explanation:
was pointed out that since the modality drafted by clause 4.02 of Shareholders Agreement was not followed, Apex Investments (Mauritius) Holding Private Limited could not join the Shareholders Agreement and as such, Apex Investments (Mauritius) Holding Private Limited not being a party to the Shareholders Agreement, it cannot demand an arbitration through the arbitration clause. This argument is obviously incorrect for the following reasons:(i) It must be seen that after the offer was received from Global Communications, both TIL on its behalf and on behalf of the Apex Investments (Mauritius) Holding Private Limited, offered to sell their entire shareholding in IDEA in terms of the right of first refusal, which offer has been accepted by the non-applicant.(ii) Apex Investments (Mauritius) Holding Private Limited is now a part and parcel of the Tata Group and is its subsidiary. Further, its interests are bound to be affected.(iii) In raising this issue, the non-applicant is making a complete volte face, inasmuch as, when the application had been filed before the Bombay High Court, an objection was taken by the non-applicant that Apex Investments (Mauritius) Holding Private Limited being a foreign company and claiming an arbitration along with Tata Group, the Bombay High Court had no jurisdiction to entertain the application under Section 11 (6). It was in pursuance of that objection only that the Bombay High Court did not proceed further to decide the application under Section 11 (6). The learned counsel argues that this objection regarding the Apex Investments (Mauritius) Holding Private Limited being foreign party, arose on the face of it, but the merits of the case did not fall for consideration in Bombay High Court and as such the issue of Apex Investments (Mauritius) Holding Private Ltd. not being a party to shareholder agreement can still be raised. The contention is not correct. The non-applicant having raised an objection on the ground that the applicant Apex Investments (Mauritius) Holding Private Limited was a foreign company, and, therefore, could not have filed an application before Bombay High Court, cannot now turn around and say that Apex Investments (Mauritius) Holding Private Limited was not a party to the Arbitration Agreement. That will not be permissible. The learned counsel points out that this objection was raised without prejudice, would also be of no consequence, as having succeeded in stalling the decision of the application under Section 11(6), it cannot now raise the argument before this Court that Apex Investments (Mauritius) Holding Private Limited was never a party. This argument should have been addressed to the Bombay High Court, at least in the alternative form. If in the affidavit before the Bombay High Court filed on their behalf of the non-applicant had raised the issue and still chose not to go into the issue whether Apex Investments (Mauritius) Holding Private Limited was or was not a party to the Shareholders Agreement, that will not be permitted to be raised before this Court. In fact, in restricting to the jurisdictional issue and in not perusing the issue of Apex Investments (Mauritius) Holding Private Limited not being a party to the Shareholders Agreement before Bombay High Court, the non-applicant abandoned that issue. The argument is, therefore, rejected.
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Indian Hotels Company Limited and Others Vs. Income Tax Officer and Others | But neither has been manufactured in the normal sense of the word." * 13. In our view, same would be the position with regard to the foodstuff served or sold by the hotels. The foodstuff prepared by cooking or by any other process from raw materials such as cereals, pulses, vegetables meat or the like cannot be regarded as commercially distinct commodity and it cannot be held that such foodstuff is manufactured or producedFurther, the legislature has differentiated industrial undertaking and trading activity of the assessee who deals in business of hotel by making different provisions. The business of hotel and that of industrial undertaking is considered to be distinct and separate for the purpose of grant of investment allowance under s. 32A or for grant of deduction under s. 80J. Under proviso (c) to s. 32A deduction of investment allowance is not to be made if in respect of any ship, machinery or plant to which the deduction of development rebate is allowable under s. 33. For the machinery and plant installed by an assessee being an Indian company in premises used by it as a hotel, specific provision for grant of deduction of development rebate is made under s. 33(1)(b)(B)(ii). Similarly, under s. 80J for a business of hotel and industrial undertaking separate provisions are prescribed making section applicable namely, sub-ss. (4) and (6). Conditions which are required to be satisfied by such assessees are different. Therefore, an assessee who is carrying on a trading activity of business of a hotel cannot claim the benefit granted to an industrial undertaking by contending that it also produces foodstuff or food packets. 14. In support of his contentions, learned counsel Mr. Choudhary referred to the decision of the Gauhati High Court in CIT vs. Hotel Belle Vue (P) Ltd. 1996 GUW 106 (Gau) : TC S28.2889. In that case the assessee who was running a hotel, installed machinery and plant in hotel premises and claimed investment allowance in respect of it by contending that foodstuff was produced by it. The claim was rejected by the AO but was allowed by the Tribunal and on reference the High Court held that assessees hotel was an industrial undertaking within the meaning of sub-cls. (ii) and (iii) of sub-s. (2) of s. 32A and was entitled to investment allowance. The Court held that the word "manufacture" has not been defined in the Finance Act in its ordinary meaning "manufacture" is a process by which an alternation or change takes place in the goods which are subjected to such manufacture and brought about a commercially new article in the market, when food is prepared from raw materials, definitely a new product is prepared or made, which is known as a different item and the said item cannot be brought to its original form. The Court observed, "therefore, when food is prepared or processed, it must be taken as manufacturing process" * 15. In our view, the aforesaid reasoning is on the face of it, erroneous as discussed above. By processing of raw food, it cannot be said that it results in manufacture or production of new articles. What is done is raw food is processed for the purpose of consumption. Further, it appears that the High Court has mixed up the words "manufacture" and "process" as s. 32A of the Act provides for business of manufacture or production of goods and not for manufacture or processing of goodsAs against the aforesaid decisions, it has been pointed out that some other High Court have taken the view that (i) a hotel is merely a trading concern; and (ii) the activity carried on for preparing food articles for raw materials in a hotel would not constitute manufacture or production of goods. In CIT vs. Casino (P) Ltd. (supra), Division Bench of the Kerala High Court referred to s. 2(6)(d) of the Finance Act, 1968, which defines an industrial company and held that the activity carried on by the assessee in preparing articles of food from raw materials would not constitute manufacture or processing of goods within the meaning of said section. Foodstuffs prepared in the hotels using raw materials such as pulses, wheat, vegetables or meat and the like cannot be said to be manufacturing activity and such activity was trading activity. The Bombay High Court also took the similar view in CIT vs. Berrys Hotels (P) Ltd. 1993 MUM 251 (Bom) and held that benefit of s. 2(7)(c) of Finance Act, 1973, can be given to manufacturing concerns and not to trading concerns. In Fariyas Hotels (P) Ltd. vs. CIT (supra), it held that investment allowance under s. 32A is not available in respect of machinery installed for the purpose of business of the assessee which is engaged in the business of running a hotel as it is essentially a trading activity. Similarly the Calcutta High Court in CIT vs. S.P. Jaiswal Estates (P) Ltd. 1992 CAL 47 (Cal) : TC 28R.227, held that an assessee who claims investment allowance under s. 32A of the Act has to be (1) an industrial undertaking carrying on the business of manufacturing or producing any article or thing, therefore, the business itself has to be that of manufacture or production; (2) the processing of an article or thing is outside the scope of this provision; and (3) the business of a hotel is essentially a non-manufacturing or non-producing or even non-processing concern and is a trading concern. The Court observed that even if the incidental activity of processing food materials into edible products for service to clients in the restaurant is a necessary adjunct of the hotel business and is ultimate nature of the business of hotel-keeping, it is a trading activity. It cannot be held to be a business of manufacture or production of any article or thingIn the result, Transferred Cases Nos. 22 and 23 of 1989 filed by the Revenue are allowed and it is held that the flight kitchen operated by the assessee - | 0[ds]In our view, same would be the position with regard to the foodstuff served or sold by the hotels. The foodstuff prepared by cooking or by any other process from raw materials such as cereals, pulses, vegetables meat or the like cannot be regarded as commercially distinct commodity and it cannot be held that such foodstuff is manufactured or producedFurther, the legislature has differentiated industrial undertaking and trading activity of the assessee who deals in business of hotel by making different provisions. The business of hotel and that of industrial undertaking is considered to be distinct and separate for the purpose of grant of investment allowance under s. 32A or for grant of deduction under s. 80J. Under proviso (c) to s. 32A deduction of investment allowance is not to be made if in respect of any ship, machinery or plant to which the deduction of development rebate is allowable under s. 33. For the machinery and plant installed by an assessee being an Indian company in premises used by it as a hotel, specific provision for grant of deduction of development rebate is made under s. 33(1)(b)(B)(ii). Similarly, under s. 80J for a business of hotel and industrial undertaking separate provisions are prescribed making section applicable namely, sub-ss. (4) and (6). Conditions which are required to be satisfied by such assessees are different. Therefore, an assessee who is carrying on a trading activity of business of a hotel cannot claim the benefit granted to an industrial undertaking by contending that it also produces foodstuff or food packets | 0 | 4,484 | 300 | ### 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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But neither has been manufactured in the normal sense of the word." * 13. In our view, same would be the position with regard to the foodstuff served or sold by the hotels. The foodstuff prepared by cooking or by any other process from raw materials such as cereals, pulses, vegetables meat or the like cannot be regarded as commercially distinct commodity and it cannot be held that such foodstuff is manufactured or producedFurther, the legislature has differentiated industrial undertaking and trading activity of the assessee who deals in business of hotel by making different provisions. The business of hotel and that of industrial undertaking is considered to be distinct and separate for the purpose of grant of investment allowance under s. 32A or for grant of deduction under s. 80J. Under proviso (c) to s. 32A deduction of investment allowance is not to be made if in respect of any ship, machinery or plant to which the deduction of development rebate is allowable under s. 33. For the machinery and plant installed by an assessee being an Indian company in premises used by it as a hotel, specific provision for grant of deduction of development rebate is made under s. 33(1)(b)(B)(ii). Similarly, under s. 80J for a business of hotel and industrial undertaking separate provisions are prescribed making section applicable namely, sub-ss. (4) and (6). Conditions which are required to be satisfied by such assessees are different. Therefore, an assessee who is carrying on a trading activity of business of a hotel cannot claim the benefit granted to an industrial undertaking by contending that it also produces foodstuff or food packets. 14. In support of his contentions, learned counsel Mr. Choudhary referred to the decision of the Gauhati High Court in CIT vs. Hotel Belle Vue (P) Ltd. 1996 GUW 106 (Gau) : TC S28.2889. In that case the assessee who was running a hotel, installed machinery and plant in hotel premises and claimed investment allowance in respect of it by contending that foodstuff was produced by it. The claim was rejected by the AO but was allowed by the Tribunal and on reference the High Court held that assessees hotel was an industrial undertaking within the meaning of sub-cls. (ii) and (iii) of sub-s. (2) of s. 32A and was entitled to investment allowance. The Court held that the word "manufacture" has not been defined in the Finance Act in its ordinary meaning "manufacture" is a process by which an alternation or change takes place in the goods which are subjected to such manufacture and brought about a commercially new article in the market, when food is prepared from raw materials, definitely a new product is prepared or made, which is known as a different item and the said item cannot be brought to its original form. The Court observed, "therefore, when food is prepared or processed, it must be taken as manufacturing process" * 15. In our view, the aforesaid reasoning is on the face of it, erroneous as discussed above. By processing of raw food, it cannot be said that it results in manufacture or production of new articles. What is done is raw food is processed for the purpose of consumption. Further, it appears that the High Court has mixed up the words "manufacture" and "process" as s. 32A of the Act provides for business of manufacture or production of goods and not for manufacture or processing of goodsAs against the aforesaid decisions, it has been pointed out that some other High Court have taken the view that (i) a hotel is merely a trading concern; and (ii) the activity carried on for preparing food articles for raw materials in a hotel would not constitute manufacture or production of goods. In CIT vs. Casino (P) Ltd. (supra), Division Bench of the Kerala High Court referred to s. 2(6)(d) of the Finance Act, 1968, which defines an industrial company and held that the activity carried on by the assessee in preparing articles of food from raw materials would not constitute manufacture or processing of goods within the meaning of said section. Foodstuffs prepared in the hotels using raw materials such as pulses, wheat, vegetables or meat and the like cannot be said to be manufacturing activity and such activity was trading activity. The Bombay High Court also took the similar view in CIT vs. Berrys Hotels (P) Ltd. 1993 MUM 251 (Bom) and held that benefit of s. 2(7)(c) of Finance Act, 1973, can be given to manufacturing concerns and not to trading concerns. In Fariyas Hotels (P) Ltd. vs. CIT (supra), it held that investment allowance under s. 32A is not available in respect of machinery installed for the purpose of business of the assessee which is engaged in the business of running a hotel as it is essentially a trading activity. Similarly the Calcutta High Court in CIT vs. S.P. Jaiswal Estates (P) Ltd. 1992 CAL 47 (Cal) : TC 28R.227, held that an assessee who claims investment allowance under s. 32A of the Act has to be (1) an industrial undertaking carrying on the business of manufacturing or producing any article or thing, therefore, the business itself has to be that of manufacture or production; (2) the processing of an article or thing is outside the scope of this provision; and (3) the business of a hotel is essentially a non-manufacturing or non-producing or even non-processing concern and is a trading concern. The Court observed that even if the incidental activity of processing food materials into edible products for service to clients in the restaurant is a necessary adjunct of the hotel business and is ultimate nature of the business of hotel-keeping, it is a trading activity. It cannot be held to be a business of manufacture or production of any article or thingIn the result, Transferred Cases Nos. 22 and 23 of 1989 filed by the Revenue are allowed and it is held that the flight kitchen operated by the assessee -
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In our view, same would be the position with regard to the foodstuff served or sold by the hotels. The foodstuff prepared by cooking or by any other process from raw materials such as cereals, pulses, vegetables meat or the like cannot be regarded as commercially distinct commodity and it cannot be held that such foodstuff is manufactured or producedFurther, the legislature has differentiated industrial undertaking and trading activity of the assessee who deals in business of hotel by making different provisions. The business of hotel and that of industrial undertaking is considered to be distinct and separate for the purpose of grant of investment allowance under s. 32A or for grant of deduction under s. 80J. Under proviso (c) to s. 32A deduction of investment allowance is not to be made if in respect of any ship, machinery or plant to which the deduction of development rebate is allowable under s. 33. For the machinery and plant installed by an assessee being an Indian company in premises used by it as a hotel, specific provision for grant of deduction of development rebate is made under s. 33(1)(b)(B)(ii). Similarly, under s. 80J for a business of hotel and industrial undertaking separate provisions are prescribed making section applicable namely, sub-ss. (4) and (6). Conditions which are required to be satisfied by such assessees are different. Therefore, an assessee who is carrying on a trading activity of business of a hotel cannot claim the benefit granted to an industrial undertaking by contending that it also produces foodstuff or food packets
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Supreme General Films Exchange Ltd Vs. His Highness Maharaja Sir Brijnath Singhji Deo Of Maihar &O | him to sue for the declarations he sought. He was not seeking a merely whimsical or eccentric or an unreasonable declaration of a right in property with no enforciable legal claims over it which could remain unaffected by the defendant-appellants claims as a lessee,17. Surjya Kumar v, Girish Chandra, AIR 1951 Assam 101, was cited to contend that the declaration sought by the plaintiff was unnecessary if the lease of the defendant-appellant was void. we find, from the pleadings in the case before us, that the defendant-appellant had actually denied the plaintiffs rights as a mortgagee and also the validity of the compromise decree in suit No. 15-A of 1954. No doubt the plaintiff had not sought a decree for possession as that could not be granted at the time whom the suit was filed. Nevertheless. he had reasonable grounds to apprehend that the defendant-appellant company will rely upon its alleged lease, as it did. in the course of execution proceedings, to resist delivery of actual possession to an auction purchaser, The existence of lessee rights would certainly affect the price an auction purchaser would be prepared to pay for the property or, in other words, what a mortgagee or one who had got the property attached could realize for the property to satisfy his dues. Thus, the plaintiff needed the declaration; and in the circumstances of the case. the declarations sought for could not be reasonably denied to him.18. The contention that the case fell outside the purview of Section 52 of the Transfer of Property Act as the lease was executed in purported satisfaction of an antecedent claim rests upon the terms of an agreement of 1948, embodied in a letter, on the strength of which the defendant-appellant had filed his suit for specific performance. We find that the terms of the compromise decree in that suit and lease-deed of 1956 purported to confer upon the defendant-appellant new rights, Indeed, there are good grounds for suspecting that the compromise in the suit for specific performance was adopted as a device to get round legal difficulties in the execution of the lease of 1956 in favour of the defendant-company. We are unable to accept the argument, sought to be supported by the citation of Bishan Singh v. Khazan Singh. 1959 SCR 878 = (AIR 1958 SC 8381 that the lease was merely an enforcement of an antecedent or pre-existing right. We think that it purported to create entirely new rights pendente lite. It was, therefore, struck by the doctrine of lis-pendens, as explained by this Court in Jayaram Mudaliar v. Ayyaswami. (1973) 1 SCR 139 = (AIR l973 SC 569), embodied in Section 52 of the. Transfer of Property Act.19. An alternative argument of the appellant was that a case falling within Section 65-A (2) (e) of the Transfer of Property Act, confining the duration of a lease by a mortgagor to three years, being a special provision, displaces the provisions of Section 52 of the Transfer of Property Act. This argument overlooks the special objects of the doctrine of lis-pendens which applies to a case in which litigation, relating to property in which rights are sought to be created pendente lite by acts of parties, is pending. Moreover, for the purposes of this argument, the defendant-appellant assumes that the provisions of Section 65-A (2) (e). Transfer of Property Act are applicable. If that was so, it would make up substantial difference to the rights of the defendant-appellant, which would vanish before the suit was filed if Section 65-A applies. We however think that, as the special doctrine of lis- pendens is applicable here, the purported lease of 1956 was invalid from the outset. In this view of the matter, it is not necessary to consider the applicability of Section 65-A (2) (e) which the defendant-appellant denies, to the facts of this case,20. As regards the applicability of Section 64. Civil Procedure Code, we find that parties disagree on the question whether the attachment made by the Central Bank on 20-4-1955, in execution of the decree of which the plaintiff-respondent was the assignee, existed on the date of the impugned lease of 30-3-1956. Learned Counsel for the appellant relied upon the terms of an order recorded on the order sheet, in the Court of Additional District Judge. Jabalpur, in Civil Suit No. 3-B of 1952, on 25-1-1956. showing that in view of the stay order received from the High Court, execution could not proceed. The order sheet, however, also contains the enigmatic statement that execution was dismissed as infructuous but the attachment was to continue for six months. The High Court had treated the last part of the statement in the order sheet as void and ineffective presumably on the ground that the Additional District Judge had no jurisdiction either to lift the attachment or to dismiss the execution proceedings after the High Court had given its order staving all further action in execution proceedings. The terms of the High Courts order are not evident from anything placed before us, on the other hand, learned Counsel for the plaintiff respondent relies upon a subsequent order of the same Court, passed on 30-4-1960. in the same suit. This order shows that a compromise had been arrived at between the decree holder and the judgment-debtor under which the decree holder had agreed to lift attachment of property except with regard to Plaza Talkies which was to continue. We are, therefore, unable to hold that the concurrent findings of the trial Court and the High Court, that the Plaza Talkies was attached in execution of decree in suit No. 3-B of 1952 -on 4-5-1955 and that this attachment was in existence when the impugned lease was executed on 30-3-1956. are erroneous. On these findings, the lease of 1956 was certainly struck by the provisions of Section 64. Civil Procedure Code also. Section 64. Civi1 Procedure Code, in fact, constitutes an application of the doctrine of lis pendens in the circumstances specified there. | 0[ds]These arguments rest on the assumption that no declaratory relief can be granted outside the ambit of Section 42 of the Specific Relief Act,think that the decision in this case also does not assist the appellant much.The result is that Section 42 merely gives statutory recognition to a well-recognized type of declaratory relief and subject it to a limitation, but it cannot be deemed to exhaust every kind of declaratory relief or to circumscribe the jurisdiction of Courts to give declarations of right in appropriate cases falling outside Section 42.16. We think that the circumstances in which a declaratory decree under Section 42 should be awarded is a matter of discretion depending upon the facts of each case. No doubt a complete stranger whose interest is not affected by anothers legal character or who has no interest in anothers property could not get a declaration under Section 42, Specific Relief Act with reference to the legal character or the property involved. Such, however, is not the case before us. The plaintiff- respondent, in the case before us. had not only the rights of a mortgagee decree-holder with regard to the property involved but he was also the assignee of the rights of the Bank which had got the property in question attached in execution of its decree. We find, from connected special leave petitions against orders under Order 21.Rule 95. Civil Procedure Code that the plaintiffs wife became the auction purchaser of this property during the pendency of the litigation now before us. At the time when he filed the suit the plaintiff may have been looking forward to purchasing the property. Although, the mere possibility of future rights of an intending purchaser could not, by itself, be enough to entitle him to get a declaration relating to a purported lease affecting the right to possess and enjoy the property. Yet, we think that the plaintiff possessed sufficient legal interest in the theatre, as a mortgagee as well as an assignee of a decree holder who had got the property attached before he filed his suit, so as to enable him to sue for the declarations he sought. He was not seeking a merely whimsical or eccentric or an unreasonable declaration of a right in property with no enforciable legal claims over it which could remain unaffected by the defendant-appellants claims as aThe contention that the case fell outside the purview of Section 52 of the Transfer of Property Act as the lease was executed in purported satisfaction of an antecedent claim rests upon the terms of an agreement of 1948, embodied in a letter, on the strength of which the defendant-appellant had filed his suit for specific performance. We find that the terms of the compromise decree in that suit and lease-deed of 1956 purported to confer upon the defendant-appellant new rights, Indeed, there are good grounds for suspecting that the compromise in the suit for specific performance was adopted as a device to get round legal difficulties in the execution of the lease of 1956 in favour of the defendant-company. We are unable to accept the argument, sought to be supported by the citation of Bishan Singh v. Khazan Singh. 1959 SCR 878 = (AIR 1958 SC 8381 that the lease was merely an enforcement of an antecedent or pre-existing right. We think that it purported to create entirely new rights pendente lite. It was, therefore, struck by the doctrine of lis-pendens, as explained by this Court in Jayaram Mudaliar v. Ayyaswami. (1973) 1 SCR 139 = (AIR l973 SC 569), embodied in Section 52 of the. Transfer of Propertyargument overlooks the special objects of the doctrine of lis-pendens which applies to a case in which litigation, relating to property in which rights are sought to be created pendente lite by acts of parties, is pending. Moreover, for the purposes of this argument, the defendant-appellant assumes that the provisions of Section 65-A (2) (e). Transfer of Property Act are applicable. If that was so, it would make up substantial difference to the rights of the defendant-appellant, which would vanish before the suit was filed if Section 65-A applies. We however think that, as the special doctrine of lis- pendens is applicable here, the purported lease of 1956 was invalid from the outset. In this view of the matter, it is not necessary to consider the applicability of Section 65-A (2) (e) which the defendant-appellant denies, to the facts of this case,20. As regards the applicability of Section 64. Civil Procedure Code, we find that parties disagree on the question whether the attachment made by the Central Bank on 20-4-1955, in execution of the decree of which the plaintiff-respondent was the assignee, existed on the date of the impugned lease of 30-3-1956. Learned Counsel for the appellant relied upon the terms of an order recorded on the order sheet, in the Court of Additional District Judge. Jabalpur, in Civil Suit No. 3-B of 1952, on 25-1-1956. showing that in view of the stay order received from the High Court, execution could not proceed. The order sheet, however, also contains the enigmatic statement that execution was dismissed as infructuous but the attachment was to continue for six months. The High Court had treated the last part of the statement in the order sheet as void and ineffective presumably on the ground that the Additional District Judge had no jurisdiction either to lift the attachment or to dismiss the execution proceedings after the High Court had given its order staving all further action in execution proceedings. The terms of the High Courts order are not evident from anything placed before us, on the other hand, learned Counsel for the plaintiff respondent relies upon a subsequent order of the same Court, passed on 30-4-1960. in the same suit. This order shows that a compromise had been arrived at between the decree holder and the judgment-debtor under which the decree holder had agreed to lift attachment of property except with regard to Plaza Talkies which was to continue. We are, therefore, unable to hold that the concurrent findings of the trial Court and the High Court, that the Plaza Talkies was attached in execution of decree in suit No. 3-B of 1952 -on 4-5-1955 and that this attachment was in existence when the impugned lease was executed on 30-3-1956. are erroneous. On these findings, the lease of 1956 was certainly struck by the provisions of Section 64. Civil Procedure Code also. Section 64. Civi1 Procedure Code, in fact, constitutes an application of the doctrine of lis pendens in the circumstances specified there. | 0 | 3,552 | 1,207 | ### 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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him to sue for the declarations he sought. He was not seeking a merely whimsical or eccentric or an unreasonable declaration of a right in property with no enforciable legal claims over it which could remain unaffected by the defendant-appellants claims as a lessee,17. Surjya Kumar v, Girish Chandra, AIR 1951 Assam 101, was cited to contend that the declaration sought by the plaintiff was unnecessary if the lease of the defendant-appellant was void. we find, from the pleadings in the case before us, that the defendant-appellant had actually denied the plaintiffs rights as a mortgagee and also the validity of the compromise decree in suit No. 15-A of 1954. No doubt the plaintiff had not sought a decree for possession as that could not be granted at the time whom the suit was filed. Nevertheless. he had reasonable grounds to apprehend that the defendant-appellant company will rely upon its alleged lease, as it did. in the course of execution proceedings, to resist delivery of actual possession to an auction purchaser, The existence of lessee rights would certainly affect the price an auction purchaser would be prepared to pay for the property or, in other words, what a mortgagee or one who had got the property attached could realize for the property to satisfy his dues. Thus, the plaintiff needed the declaration; and in the circumstances of the case. the declarations sought for could not be reasonably denied to him.18. The contention that the case fell outside the purview of Section 52 of the Transfer of Property Act as the lease was executed in purported satisfaction of an antecedent claim rests upon the terms of an agreement of 1948, embodied in a letter, on the strength of which the defendant-appellant had filed his suit for specific performance. We find that the terms of the compromise decree in that suit and lease-deed of 1956 purported to confer upon the defendant-appellant new rights, Indeed, there are good grounds for suspecting that the compromise in the suit for specific performance was adopted as a device to get round legal difficulties in the execution of the lease of 1956 in favour of the defendant-company. We are unable to accept the argument, sought to be supported by the citation of Bishan Singh v. Khazan Singh. 1959 SCR 878 = (AIR 1958 SC 8381 that the lease was merely an enforcement of an antecedent or pre-existing right. We think that it purported to create entirely new rights pendente lite. It was, therefore, struck by the doctrine of lis-pendens, as explained by this Court in Jayaram Mudaliar v. Ayyaswami. (1973) 1 SCR 139 = (AIR l973 SC 569), embodied in Section 52 of the. Transfer of Property Act.19. An alternative argument of the appellant was that a case falling within Section 65-A (2) (e) of the Transfer of Property Act, confining the duration of a lease by a mortgagor to three years, being a special provision, displaces the provisions of Section 52 of the Transfer of Property Act. This argument overlooks the special objects of the doctrine of lis-pendens which applies to a case in which litigation, relating to property in which rights are sought to be created pendente lite by acts of parties, is pending. Moreover, for the purposes of this argument, the defendant-appellant assumes that the provisions of Section 65-A (2) (e). Transfer of Property Act are applicable. If that was so, it would make up substantial difference to the rights of the defendant-appellant, which would vanish before the suit was filed if Section 65-A applies. We however think that, as the special doctrine of lis- pendens is applicable here, the purported lease of 1956 was invalid from the outset. In this view of the matter, it is not necessary to consider the applicability of Section 65-A (2) (e) which the defendant-appellant denies, to the facts of this case,20. As regards the applicability of Section 64. Civil Procedure Code, we find that parties disagree on the question whether the attachment made by the Central Bank on 20-4-1955, in execution of the decree of which the plaintiff-respondent was the assignee, existed on the date of the impugned lease of 30-3-1956. Learned Counsel for the appellant relied upon the terms of an order recorded on the order sheet, in the Court of Additional District Judge. Jabalpur, in Civil Suit No. 3-B of 1952, on 25-1-1956. showing that in view of the stay order received from the High Court, execution could not proceed. The order sheet, however, also contains the enigmatic statement that execution was dismissed as infructuous but the attachment was to continue for six months. The High Court had treated the last part of the statement in the order sheet as void and ineffective presumably on the ground that the Additional District Judge had no jurisdiction either to lift the attachment or to dismiss the execution proceedings after the High Court had given its order staving all further action in execution proceedings. The terms of the High Courts order are not evident from anything placed before us, on the other hand, learned Counsel for the plaintiff respondent relies upon a subsequent order of the same Court, passed on 30-4-1960. in the same suit. This order shows that a compromise had been arrived at between the decree holder and the judgment-debtor under which the decree holder had agreed to lift attachment of property except with regard to Plaza Talkies which was to continue. We are, therefore, unable to hold that the concurrent findings of the trial Court and the High Court, that the Plaza Talkies was attached in execution of decree in suit No. 3-B of 1952 -on 4-5-1955 and that this attachment was in existence when the impugned lease was executed on 30-3-1956. are erroneous. On these findings, the lease of 1956 was certainly struck by the provisions of Section 64. Civil Procedure Code also. Section 64. Civi1 Procedure Code, in fact, constitutes an application of the doctrine of lis pendens in the circumstances specified there.
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should be awarded is a matter of discretion depending upon the facts of each case. No doubt a complete stranger whose interest is not affected by anothers legal character or who has no interest in anothers property could not get a declaration under Section 42, Specific Relief Act with reference to the legal character or the property involved. Such, however, is not the case before us. The plaintiff- respondent, in the case before us. had not only the rights of a mortgagee decree-holder with regard to the property involved but he was also the assignee of the rights of the Bank which had got the property in question attached in execution of its decree. We find, from connected special leave petitions against orders under Order 21.Rule 95. Civil Procedure Code that the plaintiffs wife became the auction purchaser of this property during the pendency of the litigation now before us. At the time when he filed the suit the plaintiff may have been looking forward to purchasing the property. Although, the mere possibility of future rights of an intending purchaser could not, by itself, be enough to entitle him to get a declaration relating to a purported lease affecting the right to possess and enjoy the property. Yet, we think that the plaintiff possessed sufficient legal interest in the theatre, as a mortgagee as well as an assignee of a decree holder who had got the property attached before he filed his suit, so as to enable him to sue for the declarations he sought. He was not seeking a merely whimsical or eccentric or an unreasonable declaration of a right in property with no enforciable legal claims over it which could remain unaffected by the defendant-appellants claims as aThe contention that the case fell outside the purview of Section 52 of the Transfer of Property Act as the lease was executed in purported satisfaction of an antecedent claim rests upon the terms of an agreement of 1948, embodied in a letter, on the strength of which the defendant-appellant had filed his suit for specific performance. We find that the terms of the compromise decree in that suit and lease-deed of 1956 purported to confer upon the defendant-appellant new rights, Indeed, there are good grounds for suspecting that the compromise in the suit for specific performance was adopted as a device to get round legal difficulties in the execution of the lease of 1956 in favour of the defendant-company. We are unable to accept the argument, sought to be supported by the citation of Bishan Singh v. Khazan Singh. 1959 SCR 878 = (AIR 1958 SC 8381 that the lease was merely an enforcement of an antecedent or pre-existing right. We think that it purported to create entirely new rights pendente lite. It was, therefore, struck by the doctrine of lis-pendens, as explained by this Court in Jayaram Mudaliar v. Ayyaswami. (1973) 1 SCR 139 = (AIR l973 SC 569), embodied in Section 52 of the. Transfer of Propertyargument overlooks the special objects of the doctrine of lis-pendens which applies to a case in which litigation, relating to property in which rights are sought to be created pendente lite by acts of parties, is pending. Moreover, for the purposes of this argument, the defendant-appellant assumes that the provisions of Section 65-A (2) (e). Transfer of Property Act are applicable. If that was so, it would make up substantial difference to the rights of the defendant-appellant, which would vanish before the suit was filed if Section 65-A applies. We however think that, as the special doctrine of lis- pendens is applicable here, the purported lease of 1956 was invalid from the outset. In this view of the matter, it is not necessary to consider the applicability of Section 65-A (2) (e) which the defendant-appellant denies, to the facts of this case,20. As regards the applicability of Section 64. Civil Procedure Code, we find that parties disagree on the question whether the attachment made by the Central Bank on 20-4-1955, in execution of the decree of which the plaintiff-respondent was the assignee, existed on the date of the impugned lease of 30-3-1956. Learned Counsel for the appellant relied upon the terms of an order recorded on the order sheet, in the Court of Additional District Judge. Jabalpur, in Civil Suit No. 3-B of 1952, on 25-1-1956. showing that in view of the stay order received from the High Court, execution could not proceed. The order sheet, however, also contains the enigmatic statement that execution was dismissed as infructuous but the attachment was to continue for six months. The High Court had treated the last part of the statement in the order sheet as void and ineffective presumably on the ground that the Additional District Judge had no jurisdiction either to lift the attachment or to dismiss the execution proceedings after the High Court had given its order staving all further action in execution proceedings. The terms of the High Courts order are not evident from anything placed before us, on the other hand, learned Counsel for the plaintiff respondent relies upon a subsequent order of the same Court, passed on 30-4-1960. in the same suit. This order shows that a compromise had been arrived at between the decree holder and the judgment-debtor under which the decree holder had agreed to lift attachment of property except with regard to Plaza Talkies which was to continue. We are, therefore, unable to hold that the concurrent findings of the trial Court and the High Court, that the Plaza Talkies was attached in execution of decree in suit No. 3-B of 1952 -on 4-5-1955 and that this attachment was in existence when the impugned lease was executed on 30-3-1956. are erroneous. On these findings, the lease of 1956 was certainly struck by the provisions of Section 64. Civil Procedure Code also. Section 64. Civi1 Procedure Code, in fact, constitutes an application of the doctrine of lis pendens in the circumstances specified there.
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National Mineral Dev.Corpn.Ltd Vs. State Of M.P. | Mineral Concession Rules, 1960. The Mineral Concession Rules, 1960 (hereinafter referred to as the Rules, for short) have been framed by the Central Government in exercise of the powers conferred by Section 13 of the Mines and Minerals Regulation and Development Act, 1957. Rules 64-B and 64-C have been introduced therein by GSR 743(E) dated 25.9.2000 which read as under: "64-B. Charging of Royalty in case of minerals subjected to processing : (1) In case processing of run-of mine mineral is carried out within the leased area, then, royalty shall be chargeable on the processed mineral removed from the leased area.(2) In case run-of-mine mineral is removed from the leased area to a processing plant which is located outside the leased area, then, royalty shall be chargeable on the unprocessed run-of-mine mineral and not on the processed product." "64-C Royalty on tailings or rejects- On removal of tailings or rejects from the leased area for dumping and not for sale or consumption, outside leased area such tailings or rejects shall not be liable for payment of royalty:Provided that in case so dumped tailing or rejects are used for sale or consumption on any later date after the date of such dumping, then, such tailings or rejects shall be liable for payment of royalty." 33. Though the objects and reasons which prompted the abovesaid amendment are not known to us (none placed for consideration by any of the parties) in all probability the same seems to have been prompted by the pronouncement of this Court in State of Orissa vs. Steel Authority of India Ltd. (supra). Be that as it may, the abovesaid Rules also suggest the intention of the Government that dumped tailings or rejects (or in other words slimes) are to be treated as a separated head and charge of royalty therein is not to be made as a matter of course. Dumped tailings or rejects may be liable to payment of royalty if only they are sold or consumed. Rules 64-B and 64-C are general in nature, applicable to all types of minerals. There are several other entries in the Second Schedule where a mineral is liable to royalty on tonnage basis no sooner extracted and as run-of-mine (ROM). Such entries do not further classify the mineral by reference to its constituents. The case of iron ore is different. So far as the iron ore is concerned, the provisions of the Section 9 of the Act read with Entry 23 of the Second Schedule and the abovesaid Rules homogeneously construed do not subject the run of mine (ROM) to payment of royalty. The Second Schedule does not prescribe any rate of royalty on the iron ore as run-of-mine and the levy of royalty has to be postponed until the processing has been done and the quantity of lumps, fines and concentrates (none of which will include slimes) has been found out on the availability of which data alone the royalty is capable of being quantified. Under the Second Schedule, the slimes which have come into existence shall have to be excluded from the charge of royalty.34. S/Shri S.K. Agnihotri and Prakash Shrivastava, the learned counsel for the States of Madhya Pradesh and Chhatisgarh submitted that the Rules 64-B and 64-C have come to be framed on 25.9.2000 and cannot be applied retrospectively. We agree. There is no question of giving the abovesaid amendment in Rules a retrospective operation. These Rules only clarify the position as it already existed and are intended to remove the doubts. We have pressed the said two Rules into service only for the purpose of reinforcing the conclusion which we have already arrived at de hors the said amendment in Rules. 35. The case of State of Orissa vs. Steel Authority of India Ltd. (supra), which was relied on by the High Court and by the learned counsel for the respondents before us is distinguishable. There the question arose as to the charge of royalty on dolomite and limestone dealt with by Entries 15 and 26 respectively of the Second Schedule. Both these minerals were utilized as raw material by the mining lessees on the leased area itself. The mining lessee claimed that dolomite and limestone having been extracted from the mine underwent processing wherein a part of the mineral was wasted and the wastage remained on the leased area and not removed therefrom. The contention of the lessee was that royalty could not be demanded on that portion of the wastage which was not removed from the mining area. This contention was repelled by this Court by reference to Section 9(1) of the Act which speaks of payment of royalty in respect of any mineral removed or consumed by the lessee. The Court held that though the impurities part of dolomite and limestone was not removed from the leased area but that would not make any difference as the run-of-mine was itself consumed in the processing on the leased area. 36. Entry 15 levies royalty on tonnage basis on the dolomite itself so also Entry 26 levies royalty on limestone itself as run-of-mine though two different rates are prescribed depending on the grade or percentage of silica content in the limestone. The scheme of those two entries is different from the scheme of Entry 23 dealing with iron ore. As no rate of royalty has been prescribed in the Second Schedule to be charged on slimes and also no rate of royalty has been prescribed or iron ore as run-of-mine, royalty cannot be charged on the wastage.37. Our answers to the questions framed in the earlier part of this judgment are:(i) Slime or slimes is a term well understood in mining industry and trade. It is different from fines and concentrates - the term as used in the Second Schedule, Entry-23 of this Act;(ii) Slime or slimes cannot be included in fines or concentrates for the purpose of charging royalty under Section 9(1) read with Entry-23 of the Second Schedule of the Act. | 1[ds]17. From the abovesaid definitions as available in two reference books, the High Court has concluded that slime is nothing but powdery form of iron ore and it contains small grains ofA little after we will test the impact of the inference sothe submission of the appellant, the iron ore slimes have been treated as waste product though it contains iron content in the range ofbecause it is not usable by any of the existing technologies. Suitable technologies are still being explored and examined for converting these iron ore slimes into valuable added products.22. The submission is not refuted by the respondents that although efforts are being made to win ferrous material from the slimes by innovating scientific and technological methods, the achievements made till this date do not make the process commercially viable inasmuch as the cost incurred in winning ferrous material from slimes is prohibitive; the cost incurred exceeds the value of the ferrous so won, out of all proportion. Thus whatever may be the future, as on the day, the slime, including its ferrous contents, is just a waste with no commercial value as it can neither be used or consumed and there are not takers of the same in business, commerce andcharging provision and the computation provision do differ qualitatively. In case of conflict, the computation provision shall give way to the charging provision. In case of doubt or ambiguity the computing provision shall be so interpreted as to act in aid of charging provision. If the two can be read together homogenously then both shall be given effect to, more so, when it is clear from the computation provision that is meant to supplement the charging provision and, is, on its own, a substantive provision in the sense that but for the computation provision the charging provision alone would not work. The computing provision cannot be treated as mere surplusage or of no significance; what necessarily flows therefrom shall also have to be given effect to.25. Applying the abovestated principle, it is clear that Section 9 neither prescribes the rate of royalty nor does it lay down how the royalty shall be computed. The rate of royalty and its computation methodology are to be found in the Second Schedule and therefore the reading of Section 9 which authorizes charging of royalty cannot be complete unless what is specified in the Second Schedule is also read as part and parcel of Section 9.26. A bare reading of Entry 23 reveals that the Parliament has not chosen to compute royalty on iron ore by itself and quantifiable as run of mine (ROM). The Parliament is conscious of the fact that iron ore shall have to be subjected to processing whereafter it would yield (i) lumps, (ii) fines, (iii) concentrates and (iv) slimesthe last one to be found deposited in the tailing pond. The Parliament has to be attributed with the knowledge that keeping in view the advancements in the field of science and technology as on the day, the slimes do not have any commercial value. While carrying out prospecting operations it is known what will be the strength of the iron ore (i.e. the percentage of ferrous content) available in a particular area. By reference to such strength or quality of iron ore, the rate of royalty could have been made available for calculation based on the quantity of the iron ore as run of mine and quantifiable on per tonne of iron ore, that is, tonnage of iron ore as such. Parliament has chosen not to do so. Entry 23, the manner in which it has been drafted, mandates the quantification of royalty to await or be postponed until the processing has been carried out and the lumps, fines and concentrates are prepared. Once the result of processing is available, the lumps, fines and the concentrates are subjected to levy of royalty at different rates applied by reference to the quantity of each of the three items earned as a result of processing. The slimes have been left out of consideration by Entry 23 for the purpose of quantification and levy.27. The High Court is, therefore, not right in forming an opinion that the slimes are part of fines and hence liable to be included in Clause (ii) of Entry 23 for the purpose of charging the royalty. In the mining circles, fines and slimes both have different meanings. Both the terms are well understood as two different objects. Slimes cannot be included inreason is that it is they who are concerned with it, and, it is the sense in which they understand it which constitutes the definitive index of legislative intention." "The true test for classification was the test of commercial identity and not the functional test". The learned author states that the question to be asked in such cases in how is the product identified by the class or section of people dealing with or using the product? If the word has acquired a particular meaning in the trade or commercial circles that meaning becomes the popular meaning in the context and should normally be accepted. The words having a special meaning in the context of a particular field of art or science ought to be understood in that sense. Such a special meaning, i.e. the technical meaning, shall be assigned as distinguished from the more common meaning that the word may have.29. It is clear that in iron or production the run of mine (ROM) is in a very crude form. A lot of waste material called impurities accompanies the iron ore. The ore has to be upgraded. Upgrading the ores is called beneficiation. That saves the cost of transportation. Different processes have been developed by science and technology and accepted and adopted in different iron ore projects for the purpose of beneficiation. In the processes, a stage is reached which yields concentrates. They are treated in the concentrate plant by resort to physical, chemical and / or electrical methods. The valuable constituents are retained and what is discarded as tailings or slimes is something of no commercial value, being just impurities consisting of unusable materials. Concentrates is not necessarily a stage reached in all the processes. Concentrates consist of enriched ore segregated from waste in concentration plant. It is a substance of intensified strength having been purified by removal of valueless mud, slurry, impurities and waste. Wet processing (at a stage after fines have already been won) separates extremely fine particles, grains or fragments of ore which are too poor to be treated any further and have to be flown for being consigned to tail bonds as waste separated from concentrates. From concentrates iron can yet be won. Concentrates differ from slimes are to be found as such not in concentration plant but only in tail pond. What reaches tailing dam or pond is slurry. Solid particles are deposited and clean water overflows. This processing is done to prevent pollution and to protect environment. There are ferrous contents in the slurry but that is a total waste. Inasmuch as, and undisputedly, by any process or technique known to science and technology till this date, winning of ferrous contents from out of the slurry is commercial unviable. The slimes are accepted by the mother Earth once again to be dissolved in itsdone so the Parliament has not saidfines including slimes. Though slimes are not fines the Parliament could have assigned an artificial or extended meaning to fines for the purpose of levy of Royalty which it has chosen not to do. It is clearly suggestive of its intention not to take into consideration slimes for quantifying the amount of royalty. This deliberate omission of Parliament cannot be made good by interpretative process so as to charge royalty on slimes by reading Section 9 of the Act divorced from the provisions of the Second Schedule. Even if slimes were to be held liable to charge of royalty, the question would still have remained at what rate and on what quantity, which questions cannot be answered by Section 9.Though the objects and reasons which prompted the abovesaid amendment are not known to us (none placed for consideration by any of the parties) in all probability the same seems to have been prompted by the pronouncement of this Court in State of Orissa vs. Steel Authority of India Ltd. (supra). Be that as it may, the abovesaid Rules also suggest the intention of the Government that dumped tailings or rejects (or in other words slimes) are to be treated as a separated head and charge of royalty therein is not to be made as a matter of course. Dumped tailings or rejects may be liable to payment of royalty if only they are sold or consumed. Rulesare general in nature, applicable to all types of minerals. There are several other entries in the Second Schedule where a mineral is liable to royalty on tonnage basis no sooner extracted and as(ROM). Such entries do not further classify the mineral by reference to its constituents. The case of iron ore is different. So far as the iron ore is concerned, the provisions of the Section 9 of the Act read with Entry 23 of the Second Schedule and the abovesaid Rules homogeneously construed do not subject the run of mine (ROM) to payment of royalty. The Second Schedule does not prescribe any rate of royalty on the iron ore asand the levy of royalty has to be postponed until the processing has been done and the quantity of lumps, fines and concentrates (none of which will include slimes) has been found out on the availability of which data alone the royalty is capable of being quantified. Under the Second Schedule, the slimes which have come into existence shall have to be excluded from the charge of royalty.34. S/Shri S.K. Agnihotri and Prakash Shrivastava, the learned counsel for the States of Madhya Pradesh and Chhatisgarh submitted that the Ruleshave come to be framed on 25.9.2000 and cannot be applied retrospectively. We agree. There is no question of giving the abovesaid amendment in Rules a retrospective operation. These Rules only clarify the position as it already existed and are intended to remove the doubts. We have pressed the said two Rules into service only for the purpose of reinforcing the conclusion which we have already arrived at de hors the said amendment in Rules.Entry 15 levies royalty on tonnage basis on the dolomite itself so also Entry 26 levies royalty on limestone itself asthough two different rates are prescribed depending on the grade or percentage of silica content in the limestone. The scheme of those two entries is different from the scheme of Entry 23 dealing with iron ore. As no rate of royalty has been prescribed in the Second Schedule to be charged on slimes and also no rate of royalty has been prescribed or iron ore asroyalty cannot be charged on the wastage.37. Our answers to the questions framed in the earlier part of this judgment are:(i) Slime or slimes is a term well understood in mining industry and trade. It is different from fines and concentratesthe term as used in the Second Schedule,of this Act;(ii) Slime or slimes cannot be included in fines or concentrates for the purpose of charging royalty under Section 9(1) read withof the Second Schedule of the Act. | 1 | 7,441 | 2,082 | ### 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:
Mineral Concession Rules, 1960. The Mineral Concession Rules, 1960 (hereinafter referred to as the Rules, for short) have been framed by the Central Government in exercise of the powers conferred by Section 13 of the Mines and Minerals Regulation and Development Act, 1957. Rules 64-B and 64-C have been introduced therein by GSR 743(E) dated 25.9.2000 which read as under: "64-B. Charging of Royalty in case of minerals subjected to processing : (1) In case processing of run-of mine mineral is carried out within the leased area, then, royalty shall be chargeable on the processed mineral removed from the leased area.(2) In case run-of-mine mineral is removed from the leased area to a processing plant which is located outside the leased area, then, royalty shall be chargeable on the unprocessed run-of-mine mineral and not on the processed product." "64-C Royalty on tailings or rejects- On removal of tailings or rejects from the leased area for dumping and not for sale or consumption, outside leased area such tailings or rejects shall not be liable for payment of royalty:Provided that in case so dumped tailing or rejects are used for sale or consumption on any later date after the date of such dumping, then, such tailings or rejects shall be liable for payment of royalty." 33. Though the objects and reasons which prompted the abovesaid amendment are not known to us (none placed for consideration by any of the parties) in all probability the same seems to have been prompted by the pronouncement of this Court in State of Orissa vs. Steel Authority of India Ltd. (supra). Be that as it may, the abovesaid Rules also suggest the intention of the Government that dumped tailings or rejects (or in other words slimes) are to be treated as a separated head and charge of royalty therein is not to be made as a matter of course. Dumped tailings or rejects may be liable to payment of royalty if only they are sold or consumed. Rules 64-B and 64-C are general in nature, applicable to all types of minerals. There are several other entries in the Second Schedule where a mineral is liable to royalty on tonnage basis no sooner extracted and as run-of-mine (ROM). Such entries do not further classify the mineral by reference to its constituents. The case of iron ore is different. So far as the iron ore is concerned, the provisions of the Section 9 of the Act read with Entry 23 of the Second Schedule and the abovesaid Rules homogeneously construed do not subject the run of mine (ROM) to payment of royalty. The Second Schedule does not prescribe any rate of royalty on the iron ore as run-of-mine and the levy of royalty has to be postponed until the processing has been done and the quantity of lumps, fines and concentrates (none of which will include slimes) has been found out on the availability of which data alone the royalty is capable of being quantified. Under the Second Schedule, the slimes which have come into existence shall have to be excluded from the charge of royalty.34. S/Shri S.K. Agnihotri and Prakash Shrivastava, the learned counsel for the States of Madhya Pradesh and Chhatisgarh submitted that the Rules 64-B and 64-C have come to be framed on 25.9.2000 and cannot be applied retrospectively. We agree. There is no question of giving the abovesaid amendment in Rules a retrospective operation. These Rules only clarify the position as it already existed and are intended to remove the doubts. We have pressed the said two Rules into service only for the purpose of reinforcing the conclusion which we have already arrived at de hors the said amendment in Rules. 35. The case of State of Orissa vs. Steel Authority of India Ltd. (supra), which was relied on by the High Court and by the learned counsel for the respondents before us is distinguishable. There the question arose as to the charge of royalty on dolomite and limestone dealt with by Entries 15 and 26 respectively of the Second Schedule. Both these minerals were utilized as raw material by the mining lessees on the leased area itself. The mining lessee claimed that dolomite and limestone having been extracted from the mine underwent processing wherein a part of the mineral was wasted and the wastage remained on the leased area and not removed therefrom. The contention of the lessee was that royalty could not be demanded on that portion of the wastage which was not removed from the mining area. This contention was repelled by this Court by reference to Section 9(1) of the Act which speaks of payment of royalty in respect of any mineral removed or consumed by the lessee. The Court held that though the impurities part of dolomite and limestone was not removed from the leased area but that would not make any difference as the run-of-mine was itself consumed in the processing on the leased area. 36. Entry 15 levies royalty on tonnage basis on the dolomite itself so also Entry 26 levies royalty on limestone itself as run-of-mine though two different rates are prescribed depending on the grade or percentage of silica content in the limestone. The scheme of those two entries is different from the scheme of Entry 23 dealing with iron ore. As no rate of royalty has been prescribed in the Second Schedule to be charged on slimes and also no rate of royalty has been prescribed or iron ore as run-of-mine, royalty cannot be charged on the wastage.37. Our answers to the questions framed in the earlier part of this judgment are:(i) Slime or slimes is a term well understood in mining industry and trade. It is different from fines and concentrates - the term as used in the Second Schedule, Entry-23 of this Act;(ii) Slime or slimes cannot be included in fines or concentrates for the purpose of charging royalty under Section 9(1) read with Entry-23 of the Second Schedule of the Act.
### Response:
1
### Explanation:
the word may have.29. It is clear that in iron or production the run of mine (ROM) is in a very crude form. A lot of waste material called impurities accompanies the iron ore. The ore has to be upgraded. Upgrading the ores is called beneficiation. That saves the cost of transportation. Different processes have been developed by science and technology and accepted and adopted in different iron ore projects for the purpose of beneficiation. In the processes, a stage is reached which yields concentrates. They are treated in the concentrate plant by resort to physical, chemical and / or electrical methods. The valuable constituents are retained and what is discarded as tailings or slimes is something of no commercial value, being just impurities consisting of unusable materials. Concentrates is not necessarily a stage reached in all the processes. Concentrates consist of enriched ore segregated from waste in concentration plant. It is a substance of intensified strength having been purified by removal of valueless mud, slurry, impurities and waste. Wet processing (at a stage after fines have already been won) separates extremely fine particles, grains or fragments of ore which are too poor to be treated any further and have to be flown for being consigned to tail bonds as waste separated from concentrates. From concentrates iron can yet be won. Concentrates differ from slimes are to be found as such not in concentration plant but only in tail pond. What reaches tailing dam or pond is slurry. Solid particles are deposited and clean water overflows. This processing is done to prevent pollution and to protect environment. There are ferrous contents in the slurry but that is a total waste. Inasmuch as, and undisputedly, by any process or technique known to science and technology till this date, winning of ferrous contents from out of the slurry is commercial unviable. The slimes are accepted by the mother Earth once again to be dissolved in itsdone so the Parliament has not saidfines including slimes. Though slimes are not fines the Parliament could have assigned an artificial or extended meaning to fines for the purpose of levy of Royalty which it has chosen not to do. It is clearly suggestive of its intention not to take into consideration slimes for quantifying the amount of royalty. This deliberate omission of Parliament cannot be made good by interpretative process so as to charge royalty on slimes by reading Section 9 of the Act divorced from the provisions of the Second Schedule. Even if slimes were to be held liable to charge of royalty, the question would still have remained at what rate and on what quantity, which questions cannot be answered by Section 9.Though the objects and reasons which prompted the abovesaid amendment are not known to us (none placed for consideration by any of the parties) in all probability the same seems to have been prompted by the pronouncement of this Court in State of Orissa vs. Steel Authority of India Ltd. (supra). Be that as it may, the abovesaid Rules also suggest the intention of the Government that dumped tailings or rejects (or in other words slimes) are to be treated as a separated head and charge of royalty therein is not to be made as a matter of course. Dumped tailings or rejects may be liable to payment of royalty if only they are sold or consumed. Rulesare general in nature, applicable to all types of minerals. There are several other entries in the Second Schedule where a mineral is liable to royalty on tonnage basis no sooner extracted and as(ROM). Such entries do not further classify the mineral by reference to its constituents. The case of iron ore is different. So far as the iron ore is concerned, the provisions of the Section 9 of the Act read with Entry 23 of the Second Schedule and the abovesaid Rules homogeneously construed do not subject the run of mine (ROM) to payment of royalty. The Second Schedule does not prescribe any rate of royalty on the iron ore asand the levy of royalty has to be postponed until the processing has been done and the quantity of lumps, fines and concentrates (none of which will include slimes) has been found out on the availability of which data alone the royalty is capable of being quantified. Under the Second Schedule, the slimes which have come into existence shall have to be excluded from the charge of royalty.34. S/Shri S.K. Agnihotri and Prakash Shrivastava, the learned counsel for the States of Madhya Pradesh and Chhatisgarh submitted that the Ruleshave come to be framed on 25.9.2000 and cannot be applied retrospectively. We agree. There is no question of giving the abovesaid amendment in Rules a retrospective operation. These Rules only clarify the position as it already existed and are intended to remove the doubts. We have pressed the said two Rules into service only for the purpose of reinforcing the conclusion which we have already arrived at de hors the said amendment in Rules.Entry 15 levies royalty on tonnage basis on the dolomite itself so also Entry 26 levies royalty on limestone itself asthough two different rates are prescribed depending on the grade or percentage of silica content in the limestone. The scheme of those two entries is different from the scheme of Entry 23 dealing with iron ore. As no rate of royalty has been prescribed in the Second Schedule to be charged on slimes and also no rate of royalty has been prescribed or iron ore asroyalty cannot be charged on the wastage.37. Our answers to the questions framed in the earlier part of this judgment are:(i) Slime or slimes is a term well understood in mining industry and trade. It is different from fines and concentratesthe term as used in the Second Schedule,of this Act;(ii) Slime or slimes cannot be included in fines or concentrates for the purpose of charging royalty under Section 9(1) read withof the Second Schedule of the Act.
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Shayona Pulp Conversion Mills Private Limited Vs. Commissioner of Income Tax and Others | section 239 of the Act the limitation period is given which is one year from the last date of the assessment year and revised returns were also required to be filed within one year. When such period of limitation is prescribed under the Act, the application was filed on 12-5-2009, many years after the expiry of the period prescribed for filing the claim.7. The learned counsel for the petitioner took this Court through the provision of Section 119(2)(b) of the Income Tax Act and submitted that when the Board has the power of issuing general or special order to authorise to admit application or claim for such relief, after the period specified by or under the Act, the Commissioner ought to have exercised such power and ought to have condoned the delay. It is already observed that the Commissioner has touched the merits of the claim also by referring some Circulars and instructions issued by the Board and has held that the benefit given under those Circulars and the instructions cannot be given in the present matter. Further, the reason given for the delay also is not acceptable. On the previous occasion also there was certificate of the C.A. and admittedly the petitioner had shown the aforesaid amount like remission in principal amount of the term loan in profit and loss account and the book profit of more than Rs. 64 lakh was shown. If the business loss can be carried forward, there was the opportunity for the petitioner if such entitlement continues to get the benefit of that provision in subsequent year also. But it appears that in the first return filed the book profit was shown and on that basis self assessment of the income tax was made. Though the merits cannot be considered in detail while deciding application for condonation of delay these things need to be considered to ascertain as to whether there is arguable prima facie case in favour of the applicant. That point is not considered in detail and there is no need to do it in the present proceeding also.8. The provision section 119(2)(b) runs as under :"119. Instructions to subordinate authorities. (1) . . . .(2) Without prejudice to the generality of the foregoing power, --(a) . . . .(b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case of class of cases, by general or special order, authorise any income-tax-authority, not being a Commissioner (Appeals) to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law."9. The order issued by the Board by exercising this power dated 26-20-1993 is on the record and it shows that it is applicable to the excess tax deducted at source, collected at source and payment of advance tax made under the provisions of Chapters XVII-B, XVII-BB and XVII-C respectively and the amount of refund does not exceed Rs. one lakh for any assessment year. Thus, the self assessment was not included in this order issued by the Board. It appears that subsequently on 9-6-2015 order came to be issued by the Board in which the category of self assessment tax was included in the order which can be made by the Board under section 119(2)(b) of the Income Tax Act. Thus, the order came in existence subsequently and the Commissioner had no power to condone delay on the date when the order was made on the application filed by the present petitioner.10. The learned counsel for the petitioner placed reliance on some observations made by the Division Bench of this Court at Principal Seat in Writ Petition No.3087/2006 (Artist Tree Pvt. Ltd. v. Central Board of Direct Taxes and Others). The application in that matter was filed on 7-4-2002 and it was the matter of tax deducted at source. Thus, the observations made in that case can be of no use in the present matter. Reliance was placed on the observations made by Punjab & Haryana High Court in the case reported as (2005) 1 RCR (Criminal) 591 (Jaswant Singh Bambha v. Central Board of Direct Taxes And Others). Reliance is also placed on the case reported as 2010 (Supp.) Bom.C.R. 196 (Sitaldas K. Motwani v. Director General of Income Tax & Ors). On the basis of the observations made in these cases it was submitted for the petitioner that there is power with the Board to issue such instructions or order and so the Commissioner ought to have condoned the delay. On this point, learned counsel for the respondent, Department, placed reliance on some observations made by the Apex Court in the cases reported as (1) 2008 AIR SCW 1461 (Singh Enterprises v. Commissioner of Central Excise, Jamshedpur); and, (2) (2009) 5 SCC 791 (Commissioner of Customs and Central Excise v. Hongo India (P) Ltd.) The cases of Apex Court are altogether on different points and provisions of different law were involved in those matters. Whenever there is special provision in special enactment fixing the period of limitation even the Court cannot extend that period and the provision of section 5 of the Limitation Act cannot be applied in those cases. There cannot be dispute over that proposition. In the present matter, due to the provision like section 119(2)(b) made in the Income Tax Act, it can be said that discretionary power is given to the Board to issue such instructions and only after that the assessing authority can use such power. As in the past, at the time when the claim of the petitioner was considered, there was no such instruction or order from the Board, in the present matter such benefit cannot be given to the petitioner. Thus, no case is made out for interference in the order made by the Commissioner of Income Tax. | 0[ds]On the basis of the observations made in these cases it was submitted for the petitioner that there is power with the Board to issue such instructions or order and so the Commissioner ought to have condoned the delay. On this point, learned counsel for the respondent, Department, placed reliance on some observations made by the Apex Court in the cases reported as (1) 2008 AIR SCW 1461 (Singh Enterprises v. Commissioner of Central Excise, Jamshedpur); and, (2) (2009) 5 SCC 791 (Commissioner of Customs and Central Excise v. Hongo India (P) Ltd.) The cases of Apex Court are altogether on different points and provisions of different law were involved in those matters. Whenever there is special provision in special enactment fixing the period of limitation even the Court cannot extend that period and the provision of section 5 of the Limitation Act cannot be applied in those cases. There cannot be dispute over that proposition. In the present matter, due to the provision like section 119(2)(b) made in the Income Tax Act, it can be said that discretionary power is given to the Board to issue such instructions and only after that the assessing authority can use such power. As in the past, at the time when the claim of the petitioner was considered, there was no such instruction or order from the Board, in the present matter such benefit cannot be given to the petitioner. Thus, no case is made out for interference in the order made by the Commissioner of Income Tax. | 0 | 1,887 | 300 | ### 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:
section 239 of the Act the limitation period is given which is one year from the last date of the assessment year and revised returns were also required to be filed within one year. When such period of limitation is prescribed under the Act, the application was filed on 12-5-2009, many years after the expiry of the period prescribed for filing the claim.7. The learned counsel for the petitioner took this Court through the provision of Section 119(2)(b) of the Income Tax Act and submitted that when the Board has the power of issuing general or special order to authorise to admit application or claim for such relief, after the period specified by or under the Act, the Commissioner ought to have exercised such power and ought to have condoned the delay. It is already observed that the Commissioner has touched the merits of the claim also by referring some Circulars and instructions issued by the Board and has held that the benefit given under those Circulars and the instructions cannot be given in the present matter. Further, the reason given for the delay also is not acceptable. On the previous occasion also there was certificate of the C.A. and admittedly the petitioner had shown the aforesaid amount like remission in principal amount of the term loan in profit and loss account and the book profit of more than Rs. 64 lakh was shown. If the business loss can be carried forward, there was the opportunity for the petitioner if such entitlement continues to get the benefit of that provision in subsequent year also. But it appears that in the first return filed the book profit was shown and on that basis self assessment of the income tax was made. Though the merits cannot be considered in detail while deciding application for condonation of delay these things need to be considered to ascertain as to whether there is arguable prima facie case in favour of the applicant. That point is not considered in detail and there is no need to do it in the present proceeding also.8. The provision section 119(2)(b) runs as under :"119. Instructions to subordinate authorities. (1) . . . .(2) Without prejudice to the generality of the foregoing power, --(a) . . . .(b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case of class of cases, by general or special order, authorise any income-tax-authority, not being a Commissioner (Appeals) to admit an application or claim for any exemption, deduction, refund or any other relief under this Act after the expiry of the period specified by or under this Act for making such application or claim and deal with the same on merits in accordance with law."9. The order issued by the Board by exercising this power dated 26-20-1993 is on the record and it shows that it is applicable to the excess tax deducted at source, collected at source and payment of advance tax made under the provisions of Chapters XVII-B, XVII-BB and XVII-C respectively and the amount of refund does not exceed Rs. one lakh for any assessment year. Thus, the self assessment was not included in this order issued by the Board. It appears that subsequently on 9-6-2015 order came to be issued by the Board in which the category of self assessment tax was included in the order which can be made by the Board under section 119(2)(b) of the Income Tax Act. Thus, the order came in existence subsequently and the Commissioner had no power to condone delay on the date when the order was made on the application filed by the present petitioner.10. The learned counsel for the petitioner placed reliance on some observations made by the Division Bench of this Court at Principal Seat in Writ Petition No.3087/2006 (Artist Tree Pvt. Ltd. v. Central Board of Direct Taxes and Others). The application in that matter was filed on 7-4-2002 and it was the matter of tax deducted at source. Thus, the observations made in that case can be of no use in the present matter. Reliance was placed on the observations made by Punjab & Haryana High Court in the case reported as (2005) 1 RCR (Criminal) 591 (Jaswant Singh Bambha v. Central Board of Direct Taxes And Others). Reliance is also placed on the case reported as 2010 (Supp.) Bom.C.R. 196 (Sitaldas K. Motwani v. Director General of Income Tax & Ors). On the basis of the observations made in these cases it was submitted for the petitioner that there is power with the Board to issue such instructions or order and so the Commissioner ought to have condoned the delay. On this point, learned counsel for the respondent, Department, placed reliance on some observations made by the Apex Court in the cases reported as (1) 2008 AIR SCW 1461 (Singh Enterprises v. Commissioner of Central Excise, Jamshedpur); and, (2) (2009) 5 SCC 791 (Commissioner of Customs and Central Excise v. Hongo India (P) Ltd.) The cases of Apex Court are altogether on different points and provisions of different law were involved in those matters. Whenever there is special provision in special enactment fixing the period of limitation even the Court cannot extend that period and the provision of section 5 of the Limitation Act cannot be applied in those cases. There cannot be dispute over that proposition. In the present matter, due to the provision like section 119(2)(b) made in the Income Tax Act, it can be said that discretionary power is given to the Board to issue such instructions and only after that the assessing authority can use such power. As in the past, at the time when the claim of the petitioner was considered, there was no such instruction or order from the Board, in the present matter such benefit cannot be given to the petitioner. Thus, no case is made out for interference in the order made by the Commissioner of Income Tax.
### Response:
0
### Explanation:
On the basis of the observations made in these cases it was submitted for the petitioner that there is power with the Board to issue such instructions or order and so the Commissioner ought to have condoned the delay. On this point, learned counsel for the respondent, Department, placed reliance on some observations made by the Apex Court in the cases reported as (1) 2008 AIR SCW 1461 (Singh Enterprises v. Commissioner of Central Excise, Jamshedpur); and, (2) (2009) 5 SCC 791 (Commissioner of Customs and Central Excise v. Hongo India (P) Ltd.) The cases of Apex Court are altogether on different points and provisions of different law were involved in those matters. Whenever there is special provision in special enactment fixing the period of limitation even the Court cannot extend that period and the provision of section 5 of the Limitation Act cannot be applied in those cases. There cannot be dispute over that proposition. In the present matter, due to the provision like section 119(2)(b) made in the Income Tax Act, it can be said that discretionary power is given to the Board to issue such instructions and only after that the assessing authority can use such power. As in the past, at the time when the claim of the petitioner was considered, there was no such instruction or order from the Board, in the present matter such benefit cannot be given to the petitioner. Thus, no case is made out for interference in the order made by the Commissioner of Income Tax.
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M/S. Sohan Lal And Company And Others Vs. Lt. Governor Of Delhi And Others Versus Lt. Governor Of Delhi And Others | 1. In 1967, initially, the appellants were allotted 605 sq. yards each as industrial sites by the Delhi Development Authority. The price demanded thereon was Rs 20 per sq. yard. The appellants were not satisfied with the extent of land allotted. They asked for more. On February 5, 1970, the appellants in Civil Appeal No. 392 were allotted 2020 sq. yards while the appellants in Civil Appeal No. 393 were allotted 2420 sq. yards. By the time the latter allotment was made, the rate for the land was enhanced from Rs 20 per sq. yard to Rs 57 per sq. yard. The appellants, however, were not asked to pay at the enhanced rate for the entire site, but they were given concession to pay at the rate of Rs 20 per sq. yard for 605 sq. yards and for the remaining area, they were asked to pay at the rate of Rs 57 per sq. yard. In spite of this concession, the appellants approached the Delhi High Court demanding that they were obliged to pay only at the rate of Rs 20 per sq. yard for the entire extent of land allotted to them. The High Court did not accept their claim 2. In these appeals, we have heard senior counsel Mr Narasimhamurthy for the appellants and Mr Kapil Sibal for the Delhi Development Authority. It seems to us that the claim of the appellants is wholly misconceived. The actual allotment of the industrial sites were made to the appellants on February 5, 1970 and they took possession only on December 9, 1970. The rate prevalent on that date was Rs 57 per sq. yard. In fact, the DDA would have been justified in demanding the rate of Rs 57 for the entire extent of land allotted. The DDA, however, gave the concession which has been unduly taken advantage of by the appellants for these litigations. We do not think that the claim of the appellants is either justified in law or in equity. They have been given concession which they were not legitimately entitled to. They had not taken possession of 605 sq. yards in 1967 when it was allotted to them. The possession of the land continued with the DDA till it was delivered to the appellants on September 12, 1970. We, therefore, do not see any merit in these appeals 3. Before parting with the case, we have to make a further order. This court on February 12, 1979, has stayed the recovery of the balance of price claimed by the DDA. It may be stated that the appellants have paid only at the rate of Rs 22 per sq. yard. The balance at the rate of Rs 35 per sq. yard remains payable. This Court has stayed the recovery of that balance upon furnishing the bank guarantee. The appellants have the benefit of the money due and payable to the DDA. The appellants, therefore, shall by interest at 10 per cent (ten per cent) on the said amount from the date it was due till payment | 0[ds]The actual allotment of the industrial sites were made to the appellants on February 5, 1970 and they took possession only on December 9, 1970. The rate prevalent on that date was Rs 57 per sq. yard. In fact, the DDA would have been justified in demanding the rate of Rs 57 for the entire extent of land allotted. The DDA, however, gave the concession which has been unduly taken advantage of by the appellants for these litigations. We do not think that the claim of the appellants is either justified in law or in equity. They have been given concession which they were not legitimately entitled to. They had not taken possession of 605 sq. yards in 1967 when it was allotted to them. The possession of the land continued with the DDA till it was delivered to the appellants on September 12, 1970. We, therefore, do not see any merit in these appeals3. Before parting with the case, we have to make a further order. This court on February 12, 1979, has stayed the recovery of the balance of price claimed by the DDA. It may be stated that the appellants have paid only at the rate of Rs 22 per sq. yard. The balance at the rate of Rs 35 per sq. yard remains payable. This Court has stayed the recovery of that balance upon furnishing the bank guarantee. The appellants have the benefit of the money due and payable to the DDA. The appellants, therefore, shall by interest at 10 per cent (ten per cent) on the said amount from the date it was due till payment | 0 | 579 | 309 | ### 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:
1. In 1967, initially, the appellants were allotted 605 sq. yards each as industrial sites by the Delhi Development Authority. The price demanded thereon was Rs 20 per sq. yard. The appellants were not satisfied with the extent of land allotted. They asked for more. On February 5, 1970, the appellants in Civil Appeal No. 392 were allotted 2020 sq. yards while the appellants in Civil Appeal No. 393 were allotted 2420 sq. yards. By the time the latter allotment was made, the rate for the land was enhanced from Rs 20 per sq. yard to Rs 57 per sq. yard. The appellants, however, were not asked to pay at the enhanced rate for the entire site, but they were given concession to pay at the rate of Rs 20 per sq. yard for 605 sq. yards and for the remaining area, they were asked to pay at the rate of Rs 57 per sq. yard. In spite of this concession, the appellants approached the Delhi High Court demanding that they were obliged to pay only at the rate of Rs 20 per sq. yard for the entire extent of land allotted to them. The High Court did not accept their claim 2. In these appeals, we have heard senior counsel Mr Narasimhamurthy for the appellants and Mr Kapil Sibal for the Delhi Development Authority. It seems to us that the claim of the appellants is wholly misconceived. The actual allotment of the industrial sites were made to the appellants on February 5, 1970 and they took possession only on December 9, 1970. The rate prevalent on that date was Rs 57 per sq. yard. In fact, the DDA would have been justified in demanding the rate of Rs 57 for the entire extent of land allotted. The DDA, however, gave the concession which has been unduly taken advantage of by the appellants for these litigations. We do not think that the claim of the appellants is either justified in law or in equity. They have been given concession which they were not legitimately entitled to. They had not taken possession of 605 sq. yards in 1967 when it was allotted to them. The possession of the land continued with the DDA till it was delivered to the appellants on September 12, 1970. We, therefore, do not see any merit in these appeals 3. Before parting with the case, we have to make a further order. This court on February 12, 1979, has stayed the recovery of the balance of price claimed by the DDA. It may be stated that the appellants have paid only at the rate of Rs 22 per sq. yard. The balance at the rate of Rs 35 per sq. yard remains payable. This Court has stayed the recovery of that balance upon furnishing the bank guarantee. The appellants have the benefit of the money due and payable to the DDA. The appellants, therefore, shall by interest at 10 per cent (ten per cent) on the said amount from the date it was due till payment
### Response:
0
### Explanation:
The actual allotment of the industrial sites were made to the appellants on February 5, 1970 and they took possession only on December 9, 1970. The rate prevalent on that date was Rs 57 per sq. yard. In fact, the DDA would have been justified in demanding the rate of Rs 57 for the entire extent of land allotted. The DDA, however, gave the concession which has been unduly taken advantage of by the appellants for these litigations. We do not think that the claim of the appellants is either justified in law or in equity. They have been given concession which they were not legitimately entitled to. They had not taken possession of 605 sq. yards in 1967 when it was allotted to them. The possession of the land continued with the DDA till it was delivered to the appellants on September 12, 1970. We, therefore, do not see any merit in these appeals3. Before parting with the case, we have to make a further order. This court on February 12, 1979, has stayed the recovery of the balance of price claimed by the DDA. It may be stated that the appellants have paid only at the rate of Rs 22 per sq. yard. The balance at the rate of Rs 35 per sq. yard remains payable. This Court has stayed the recovery of that balance upon furnishing the bank guarantee. The appellants have the benefit of the money due and payable to the DDA. The appellants, therefore, shall by interest at 10 per cent (ten per cent) on the said amount from the date it was due till payment
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State Bank of India Vs. Parkash Chand Mehra | per month; and on transfer to Amritsar- a class II area, in consideration of his length of service, he was given three increments and his salary was fixed at Rs. 133 per month. The Respondents case is that he was entitled to three increments over Rs. 126 which it is said he was drawing at Abohar, that is Rs.148 per month. As this claim was rejected by the Bank authorities he made as application under Ss.33 (b) determining the money payable under the Award. The Labour Court, Delhi accepted the respondents case that his pay should have been fixed at Rs.148 per month. 2. To determine the correctness of the Tribunal decision it is necessary first to see what the respondents pay would be at Abohar, on the basis that Abohar was a class IV area at the time of his transfer to Amirtsar, and what his salary would be under the modified Award at Amirtsar. We have to ascertain then, first the basic pay on January 31, 1950. The clauses of the Award which require consideration may be set out here conveniently:- (1) The workmens basic pay as on 31st January, 1950, shall not be reduced in any case. (2) subject to rule (1) the adjusted basic pay in the new scale shall not exceed what point to point adjustment would give him or the maximum in the new scale. (3) In the matter of adjustment all efficiency bars, whether in the previously existing scales or in the new scales fixed by the award should be ignored. (4) subject to rules (I) and (3) a workmans basic pay in the new scale shall be fixed in the following manner :- (a) A workman shall first be fitted into the scale of pay fixed by the said award, (hereinafter called the new scale) by placing him at the stage in the new scale equal to, or next above, is basic pay as on 31st January, 1950 in the present scale then in force (herein called the existing scale). (b) To the basic pay into which he is fitted under clause (a)the annual increment or increments in the new scale as from that stage onwards should be added at the rate of one increment for every completed three years of service in the same cadre as on 31st January 1950, up to a limit of twelve years service; thereafter one increment for every four years of service upto another eight years service, and after at one increment for every five years of service. (4A) After adjustments are made in accordance with the directions given, three further annual increments in the new scale will be added thereto for service for the three years 1951 to 1953. In addition, the workman will be entitled to draw his normal increment for1954 on the 1st of April, 1954. Thereafter each succeeding years annual increment shall take effect as and from the 1st April of that year. 3. We have therefore first to fix the basic pay in accordance with Rule 4(a), and then a low annual increments in accordance with R. 4(b). But this is subject to Rules 1 and 2 above. We are unable to accept the contention raised on behalf of the respondent that the words subject to have not the effect of making what would otherwise follow from the application of Rules 4(a) and (b) subject to both the limits laid down in R. 2. Giving as we must, natural meaning to the words used in Rules 2 and 4, we are of opinion that in no case can the basic pay be fixed at a higher figure than what the point to point adjustment would give to the workmen or the maximum in the new scale. Under Rule 4(a) the workmans basic pay is Rs. 90; and under Rule 4(b) to this basic pay has to be added two increments in respect of the new scale so that the basic pay would become fixed, apart from the limitation of Rule 2, at Rs. l00 .If that were correct the salary would be Rs, 126 on April 1, 1954. There is however the limitation introduced by R. 2 which is made applicable to the fixation of the basic pay under Rule 4 by the words subject to Rules, 1, to 3. Admittedly, point to point adjustment would give the respondent a basic pay of Rs. 90. This limit cannot therefore be exceeded; and so, in spite of Rule 4(b), the basic pay for applying the new scale, would be Rs. 90 and not Rs. 100. The consequence of this is that the pay to which he would be entitled, at the time of the transfer was Rs. l12; on transfer to a class II area he would get three increments to give him the benefit of the higher area scale corresponding to the length of service, and his pay would be Rs. 133. 4. Abohar it may be mentioned was treated as a class III area with retrospective effect from April 1, 1954; calculations on that basis would however give the same result. For, while the salary on January 31, 1950, would on that basis be fixed at Rs. l00 the salary at Abohar would increase to Rs. 126 on April 1,1954 and on transfer from that class III area to Amritsar-a class II area he will get one increment and his salary and would be fixed at Rs, 133. 5. It appears that there was some confusion in statements made on behalf of the Bank by the Banks witness Vishnoi. That however cannot alter the position as found above that on a correct application of the Bank Award the respondent was entitled to have his pay fixed at Rs. 133 per month and not Rs, 148 per month on his transfer to Amritsar. The decision of the Labour Court that he was entitled to have his pay fixed at Rs. 148/- per month on his transfer to Amritsar is clearly wrong. | 1[ds]3. We have therefore first to fix the basic pay in accordance with Rule 4(a), and then a low annual increments in accordance with R. 4(b). But this is subject to Rules 1 and 2 above. We are unable to accept the contention raised on behalf of the respondent that the words subject to have not the effect of making what would otherwise follow from the application of Rules 4(a) and (b) subject to both the limits laid down in R. 2. Giving as we must, natural meaning to the words used in Rules 2 and 4, we are of opinion that in no case can the basic pay be fixed at a higher figure than what the point to point adjustment would give to the workmen or the maximum in the new scale. Under Rule 4(a) the workmans basic pay is Rs. 90; and under Rule 4(b) to this basic pay has to be added two increments in respect of the new scale so that the basic pay would become fixed, apart from the limitation of Rule 2, at Rs. l00 .If that were correct the salary would be Rs, 126 on April 1, 1954. There is however the limitation introduced by R. 2 which is made applicable to the fixation of the basic pay under Rule 4 by the words subject to Rules, 1, to 3. Admittedly, point to point adjustment would give the respondent a basic pay of Rs. 90. This limit cannot therefore be exceeded; and so, in spite of Rule 4(b), the basic pay for applying the new scale, would be Rs. 90 and not Rs. 100. The consequence of this is that the pay to which he would be entitled, at the time of the transfer was Rs. l12; on transfer to a class II area he would get three increments to give him the benefit of the higher area scale corresponding to the length of service, and his pay would be Rs. 1335. It appears that there was some confusion in statements made on behalf of the Bank by the Banks witness Vishnoi. That however cannot alter the position as found above that on a correct application of the Bank Award the respondent was entitled to have his pay fixed at Rs. 133 per month and not Rs, 148 per month on his transfer to Amritsar. The decision of the Labour Court that he was entitled to have his pay fixed at Rs. 148/per month on his transfer to Amritsar is clearly wrong. | 1 | 1,300 | 487 | ### 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:
per month; and on transfer to Amritsar- a class II area, in consideration of his length of service, he was given three increments and his salary was fixed at Rs. 133 per month. The Respondents case is that he was entitled to three increments over Rs. 126 which it is said he was drawing at Abohar, that is Rs.148 per month. As this claim was rejected by the Bank authorities he made as application under Ss.33 (b) determining the money payable under the Award. The Labour Court, Delhi accepted the respondents case that his pay should have been fixed at Rs.148 per month. 2. To determine the correctness of the Tribunal decision it is necessary first to see what the respondents pay would be at Abohar, on the basis that Abohar was a class IV area at the time of his transfer to Amirtsar, and what his salary would be under the modified Award at Amirtsar. We have to ascertain then, first the basic pay on January 31, 1950. The clauses of the Award which require consideration may be set out here conveniently:- (1) The workmens basic pay as on 31st January, 1950, shall not be reduced in any case. (2) subject to rule (1) the adjusted basic pay in the new scale shall not exceed what point to point adjustment would give him or the maximum in the new scale. (3) In the matter of adjustment all efficiency bars, whether in the previously existing scales or in the new scales fixed by the award should be ignored. (4) subject to rules (I) and (3) a workmans basic pay in the new scale shall be fixed in the following manner :- (a) A workman shall first be fitted into the scale of pay fixed by the said award, (hereinafter called the new scale) by placing him at the stage in the new scale equal to, or next above, is basic pay as on 31st January, 1950 in the present scale then in force (herein called the existing scale). (b) To the basic pay into which he is fitted under clause (a)the annual increment or increments in the new scale as from that stage onwards should be added at the rate of one increment for every completed three years of service in the same cadre as on 31st January 1950, up to a limit of twelve years service; thereafter one increment for every four years of service upto another eight years service, and after at one increment for every five years of service. (4A) After adjustments are made in accordance with the directions given, three further annual increments in the new scale will be added thereto for service for the three years 1951 to 1953. In addition, the workman will be entitled to draw his normal increment for1954 on the 1st of April, 1954. Thereafter each succeeding years annual increment shall take effect as and from the 1st April of that year. 3. We have therefore first to fix the basic pay in accordance with Rule 4(a), and then a low annual increments in accordance with R. 4(b). But this is subject to Rules 1 and 2 above. We are unable to accept the contention raised on behalf of the respondent that the words subject to have not the effect of making what would otherwise follow from the application of Rules 4(a) and (b) subject to both the limits laid down in R. 2. Giving as we must, natural meaning to the words used in Rules 2 and 4, we are of opinion that in no case can the basic pay be fixed at a higher figure than what the point to point adjustment would give to the workmen or the maximum in the new scale. Under Rule 4(a) the workmans basic pay is Rs. 90; and under Rule 4(b) to this basic pay has to be added two increments in respect of the new scale so that the basic pay would become fixed, apart from the limitation of Rule 2, at Rs. l00 .If that were correct the salary would be Rs, 126 on April 1, 1954. There is however the limitation introduced by R. 2 which is made applicable to the fixation of the basic pay under Rule 4 by the words subject to Rules, 1, to 3. Admittedly, point to point adjustment would give the respondent a basic pay of Rs. 90. This limit cannot therefore be exceeded; and so, in spite of Rule 4(b), the basic pay for applying the new scale, would be Rs. 90 and not Rs. 100. The consequence of this is that the pay to which he would be entitled, at the time of the transfer was Rs. l12; on transfer to a class II area he would get three increments to give him the benefit of the higher area scale corresponding to the length of service, and his pay would be Rs. 133. 4. Abohar it may be mentioned was treated as a class III area with retrospective effect from April 1, 1954; calculations on that basis would however give the same result. For, while the salary on January 31, 1950, would on that basis be fixed at Rs. l00 the salary at Abohar would increase to Rs. 126 on April 1,1954 and on transfer from that class III area to Amritsar-a class II area he will get one increment and his salary and would be fixed at Rs, 133. 5. It appears that there was some confusion in statements made on behalf of the Bank by the Banks witness Vishnoi. That however cannot alter the position as found above that on a correct application of the Bank Award the respondent was entitled to have his pay fixed at Rs. 133 per month and not Rs, 148 per month on his transfer to Amritsar. The decision of the Labour Court that he was entitled to have his pay fixed at Rs. 148/- per month on his transfer to Amritsar is clearly wrong.
### Response:
1
### Explanation:
3. We have therefore first to fix the basic pay in accordance with Rule 4(a), and then a low annual increments in accordance with R. 4(b). But this is subject to Rules 1 and 2 above. We are unable to accept the contention raised on behalf of the respondent that the words subject to have not the effect of making what would otherwise follow from the application of Rules 4(a) and (b) subject to both the limits laid down in R. 2. Giving as we must, natural meaning to the words used in Rules 2 and 4, we are of opinion that in no case can the basic pay be fixed at a higher figure than what the point to point adjustment would give to the workmen or the maximum in the new scale. Under Rule 4(a) the workmans basic pay is Rs. 90; and under Rule 4(b) to this basic pay has to be added two increments in respect of the new scale so that the basic pay would become fixed, apart from the limitation of Rule 2, at Rs. l00 .If that were correct the salary would be Rs, 126 on April 1, 1954. There is however the limitation introduced by R. 2 which is made applicable to the fixation of the basic pay under Rule 4 by the words subject to Rules, 1, to 3. Admittedly, point to point adjustment would give the respondent a basic pay of Rs. 90. This limit cannot therefore be exceeded; and so, in spite of Rule 4(b), the basic pay for applying the new scale, would be Rs. 90 and not Rs. 100. The consequence of this is that the pay to which he would be entitled, at the time of the transfer was Rs. l12; on transfer to a class II area he would get three increments to give him the benefit of the higher area scale corresponding to the length of service, and his pay would be Rs. 1335. It appears that there was some confusion in statements made on behalf of the Bank by the Banks witness Vishnoi. That however cannot alter the position as found above that on a correct application of the Bank Award the respondent was entitled to have his pay fixed at Rs. 133 per month and not Rs, 148 per month on his transfer to Amritsar. The decision of the Labour Court that he was entitled to have his pay fixed at Rs. 148/per month on his transfer to Amritsar is clearly wrong.
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RAJASTHAN CYLINDERS AND CONTAINERS LIMITED Vs. U.O.I AND ANR | of United States in Monsanto Co. v. Spray-Rite Service Corp. 17 is relevant and is reproduced hereunder: 16 17 The correct standard is that there must be evidence that tends to exclude the possibility that the manufacturer and non-terminated distributors were acting independently. That is, there must be direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objective. 99. This test was reiterated by the Supreme Court of United States in Matsushita v. Zenith Ratio Corp. : …..But antitrust law limits the range of permissible inferences from ambiguous evidence in a 1 case. Thus, in Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (1984), we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Id., at 764. See also Cities Service, supra, at 280. To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of 1 must present evidence that tends to exclude the possibility that the alleged conspirators acted independently. 465 U.S., at 764 ……. …...petitioners had no motive to enter into the alleged conspiracy. To the contrary, as presumably rational businesses, petitioners had every incentive not to engage in the conduct with which they are charged, for its likely effect would be to generate losses for petitioners with no corresponding gains. Cf. Cities Service, 391 U.S., at 279 . The Court of Appeals did not take account of the absence of a plausible motive to enter into the alleged predatory pricing conspiracy. It focused instead on whether there was direct evidence of concert of action. 723 F.2d, at 304. The Court of Appeals erred in two respects: (i) the direct evidence on which the court relied had little, if any, relevance to the alleged predatory pricing conspiracy; and (ii) the court failed to consider the absence of a plausible motive to engage in predatory pricing….. xxx xxx xxx Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if petitioners had no rational economic motive to conspire, and if their conduct is consistent with other, equally plausible explanations, [475 U.S. 574, 597] the conduct does not give rise to an inference of conspiracy. See Cities Service, supra, at 278-280. 100. Similarly, in Bell Atlantic Corp v. Twombly , the U.S. Supreme Court held as under: 1-3] Because §1 of the Sherman Act does not prohibit [all] unreasonable restraints of trade … but only restraints effected by a contract, combination, or conspiracy, Copperweld Corp. v. Independence Tube Corp.,467 U.S. 752,775(1984) , [t]he crucial question is whether the challenged anticompetitive conduct stem[s] from independent decision or from an agreement, tacit or express, Theatre Enterprises, 346 U. S., at 540. While a showing of parallel business behavior is admissible circumstantial evidence from which the fact finder may infer agreement, it falls short of conclusively establishing agreement or … itself constituting a Sherman Act offense. Id., at 540–541. Even conscious parallelism, a common reaction of firms in a concentrated market [that] recogniz[e] their shared economic interests and their interdependence with respect to price and output decisions is not in itself unlawful. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 227 (1993) ; see 6 P. Areeda & H. Hovenkamp, Antitrust Law ¶1433a, p. 236 (2d ed. 2003) (hereinafter Areeda & Hovenkamp) ( The courts are nearly unanimous in saying that mere interdependent parallelism does not establish the contract, combination, or conspiracy required by Sherman Act §1 ); Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75Harv. L. Rev. 655, 672 (1962) ( [M]ere interdependence of basic price decisions is not conspiracy). [4-6] The inadequacy of showing parallel conduct or interdependence, without more, mirrors the ambiguity of the behavior: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market. See, e.g., AEI-Brookings Joint Center for Regulatory Studies, Epstein, Motions to Dismiss Antitrust Cases: Separating Fact from Fantasy, Related 19 Publication 06–08, pp. 3–4 (2006) (discussing problem of false positives in §1 suits). Accordingly, we have previously hedged against false inferences from identical behavior at a number of points in the trial sequence. An antitrust conspiracy plaintiff with evidence showing nothing beyond parallel conduct is not entitled to a directed verdict, see Theatre Enterprises, supra; proof of a §1 conspiracy must include evidence tending to exclude the possibility of independent action, see Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752 (1984); and at the summary judgment stage a §1 plaintiffs offer of conspiracy evidence must tend to rule out the possibility that the defendants were acting independently, see Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574(1986). 101. After taking note of the test that needs to be applied in such cases, which was laid down in Dyestuffs and accepted in Excel Crop Care Limited, we come to the conclusion that the inferences drawn by the CCI on the basis of evidence collected by it are duly rebutted by the appellants and the appellants have been able to discharge the onus that shifted upon them on the basis of factors pointed out by the CCI. However, at that stage, the CCI failed to carry the matter further by having required and necessary inquiry that was needed in the instant case. 102. We are emphasising here that in such a watertight tender policy of IOCL which gave IOCL full control over the tendering process, it was necessary to summon IOCL. This would have cleared many aspects which are shrouded in mystery and the dust has not been cleared. 103. We, thus, arrive at a conclusion that there is no sufficient evidence to hold that there was any agreement between the appellants for bid rigging. | 1[ds]Though the expression collusive bidding is not defined in the Act, it appears that both bid rigging and collusive bidding are overlapping concepts. This position stands accepted in Excel Crop Care Limited case which should be found from the following discussion therefrom:38. Mr Neeraj Kishan Kaul, learned Additional Solicitor General, refuted the aforesaid submission with vehemence by urging that bid rigging and collusive bidding are not mutually exclusive and these are overlapping concepts. Illustratively, he referred to the findings of CCI, as approved by COMPAT, in the instant case itself to the effect that the appellants herein had manipulated the process of bidding on the ground that bids were submitted on9 collusively, which was only the beginning of theagreement between the parties and this continued through the opening of the price bids on9 and thereafter negotiations on9 when all the parties reduced their bids by same figure of Rs 2 to bring their bid down to Rs 386 per kg from Rs 388 per kg. From this example, he submitted that on9 there was a collusive bidding but with concerted negotiations on, in the continued process, it was rigging of the bid that was practiced by the appellants. We are inclined to agree with this pellucid submission of the learned Additional Solicitor GeneralThe first proposition of Ms. Divan, viz. there is no competition, has two facets. First, the legal one which concerns the jurisdiction of the CCI to deal with such matters and the other is factual, which is to be examined on the basis of facts in these cases. Insofar as the first component is concerned, having regard to the aforesaid scheme of the Act, we are not convinced with the argument of Ms. Madhavi Divan that there is no possibility of a competition in these cases and, therefore, CCI had no jurisdiction to carry out any such investigation. The scope and ambit of the provisions of Section 3 have been considered in detail in Excel Crop Care Limited case. This Section prohibitsagreements and brings about the prime objective of the Competition Act. These aspects were noted in Excel Crop Care Limited, relevant portions whereof are already extracted above. We may also quote the following portion from the judgment of this Court in Steel Authority of India Limited wherein objective behind the Act was highlighted in the following manner:125. We have already noticed that the principal objects of the Act, in terms of its Preamble and the Statement of Objects and Reasons, are to eliminate practices having adverse effect on the competition, to promote and sustain competition in the market, to protect the interest of the consumers and ensure freedom of trade carried on by the participants in the market, in view of the economic developments in the country. In other words, the Act requires not only protection of free trade but also protection of consumer interest. The delay in disposal of cases, as well as undue continuation of interim restraint orders, can adversely and prejudicially affect the free economy of the country. Efforts to liberalise the Indian economy to bring it on a par with the best of the economies in this era of globalisation would be jeopardised ifd schedule and, in any case, expeditious disposal by the Commission is not adhered to. The scheme of various provisions of the Act which we have already referred to including Sections 26, 29, 30, 31,T and Regulations 12, 15, 16, 22, 32, 48 and 31 clearly show the legislative intent to ensured disposal of such mattersWe would like to reemphasise that the purpose of the Act is not only to illuminate practices having adverse effect on the competition but also to promote and sustain competition in the market. Enforcement provides remedies to avoid situation that will lead to decrease competition in the market. Therefore, effective enforcement is important not only to sanctionbut also to deter future competitive practices. In the present case itself, there are sixty suppliers of the product for which there are three buyers. After all, each supplier would like to beso that it is able to get order for larger quantities than the other. In this sense, there would be a competition among them. Further, it would also be in the interest of the buyers like IOCL etc. that the elements of healthy competition persists in the market. In any case, it is the duty of the CCI to ensure that the conditions which have tendency to kill the competition are to be curbed. It is also the function of the CCI to ensure that there is a competition so that benefits of such competition are reaped by the consumers. However, insofar as certain factual aspects highlighted by the appellants are concerned, they would be dealt with while examining the third proposition, as we deem it more appropriate to discuss these two aspects togetherFrom the aforesaid discussion, it is clear that as far as CCI is concerned, it has come to the conclusion that there was a cartelisation among the appellants herein and a concerted decision was taken to rig the bids which were submitted persuant to the tenders issued by IOCL. On the other hand, the appellants argue that there was no such agreement and even if the bids of many bidders were identical in nature, the bids were driven by market conditions. Their plea is that there was a situation of oligopsony and the modus which was adopted by IOCL in floating the tenders and awarding the contracts would show that the determination of price was entirely within the control of the IOCL. As per them, the way price was determined for supply of these cylinders, it had become an open secret known to everybody. Therefore, there was no question of any competition and no possibility of adversely affecting that competition by entering into any contractHowever, that is only one side of the coin. The aforesaid factors are to be analysed keeping in mind the ground realities that were prevailing, which are pointed out by the appellants. These attendant circumstances are argued in detail by the counsel for the appellants which have already been taken note of. We may recapitulate the same in brief hereinbelow:(i) In the present case there are only three buyers. Among them, IOCL is the biggest buyer with 48% market share. It is also a matter of record that all these appellants are manufacturers of 14.2 kg gas cylinders to the three buyers who are available in the market, nanely, IOCL, HPCL and BPCL. If these three buyers do not purchase from any of the appellants, that particular appellant would not be in a position to sell those cylinder to any other entity as there are no other buyers.(ii) There are only three buyers, it may not attract many to enter the field and manufacture these cylinders. It is because of limited number of buyers and for some reason if they do not purchase, the manufacturer would be nowhere. That may deter the persons to enter the field.(iii) The manner in which the tenders are floated by IOCL and the rates at which these are awarded, are an indicator that it is the IOCL which calls the shots insofar as price control is concerned. It has come in evidence that the IOCL undertakes the exercise of having its internal estimates about the cost of these cylinders. Their own expert arrived at a figue of Rs. 1106.61 paisa per cylinder. All the tenders which have been accepted are for a price lesser than the aforesaid estimate of IOCL itself. That apart, the modus adopted by the IOCL is that that final price is negotiated by it and the contract is not awarded at the rate quoted by bidder who turns out to be. Negotiations are held with such a bidder who iswhich generaly leads to further reduction of price than the one quoted by. Thereafter, the other bidders who may beetc. are awarded the contract at the rate at which it is awarded to. Thus, ultimately, all the bidders supply the goods at the same rate which is fixed by the IOCL after negotiating withbidder. The only difference is that bidder who iswould be able to receive the order for larger quantity thanmay get an order of more quantity than(iv) It has also come on record that there are very few suppliers. For the tender in question, there were 50 parties already in the fray and 12 new entrants were admitted. Number of 12, in such a scenario, cannot be treated as less. Therefore, the conclusion of CCI that the appellants ensured that there should not be entry of new entrant may not be correct.(v) Since there are not many manufacturers and supplies are needed by the three buyers on regular basis, IOCL ensures that all those manufacturers whose bids are technically viable, are given some order for the supply of specific cylinder. For this purpose, it has framed its broad policy as well. This also shows that control remains with IOCL. Thus, the appellants appear to be correct when they say that all the participants in the bidding process were awarded contracts in some State or the other which was aimed at ensuring a bigger pool of manufacturers so that the supply of this essential product is always maintained for the benefit of the general public. Had IOCL left some manufacturers empty handed, in all likelihood, they would have shut their shops. However, IOCL wanted all manufacturers to be in the fray in its own interest. Therefore, it was necessary to keep all parties afloat and this explains why all 50 parties obtained order along with 12 new entrants.(vi) There is another very relevant factor pointed out by the appellants, viz., the governmental control which is regulated by law. As pointed out above, it is not only the three oil companies which can supply LPG to domestic consumers in 14.2 kg LPG cylinders as mandated in the LPG (Regulation and Distribution) Order, 2000 which is issued under the provisions of Essential Commodities Act, 1955, even the price at which the LPG cylinder is to be supplied to the consumer is controlled by the Government. Following features of the aforesaid LPG Order, 2000, are significant:• The LPG suppliedin 14.2 kg gas cylinders is an essential commodity.• The distribution of LPG in 14.2 kgs cylinders takes place as part of a public distribution system defined under clause 2(1) of the Order asthe system of distribution, marketing or selling of liquefied petroleum gas by a Government Oil Company at the Government controlled or declared price through a distribution system approved by the Central or State Government• The price to the consumer is controlled by the Government.• The supply of LPG to domestic consumers shall be made only in 14.2 kg gas cylinders.• According to clauses 4 and 5 read with Schedule III of the LPG Order, parallel marketeers who supply and distribute LPG cylinders, may do so only for cylinders with size and specifications other than those specified in Schedule IIThe manner in which tendering process takes place would show that in such a competitive scenariao, the bid which the different bidder would be submitting becomes obvious. It has come on record that just a few days before the tender in question, another tender was floated by BPCL and on opening of the said tender the rates ofetc. came to be known. In a scenario like this, that obviously becomes a guiding factor for the bidders to submit their bidsWhen we keep in mind the aforesaid fact situation on the ground, those very factors on the basis of which the CCI has come to the conclusion that there was cartelization, in fact, become valid explanations to the indicators pointed out by the CCI. We have already commented about the market conditions and small number of suppliers. We have also mentioned that 12 new entrants cannot be considered as entry of very few new suppliers where the existing suppliers were only 50. Identical products along with market conditions for which there would be only three buyers, in fact, would go in favour of the appellants. The factor of repetitive bidding, though appears to be a factor against the appellants, was also possible in the aforesaid scneario. The prevailing conditions in fact rule out the possibility of much price variations and all the manufacturers are virtually forced to submit their bid with a price that is quite close to each other. Therefore, it became necessary to sustain themselves in the market. Hence, the factor that these suppliers are from different region having different cost of manufacture would lose its significance. It is a situation where prime condition is to quote the price at which a particular manufacturer can bag an order even when its manufacturing cost is more than the manufacturing cost of others. The main purpose for such a manufacuring would be to remain in the fray and not to lose out. Therefore, it would be ready to accept lesser margin. This would answer why there were near identical bids despite varying costIn Theatre Enterprises v. Paramount Films, the Supreme Court of United States held as under:The crucial question is whether respondents conduct toward petitioner stemmed from independent decision or from an agreement, tacit or express. To be sure, business behavior is admissible circumstantial evidence from which the fact finder may infer agreement. Interstate Circuit. But this Court has never held that proof of parallel business behavior conclusively establishes agreement or, phrased differently, that such behavior itself constitutes a Sherman Act offence. Circumstantial evidence of consciously parallel behavior may have made heavy inroads into the traditional judicial attitude toward conspiracy; but conscious parallelism has not yet read conspiracy out of the Sherman Act entirelyIn this regard, the test laid down by the Supreme Court of United States in Monsanto Co. v.e Service Corp. 17 is relevant and is reproduced hereunder: 16 17The correct standard is that there must be evidence that tends to exclude the possibility that the manufacturer andd distributors were acting independently. That is, there must be direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objectiveThis test was reiterated by the Supreme Court of United States in Matsushita v. Zenith Ratio Corp.…..But antitrust law limits the range of permissible inferences from ambiguous evidence in a 1 case. Thus, in Monsanto Co. v.e Service Corp., 465 U.S. 752 (1984), we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Id., at 764. See also Cities Service, supra, at 280. To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of 1 must present evidence that tends to exclude the possibility that the alleged conspirators acted independently. 465 U.S., at 764 …….…...petitioners had no motive to enter into the alleged conspiracy. To the contrary, as presumably rational businesses, petitioners had every incentive not to engage in the conduct with which they are charged, for its likely effect would be to generate losses for petitioners with no corresponding gains. Cf. Cities Service, 391 U.S., at 279 . The Court of Appeals did not take account of the absence of a plausible motive to enter into the alleged predatory pricing conspiracy. It focused instead on whether there was direct evidence of concert of action. 723 F.2d, at 304. The Court of Appeals erred in two respects: (i) the direct evidence on which the court relied had little, if any, relevance to the alleged predatory pricing conspiracy; and (ii) the court failed to consider the absence of a plausible motive to engage in predatory pricing…..Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if petitioners had no rational economic motive to conspire, and if their conduct isSimilarly, in Bell Atlantic Corp v. Twombly, the U.S. Supreme Court held as under:] Because §1 of the Sherman Actdoes not prohibit [all] unreasonable restraints of trade … but only restraints effected by a contract, combination, or conspiracy,Copperweld Corp. v. Independence Tube Corp.,467 U.S. 752,775(1984) , [t]he crucial question is whether the challenged anticompetitive conductstem[s] from independent decision or from an agreement, tacit or express,Theatre Enterprises, 346 U. S., at 540. While a showing of parallelbusiness behavior is admissible circumstantial evidence from which the fact finder may infer agreement,conclusively establishing agreement or … itself constituting a Sherman Act offenseId., at 540–541. Even conscious parallelism, a common reaction offirms in a concentrated market [that] recogniz[e] their shared economic interests and their interdependence with respect to price and output decisionsis not in itself unlawful. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 227 (1993) ; see 6 P. Areeda & H. Hovenkamp, Antitrust Law ¶1433a, p. 236 (2d ed. 2003) (hereinafter Areeda & Hovenkamp) (The courts are nearly unanimous in saying that mere interdependent parallelism does not establish the contract, combination, or conspiracy required by Sherman Act §1); Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75Harv. L. Rev. 655, 672 (1962) ( [M]ere interdependence of basic price decisions is not conspiracy).] The inadequacy of showing parallel conduct or interdependence, without more, mirrors the ambiguity of the behavior: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market. See, e.g.,s Joint Center for Regulatory Studies, Epstein, Motions to Dismiss Antitrust Cases: Separating Fact from Fantasy, Related 19 Publication 06–08, pp. 3–4 (2006) (discussing problem of false positives in §1 suits). Accordingly, we have previously hedged against false inferences from identical behavior at a number of points in the trial sequence. An antitrust conspiracy plaintiff with evidence showing nothing beyond parallel conduct is not entitled to a directed verdict, see Theatre Enterprises, supra; proof of a §1 conspiracy must include evidence tending to exclude the possibility of independent action, see Monsanto Co. v.e Service Corp., 465 U. S. 752 (1984); and at the summary judgment stage a §1 plaintiffs offer of conspiracy evidence must tend to rule out the possibility that the defendants were acting independently, see Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574(1986)After taking note of the test that needs to be applied in such cases, which was laid down in Dyestuffs and accepted in Excel Crop Care Limited, we come to the conclusion that the inferences drawn by the CCI on the basis of evidence collected by it are duly rebutted by the appellants and the appellants have been able to discharge the onus that shifted upon them on the basis of factors pointed out by the CCI. However, at that stage, the CCI failed to carry the matter further by having required and necessary inquiry that was needed in the instant caseWe are emphasising here that in such a watertight tender policy of IOCL which gave IOCL full control over the tendering process, it was necessary to summon IOCL. This would have cleared many aspects which are shrouded in mystery and the dust has not been clearedWe, thus, arrive at a conclusion that there is no sufficient evidence to hold that there was any agreement between the appellants for bid rigging. | 1 | 24,723 | 3,620 | ### 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 United States in Monsanto Co. v. Spray-Rite Service Corp. 17 is relevant and is reproduced hereunder: 16 17 The correct standard is that there must be evidence that tends to exclude the possibility that the manufacturer and non-terminated distributors were acting independently. That is, there must be direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objective. 99. This test was reiterated by the Supreme Court of United States in Matsushita v. Zenith Ratio Corp. : …..But antitrust law limits the range of permissible inferences from ambiguous evidence in a 1 case. Thus, in Monsanto Co. v. Spray-Rite Service Corp., 465 U.S. 752 (1984), we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Id., at 764. See also Cities Service, supra, at 280. To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of 1 must present evidence that tends to exclude the possibility that the alleged conspirators acted independently. 465 U.S., at 764 ……. …...petitioners had no motive to enter into the alleged conspiracy. To the contrary, as presumably rational businesses, petitioners had every incentive not to engage in the conduct with which they are charged, for its likely effect would be to generate losses for petitioners with no corresponding gains. Cf. Cities Service, 391 U.S., at 279 . The Court of Appeals did not take account of the absence of a plausible motive to enter into the alleged predatory pricing conspiracy. It focused instead on whether there was direct evidence of concert of action. 723 F.2d, at 304. The Court of Appeals erred in two respects: (i) the direct evidence on which the court relied had little, if any, relevance to the alleged predatory pricing conspiracy; and (ii) the court failed to consider the absence of a plausible motive to engage in predatory pricing….. xxx xxx xxx Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if petitioners had no rational economic motive to conspire, and if their conduct is consistent with other, equally plausible explanations, [475 U.S. 574, 597] the conduct does not give rise to an inference of conspiracy. See Cities Service, supra, at 278-280. 100. Similarly, in Bell Atlantic Corp v. Twombly , the U.S. Supreme Court held as under: 1-3] Because §1 of the Sherman Act does not prohibit [all] unreasonable restraints of trade … but only restraints effected by a contract, combination, or conspiracy, Copperweld Corp. v. Independence Tube Corp.,467 U.S. 752,775(1984) , [t]he crucial question is whether the challenged anticompetitive conduct stem[s] from independent decision or from an agreement, tacit or express, Theatre Enterprises, 346 U. S., at 540. While a showing of parallel business behavior is admissible circumstantial evidence from which the fact finder may infer agreement, it falls short of conclusively establishing agreement or … itself constituting a Sherman Act offense. Id., at 540–541. Even conscious parallelism, a common reaction of firms in a concentrated market [that] recogniz[e] their shared economic interests and their interdependence with respect to price and output decisions is not in itself unlawful. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 227 (1993) ; see 6 P. Areeda & H. Hovenkamp, Antitrust Law ¶1433a, p. 236 (2d ed. 2003) (hereinafter Areeda & Hovenkamp) ( The courts are nearly unanimous in saying that mere interdependent parallelism does not establish the contract, combination, or conspiracy required by Sherman Act §1 ); Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75Harv. L. Rev. 655, 672 (1962) ( [M]ere interdependence of basic price decisions is not conspiracy). [4-6] The inadequacy of showing parallel conduct or interdependence, without more, mirrors the ambiguity of the behavior: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market. See, e.g., AEI-Brookings Joint Center for Regulatory Studies, Epstein, Motions to Dismiss Antitrust Cases: Separating Fact from Fantasy, Related 19 Publication 06–08, pp. 3–4 (2006) (discussing problem of false positives in §1 suits). Accordingly, we have previously hedged against false inferences from identical behavior at a number of points in the trial sequence. An antitrust conspiracy plaintiff with evidence showing nothing beyond parallel conduct is not entitled to a directed verdict, see Theatre Enterprises, supra; proof of a §1 conspiracy must include evidence tending to exclude the possibility of independent action, see Monsanto Co. v. Spray-Rite Service Corp., 465 U. S. 752 (1984); and at the summary judgment stage a §1 plaintiffs offer of conspiracy evidence must tend to rule out the possibility that the defendants were acting independently, see Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574(1986). 101. After taking note of the test that needs to be applied in such cases, which was laid down in Dyestuffs and accepted in Excel Crop Care Limited, we come to the conclusion that the inferences drawn by the CCI on the basis of evidence collected by it are duly rebutted by the appellants and the appellants have been able to discharge the onus that shifted upon them on the basis of factors pointed out by the CCI. However, at that stage, the CCI failed to carry the matter further by having required and necessary inquiry that was needed in the instant case. 102. We are emphasising here that in such a watertight tender policy of IOCL which gave IOCL full control over the tendering process, it was necessary to summon IOCL. This would have cleared many aspects which are shrouded in mystery and the dust has not been cleared. 103. We, thus, arrive at a conclusion that there is no sufficient evidence to hold that there was any agreement between the appellants for bid rigging.
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this Court has never held that proof of parallel business behavior conclusively establishes agreement or, phrased differently, that such behavior itself constitutes a Sherman Act offence. Circumstantial evidence of consciously parallel behavior may have made heavy inroads into the traditional judicial attitude toward conspiracy; but conscious parallelism has not yet read conspiracy out of the Sherman Act entirelyIn this regard, the test laid down by the Supreme Court of United States in Monsanto Co. v.e Service Corp. 17 is relevant and is reproduced hereunder: 16 17The correct standard is that there must be evidence that tends to exclude the possibility that the manufacturer andd distributors were acting independently. That is, there must be direct or circumstantial evidence that reasonably tends to prove that the manufacturer and others had a conscious commitment to a common scheme designed to achieve an unlawful objectiveThis test was reiterated by the Supreme Court of United States in Matsushita v. Zenith Ratio Corp.…..But antitrust law limits the range of permissible inferences from ambiguous evidence in a 1 case. Thus, in Monsanto Co. v.e Service Corp., 465 U.S. 752 (1984), we held that conduct as consistent with permissible competition as with illegal conspiracy does not, standing alone, support an inference of antitrust conspiracy. Id., at 764. See also Cities Service, supra, at 280. To survive a motion for summary judgment or for a directed verdict, a plaintiff seeking damages for a violation of 1 must present evidence that tends to exclude the possibility that the alleged conspirators acted independently. 465 U.S., at 764 …….…...petitioners had no motive to enter into the alleged conspiracy. To the contrary, as presumably rational businesses, petitioners had every incentive not to engage in the conduct with which they are charged, for its likely effect would be to generate losses for petitioners with no corresponding gains. Cf. Cities Service, 391 U.S., at 279 . The Court of Appeals did not take account of the absence of a plausible motive to enter into the alleged predatory pricing conspiracy. It focused instead on whether there was direct evidence of concert of action. 723 F.2d, at 304. The Court of Appeals erred in two respects: (i) the direct evidence on which the court relied had little, if any, relevance to the alleged predatory pricing conspiracy; and (ii) the court failed to consider the absence of a plausible motive to engage in predatory pricing…..Lack of motive bears on the range of permissible conclusions that might be drawn from ambiguous evidence: if petitioners had no rational economic motive to conspire, and if their conduct isSimilarly, in Bell Atlantic Corp v. Twombly, the U.S. Supreme Court held as under:] Because §1 of the Sherman Actdoes not prohibit [all] unreasonable restraints of trade … but only restraints effected by a contract, combination, or conspiracy,Copperweld Corp. v. Independence Tube Corp.,467 U.S. 752,775(1984) , [t]he crucial question is whether the challenged anticompetitive conductstem[s] from independent decision or from an agreement, tacit or express,Theatre Enterprises, 346 U. S., at 540. While a showing of parallelbusiness behavior is admissible circumstantial evidence from which the fact finder may infer agreement,conclusively establishing agreement or … itself constituting a Sherman Act offenseId., at 540–541. Even conscious parallelism, a common reaction offirms in a concentrated market [that] recogniz[e] their shared economic interests and their interdependence with respect to price and output decisionsis not in itself unlawful. Brooke Group Ltd. v. Brown & Williamson Tobacco Corp., 509 U. S. 209, 227 (1993) ; see 6 P. Areeda & H. Hovenkamp, Antitrust Law ¶1433a, p. 236 (2d ed. 2003) (hereinafter Areeda & Hovenkamp) (The courts are nearly unanimous in saying that mere interdependent parallelism does not establish the contract, combination, or conspiracy required by Sherman Act §1); Turner, The Definition of Agreement Under the Sherman Act: Conscious Parallelism and Refusals to Deal, 75Harv. L. Rev. 655, 672 (1962) ( [M]ere interdependence of basic price decisions is not conspiracy).] The inadequacy of showing parallel conduct or interdependence, without more, mirrors the ambiguity of the behavior: consistent with conspiracy, but just as much in line with a wide swath of rational and competitive business strategy unilaterally prompted by common perceptions of the market. See, e.g.,s Joint Center for Regulatory Studies, Epstein, Motions to Dismiss Antitrust Cases: Separating Fact from Fantasy, Related 19 Publication 06–08, pp. 3–4 (2006) (discussing problem of false positives in §1 suits). Accordingly, we have previously hedged against false inferences from identical behavior at a number of points in the trial sequence. An antitrust conspiracy plaintiff with evidence showing nothing beyond parallel conduct is not entitled to a directed verdict, see Theatre Enterprises, supra; proof of a §1 conspiracy must include evidence tending to exclude the possibility of independent action, see Monsanto Co. v.e Service Corp., 465 U. S. 752 (1984); and at the summary judgment stage a §1 plaintiffs offer of conspiracy evidence must tend to rule out the possibility that the defendants were acting independently, see Matsushita Elec. Industrial Co. v. Zenith Radio Corp., 475 U.S. 574(1986)After taking note of the test that needs to be applied in such cases, which was laid down in Dyestuffs and accepted in Excel Crop Care Limited, we come to the conclusion that the inferences drawn by the CCI on the basis of evidence collected by it are duly rebutted by the appellants and the appellants have been able to discharge the onus that shifted upon them on the basis of factors pointed out by the CCI. However, at that stage, the CCI failed to carry the matter further by having required and necessary inquiry that was needed in the instant caseWe are emphasising here that in such a watertight tender policy of IOCL which gave IOCL full control over the tendering process, it was necessary to summon IOCL. This would have cleared many aspects which are shrouded in mystery and the dust has not been clearedWe, thus, arrive at a conclusion that there is no sufficient evidence to hold that there was any agreement between the appellants for bid rigging.
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Pati Ram Vs. State of Uttar Pradesh | injury as an incised injury. It is more or less a scratch. Even that injury as an injury as an incised injury, It is more or less a scratch. Even according to P.W. 2, who conducted the autopsy, the injury in question could have been caused by a nail. It is probable that this injury was caused by the iron tip of the Goolidar Lathi. We were informed that a Goolidar Lathi has a iron tip.8. In the course of his arguments the learned Council for the appellant advanced various other contentions. He urged that the requirements of Section 174, Cr. P.C. were not complied with in this case inasmuch as no Panchayatdar present at the inquest was examined as a witness in the case. The inquest report had been signed by the Head Constable who conducted the inquest and the five Panchayatdars who were present. Section 174, Cr. P.C. does not prescribe that any of the Panchayatdars should be examined as witnesses in the case. The inquest report was proved by the Head Constable who conducted the inquest. In this case there was no special reason for examining any of the Panchayatdar. The head Constable was not even cross-examined as regards the inquest.9. It was next said that Section 156, Cr. P.C. has not been complied with as the investigation was conducted by a Head Constable. This contention has also no merit in it. It is seen from the evidence of the Head Constable that when the first information was received in this case, no sub-inspector was present in the police station. He was the officer-incharge of the station at that time. Hence the law permitted him to investigate the case.10. It was next urged that Section 289, Cr. P.C. had been contravened and, therefore, the conviction of the appellant cannot be sustained. This contention is based on the assumption that only after coming to the conclusion that an accused is guilty, the trial judge can call upon him to enter into his defence. This is clearly a misreading of the section. What that section requires is that if the trial judge comes to the conclusion that there is evidence to show that the accused had committed the offence, then the accused should be called upon to enter upon his defence. The value to be attached to that evidence is not to be considered at that stage. In this connection it was also urged that the question whether the accused had defence evidence or not should not have been put to him in his examination under Section 342, Cr. P.C. but it should have been put to him separately. What has been done is, as is usually done in all such cases. After putting the questions that are required to be put under Section 342, Cr. P.C., the accused was asked whether he had any defence evidence. We do not think that that procedure in any way conflicts with Section 289, Cr. P.C. At the first instance, the appellant had stated that he had defence evidence to adduce, but when he was called upon to adduce that evidence, his counsel stated that he had no defence witness to be examined but put in an application requesting the Court to summon a document to show that in the consolidation proceedings between him and the deceased he had filed a Razinama. The learned Trial Judge thought that the document in question was unnecessary as he was accepting the plea of the appellant that in the consolidation proceedings, the parties had entered into a compromise. Under that circumstance it was not necessary for the Court to summon the document in question.11. A grievance was made of the fact that though a large number of witnesses had been cited in the charge-sheet, several of them were not examined in court. They were all witnesses to speak to the motive. Their evidence was considered unnecessary by the prosecution. The facts accepted by the Court as proving the motive are - (1) that there was a partition suit between the appellant and the deceased and that suit had been posted for hearing on August 8, 1967 and (2) that the deceased had sold her residential house to P.W. 1, a few days before the occurrence. So far as the latter is concerned, it was not disputed. In face according to the suggestions made on behalf of the defence P.W. 1 might have murdered the deceased as he had not paid fill consideration for the sale. So far as the partition suit is concerned, we have the evidence of P.W. 1. The same was not challenged in cross-examination. When that evidence was put to the appellant during his examination under Section 342, Cr. P.C. he pleaded that he was not aware of the same. But that fact is conclusively proved by Exh. K-15. Therefore there was no purpose in examining the witnesses cited in the charge-sheet to prove those facts.12. A point was made of the fact that some of the persons who had come to the scene immediately after the occurrence had not been examined. We see no substance in this contention. It is no bodys case that those parsons had witnessed the occurrence. Nor can it be said that they were reresgesta witnesses. That being so, their evidence was unnecessary for unfolding the prosecution case. As the Trial Court as well as the High Court believed the witnesses examined in the case, the non-examination of the other witnesses has no significance.13. Lastly it was urged that sentence of death should not have been imposed on the appellant as he was a young man. The question of sentence is within the discretion of the Trial Court. The appellate court or this Court does not interfere with that discretion unless there are adequate grounds for doing so. The appellant was thirty years when he was tried in the case. He was not a teenger. The ground urged for the mitigation of the sentence is wholly irrelevant. | 0[ds]1. After carefully going through the evidence on record with the assistance of the learned appearing for the appellant, we have come to the conclusion that this appeal has no merit. We shall now proceed to state our reasons in support of ouris no dispute that the injuries sustained by the deceased were sufficient in the ordinary curse of nature to cause death. Medical evidence supports that conclusion and the same was not challenged beforehave been taken through their evidence and we agree with the High Court that their evidence is acceptable. The only comment made against their evidence is that according to these witnesses, P W. 3 deposed that she had not seen the actual occurrence, but on hearing cries of the deceased she came out of the house and saw the deceased fallen down with the injuries. At that time P.Ws. 1 and 4 told her that the appellant had hit the deceased and run away. Her evidence is extremely important. Must argument was advanced regarding the contradiction referred to earlier. We attach no importance to the same. Evidently P.Ws. 1 and 4 had formed a wrong impression as to the time when P.W. 3 came to the scene. There is nothing strange about it, if we bear in mind the fact that the incident took place within a few seconds.We are asked to reject the testimony of P.Ws. 1, 3 and 4 on the ground that they were all inimically disposed towards the appellant.There is no basis for this contention. The fact that the deceased lived with P.W. 1. does not prove that he was an enemy of the appellant. Nor is it shown that P.Ws. 3 and 4 had any enmity with the appellant. As mentioned earlier, their evidence has been accepted both by the Trial Court as well as by the Appellate Court. Ordinarily this Court does not reappreciate the evidence on record. We see no special reason to depart from the normalis true that thereport describes one of the injuries found on the deceased as a stabour opinion this injury had been wrongly described by the doctor who conduced the autopsy. It would have been more appropriate to call that injury as an incised injury. It is more or less a scratch. Even that injury as an injury as an incised injury, It is more or less a scratch. Even according to P.W. 2, who conducted the autopsy, the injury in question could have been caused by a nail. It is probable that this injury was caused by the iron tip of the Goolidar Lathi. We were informed that a Goolidar Lathi has a ironinquest report had been signed by the Head Constable who conducted the inquest and the five Panchayatdars who were present. Section 174, Cr. P.C. does not prescribe that any of the Panchayatdars should be examined as witnesses in the case. The inquest report was proved by the Head Constable who conducted the inquest. In this case there was no special reason for examining any of the Panchayatdar. The head Constable was not evenas regards thecontention has also no merit in it. It is seen from the evidence of the Head Constable that when the first information was received in this case, nos present in the police station. He was theof the station at that time. Hence the law permitted him to investigate thecontention is based on the assumption that only after coming to the conclusion that an accused is guilty, the trial judge can call upon him to enter into his defence.This is clearly a misreading of the section. What that section requires is that if the trial judge comes to the conclusion that there is evidence to show that the accused had committed the offence, then the accused should be called upon to enter upon his defence. The value to be attached to that evidence is not to be considered at that stage. In this connection it was also urged that the question whether the accused had defence evidence or not should not have been put to him in his examination under Section 342, Cr. P.C. but it should have been put to him separately. What has been done is, as is usually done in all such cases. After putting the questions that are required to be put under Section 342, Cr. P.C., the accused was asked whether he had any defence evidence. We do not think that that procedure in any way conflicts with Section 289, Cr. P.C. At the first instance, the appellant had stated that he had defence evidence to adduce, but when he was called upon to adduce that evidence, his counsel stated that he had no defence witness to be examined but put in an application requesting the Court to summon a document to show that in the consolidation proceedings between him and the deceased he had filed a Razinama. The learned Trial Judge thought that the document in question was unnecessary as he was accepting the plea of the appellant that in the consolidation proceedings, the parties had entered into a compromise. Under that circumstance it was not necessary for the Court to summon the document in question.11.A grievance was made of the fact that though a large number of witnesses had been cited in thel of them were not examined in court.They were all witnesses to speak to the motive. Their evidence was considered unnecessary by the prosecution. The facts accepted by the Court as proving the motive are(1) that there was a partition suit between the appellant and the deceased and that suit had been posted for hearing on August 8, 1967 and (2) that the deceased had sold her residential house to P.W. 1, a few days before the occurrence. So far as the latter is concerned, it was not disputed. In face according to the suggestions made on behalf of the defence P.W. 1 might have murdered the deceased as he had not paid fill consideration for the sale. So far as the partition suit is concerned, we have the evidence of P.W. 1. The same was not challenged inWhen that evidence was put to the appellant during his examination under Section 342, Cr. P.C. he pleaded that he was not aware of the same. But that fact is conclusively proved by Exh.Therefore there was no purpose in examining the witnesses cited in theto prove those facts.12.A point was made of the fact that some of the persons who had come to the scene immediately after the occurrence had not been examined.We see no substance in this contention. It is no bodys case that those parsons had witnessed the occurrence. Nor can it be said that they were reresgesta witnesses. That being so, their evidence was unnecessary for unfolding the prosecution case. As the Trial Court as well as the High Court believed the witnesses examined in the case, theof the other witnesses has noquestion of sentence is within the discretion of the Trial Court. The appellate court or this Court does not interfere with that discretion unless there are adequate grounds for doing so. The appellant was thirty years when he was tried in the case. He was not a teenger. The ground urged for the mitigation of the sentence is wholly irrelevant. | 0 | 2,161 | 1,324 | ### Instruction:
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injury as an incised injury. It is more or less a scratch. Even that injury as an injury as an incised injury, It is more or less a scratch. Even according to P.W. 2, who conducted the autopsy, the injury in question could have been caused by a nail. It is probable that this injury was caused by the iron tip of the Goolidar Lathi. We were informed that a Goolidar Lathi has a iron tip.8. In the course of his arguments the learned Council for the appellant advanced various other contentions. He urged that the requirements of Section 174, Cr. P.C. were not complied with in this case inasmuch as no Panchayatdar present at the inquest was examined as a witness in the case. The inquest report had been signed by the Head Constable who conducted the inquest and the five Panchayatdars who were present. Section 174, Cr. P.C. does not prescribe that any of the Panchayatdars should be examined as witnesses in the case. The inquest report was proved by the Head Constable who conducted the inquest. In this case there was no special reason for examining any of the Panchayatdar. The head Constable was not even cross-examined as regards the inquest.9. It was next said that Section 156, Cr. P.C. has not been complied with as the investigation was conducted by a Head Constable. This contention has also no merit in it. It is seen from the evidence of the Head Constable that when the first information was received in this case, no sub-inspector was present in the police station. He was the officer-incharge of the station at that time. Hence the law permitted him to investigate the case.10. It was next urged that Section 289, Cr. P.C. had been contravened and, therefore, the conviction of the appellant cannot be sustained. This contention is based on the assumption that only after coming to the conclusion that an accused is guilty, the trial judge can call upon him to enter into his defence. This is clearly a misreading of the section. What that section requires is that if the trial judge comes to the conclusion that there is evidence to show that the accused had committed the offence, then the accused should be called upon to enter upon his defence. The value to be attached to that evidence is not to be considered at that stage. In this connection it was also urged that the question whether the accused had defence evidence or not should not have been put to him in his examination under Section 342, Cr. P.C. but it should have been put to him separately. What has been done is, as is usually done in all such cases. After putting the questions that are required to be put under Section 342, Cr. P.C., the accused was asked whether he had any defence evidence. We do not think that that procedure in any way conflicts with Section 289, Cr. P.C. At the first instance, the appellant had stated that he had defence evidence to adduce, but when he was called upon to adduce that evidence, his counsel stated that he had no defence witness to be examined but put in an application requesting the Court to summon a document to show that in the consolidation proceedings between him and the deceased he had filed a Razinama. The learned Trial Judge thought that the document in question was unnecessary as he was accepting the plea of the appellant that in the consolidation proceedings, the parties had entered into a compromise. Under that circumstance it was not necessary for the Court to summon the document in question.11. A grievance was made of the fact that though a large number of witnesses had been cited in the charge-sheet, several of them were not examined in court. They were all witnesses to speak to the motive. Their evidence was considered unnecessary by the prosecution. The facts accepted by the Court as proving the motive are - (1) that there was a partition suit between the appellant and the deceased and that suit had been posted for hearing on August 8, 1967 and (2) that the deceased had sold her residential house to P.W. 1, a few days before the occurrence. So far as the latter is concerned, it was not disputed. In face according to the suggestions made on behalf of the defence P.W. 1 might have murdered the deceased as he had not paid fill consideration for the sale. So far as the partition suit is concerned, we have the evidence of P.W. 1. The same was not challenged in cross-examination. When that evidence was put to the appellant during his examination under Section 342, Cr. P.C. he pleaded that he was not aware of the same. But that fact is conclusively proved by Exh. K-15. Therefore there was no purpose in examining the witnesses cited in the charge-sheet to prove those facts.12. A point was made of the fact that some of the persons who had come to the scene immediately after the occurrence had not been examined. We see no substance in this contention. It is no bodys case that those parsons had witnessed the occurrence. Nor can it be said that they were reresgesta witnesses. That being so, their evidence was unnecessary for unfolding the prosecution case. As the Trial Court as well as the High Court believed the witnesses examined in the case, the non-examination of the other witnesses has no significance.13. Lastly it was urged that sentence of death should not have been imposed on the appellant as he was a young man. The question of sentence is within the discretion of the Trial Court. The appellate court or this Court does not interfere with that discretion unless there are adequate grounds for doing so. The appellant was thirty years when he was tried in the case. He was not a teenger. The ground urged for the mitigation of the sentence is wholly irrelevant.
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the incident took place within a few seconds.We are asked to reject the testimony of P.Ws. 1, 3 and 4 on the ground that they were all inimically disposed towards the appellant.There is no basis for this contention. The fact that the deceased lived with P.W. 1. does not prove that he was an enemy of the appellant. Nor is it shown that P.Ws. 3 and 4 had any enmity with the appellant. As mentioned earlier, their evidence has been accepted both by the Trial Court as well as by the Appellate Court. Ordinarily this Court does not reappreciate the evidence on record. We see no special reason to depart from the normalis true that thereport describes one of the injuries found on the deceased as a stabour opinion this injury had been wrongly described by the doctor who conduced the autopsy. It would have been more appropriate to call that injury as an incised injury. It is more or less a scratch. Even that injury as an injury as an incised injury, It is more or less a scratch. Even according to P.W. 2, who conducted the autopsy, the injury in question could have been caused by a nail. It is probable that this injury was caused by the iron tip of the Goolidar Lathi. We were informed that a Goolidar Lathi has a ironinquest report had been signed by the Head Constable who conducted the inquest and the five Panchayatdars who were present. Section 174, Cr. P.C. does not prescribe that any of the Panchayatdars should be examined as witnesses in the case. The inquest report was proved by the Head Constable who conducted the inquest. In this case there was no special reason for examining any of the Panchayatdar. The head Constable was not evenas regards thecontention has also no merit in it. It is seen from the evidence of the Head Constable that when the first information was received in this case, nos present in the police station. He was theof the station at that time. Hence the law permitted him to investigate thecontention is based on the assumption that only after coming to the conclusion that an accused is guilty, the trial judge can call upon him to enter into his defence.This is clearly a misreading of the section. What that section requires is that if the trial judge comes to the conclusion that there is evidence to show that the accused had committed the offence, then the accused should be called upon to enter upon his defence. The value to be attached to that evidence is not to be considered at that stage. In this connection it was also urged that the question whether the accused had defence evidence or not should not have been put to him in his examination under Section 342, Cr. P.C. but it should have been put to him separately. What has been done is, as is usually done in all such cases. After putting the questions that are required to be put under Section 342, Cr. P.C., the accused was asked whether he had any defence evidence. We do not think that that procedure in any way conflicts with Section 289, Cr. P.C. At the first instance, the appellant had stated that he had defence evidence to adduce, but when he was called upon to adduce that evidence, his counsel stated that he had no defence witness to be examined but put in an application requesting the Court to summon a document to show that in the consolidation proceedings between him and the deceased he had filed a Razinama. The learned Trial Judge thought that the document in question was unnecessary as he was accepting the plea of the appellant that in the consolidation proceedings, the parties had entered into a compromise. Under that circumstance it was not necessary for the Court to summon the document in question.11.A grievance was made of the fact that though a large number of witnesses had been cited in thel of them were not examined in court.They were all witnesses to speak to the motive. Their evidence was considered unnecessary by the prosecution. The facts accepted by the Court as proving the motive are(1) that there was a partition suit between the appellant and the deceased and that suit had been posted for hearing on August 8, 1967 and (2) that the deceased had sold her residential house to P.W. 1, a few days before the occurrence. So far as the latter is concerned, it was not disputed. In face according to the suggestions made on behalf of the defence P.W. 1 might have murdered the deceased as he had not paid fill consideration for the sale. So far as the partition suit is concerned, we have the evidence of P.W. 1. The same was not challenged inWhen that evidence was put to the appellant during his examination under Section 342, Cr. P.C. he pleaded that he was not aware of the same. But that fact is conclusively proved by Exh.Therefore there was no purpose in examining the witnesses cited in theto prove those facts.12.A point was made of the fact that some of the persons who had come to the scene immediately after the occurrence had not been examined.We see no substance in this contention. It is no bodys case that those parsons had witnessed the occurrence. Nor can it be said that they were reresgesta witnesses. That being so, their evidence was unnecessary for unfolding the prosecution case. As the Trial Court as well as the High Court believed the witnesses examined in the case, theof the other witnesses has noquestion of sentence is within the discretion of the Trial Court. The appellate court or this Court does not interfere with that discretion unless there are adequate grounds for doing so. The appellant was thirty years when he was tried in the case. He was not a teenger. The ground urged for the mitigation of the sentence is wholly irrelevant.
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State of Assam Vs. Mohan Chandra Kalita & Another | did not go to the S. D.C. to complain about the collection. None of them stated that the S. D.C. had asked for collection of the amounts. Tajmudin, witness No. 8 admitted that he had collected the money for Garibhara. He says the reason for this collection was that on a certain day before 25th September 1963, many people were waiting at Mouzadars office for S. D.C. to come and make payment. He came at about 12 noon by bus from Dekiajuli and told them that it was a school bus and that he will not come again to Missamari to make payment and that all people should go to Dhekiajuli to receive payment. The crowd stated that it would be very inconvenient and troublesome for them to go to Dhekiajuli. As such the crowed themselves decided that they would contribute for the Garibhara of the S. D.C. to come and make payment at Missamari. As a result of the above agreement, Moni Gaonbura collected Garibhara for S. D.C. on 24th September 1963 and on 25th September the A.D.M. Shri Deka who came to Missamari found him collecting moneys. Hiren Saikia entered on a paper the names of the contributors and he collected the money and Bharat Das collected the Pooja subscription. He further says that he learnt that Mohindar Deka and Moniram Gaonbura also collected Garibhara for the S. D.C. According to him when A.D.M. Deka enquired of him as to on whose behalf he collected the money, he told him that S. D.C. Shri Kalita asked him to collect. As will be noticed this is not what A.D.M. Deka says. It was suggested to him in cross-examination that he collected the money for himself which of course he denied. Mohidar Deka who is a Moherrer of Mouzadar said he was collecting the arrears of land revenue and that Tajimudin was collecting the Garibhara for S. D.C. from the recipients money and Hiren Saikia entered their names on a paper. This collection was in pursuance of the peoples decision the previous day to pay for the Garibhara of the S. D.C. and as such as soon as each came out of the room he willingly contributed for the Garibhara and the contributors name was entered on a paper by Hiren Saika and that when A.D.M. asked the S. D.C. as to why Garibhara was being collected, the S. D.C. said he did not know anything. He also admits that no. one informed him that the S. D.C. asked him to collect the Garibhara. Shri Paresh Chandra Sharma is the Mouzadar of Missamari. He says he heard the S. D.C. saying that he cannot come the next day and that the public would have to go to Dhekiajuli to receive payment. He admits that he did not know anything about the collection of Garibhara nor did he hear the S. D.C. demanding it nor did he complain to him that Garibhara was being collected. Hiran Chandra Saika, witness No. 14, though he admits that he did not meet S. D.C. on the 25th September 1963 nonetheless volunteers that the S. D.C. asked all people present there to pay for the taxi charge. Obviously this witness cannot be relied upon. The A.D.M. Shri Deka says that when he enquired of Tajimuddin he tld him he was collecting the money at the instance of Hiren Saika who according to the A.D.M. ran away as soon as he entered. There is no. mention of his ever having asked the S. D.C. as to why this amount was being collected towards Garibhara and without even getting his explanation he had reported the matter to the D.O. in writing. This he did in spite of his further admission that no. person had complained to him that the S. D.C. had personally collected the money from them.8. This evidence does not establish that the S. D.C. had either authorised the collection or that the amount was collected at his instance or that he even connived at it. On the other hand as the A.D.M. Deka admitted, when he asked Tajimudin he informed him that the amount was being collected at the instance of Hiren Saika who immediately on seeing him ran away. According to Tajimudin, two other persons, namely, Mohidar Deka and Moniram Gaonbura were also collecting Garibhara amounts. It appears to us that because compensation amounts were being paid everyone was trying to collect whatever he could from those recipients. There was no. need for the respondent to collect any money for payment of taxi charges because he could recover those from the Government and in fact he had recovered that amount from the government. There is no. dispute that he did express his difficulty in finding a conveyance to come to Missamari as indeed he had to come there on that day in a school bus. He was not sure whether he could get a conveyance to come there the next day and naturally he informed those concerned that if he cannot get any conveyance and come there they should go to Dhekiajuli. It is at that stage that they suggested that he should come in a taxi and they will pay for it; but this did not imply that the S. D.C. had consented to anyone collecting moneys for the hire or much less permit them to pay for the hire on his behalf. All this merely shows that the suggestion that they should come to Dhekiajuli would seriously inconvenience them and they were even prepared to pay his taxi fare if he came to Missamari. Their earnest entreaties must have persuaded the S. D.C. to come there in a taxi. Beyond this, there is no. evidence to show that he had wanted them to pay for his taxi or authorised them to collect money for it. The High Court was therefore right in quashing the order of the A.D.M. Tezpur on the ground that there was no. evidence to sustain the charge.9. | 0[ds]From the evidence recorded by the enquiry officer which we have perused and to which a reference will be made presently, it is clear beyond doubt that none of the witnesses testified to the fact that on 25th September, 1963 or earlier, neither the respondent authorised the collection of Garibhara nor did anyone say that they complained to him about the collections that were being made outside his room. The enquiry officer recorded evidence on allegations extraneous to the charge such as that certain amounts were being collected as fee to be paid to the respondent, that the respondent had disbursed amounts less than those that were payable to the persons entitled to them and concluded that the respondent must have also authorised the collection of Garibhara.6. As we said earlier, there was no. charge against the respondent that he had not paid the full amounts to those entitled to compensation or that he had authorised anyone to collect any fee.This enquiry into extraneous allegations with which the respondent was not charged must have certainly prejudiced the enquiry officer against the respondent. Even if we were to ignore this aspect, there is no. evidence to connect the respondent with the allegation that he had authorised the collection of Garibhara much less can it be said, as averred in the charge, that he realised from those persons to whom compensation was being paid certain percentage of compensation money due to them for payment of hire charges of the vehicle in which he had visited the office of the Mauzadar from Dhekiajuli.The learned advocate for the State submits that there is evidence in the case to connect the respondent with the collection by Tajmudin of the Garibhara charges.This evidence however does not substantiate his contention. Mathew Kosla, witness No. 3, Jiban Deka, witness No. 4 and P.C. Deka, witness No. 5 and Rathu Kurmi, witness No. 6 though they say that amounts were collected by Bharat Chandra Das and Tajmudin, some of them had protested but they did not go to the S. D.C. to complain about the collection. None of them stated that the S. D.C. had asked for collection of the amounts. Tajmudin, witness No. 8 admitted that he had collected the money for Garibhara. He says the reason for this collection was that on a certain day before 25th September 1963, many people were waiting at Mouzadars office for S. D.C. to come and make payment. He came at about 12 noon by bus from Dekiajuli and told them that it was a school bus and that he will not come again to Missamari to make payment and that all people should go to Dhekiajuli to receive payment. The crowd stated that it would be very inconvenient and troublesome for them to go to Dhekiajuli. As such the crowed themselves decided that they would contribute for the Garibhara of the S. D.C. to come and make payment at Missamari. As a result of the above agreement, Moni Gaonbura collected Garibhara for S. D.C. on 24th September 1963 and on 25th September the A.D.M. Shri Deka who came to Missamari found him collecting moneys. Hiren Saikia entered on a paper the names of the contributors and he collected the money and Bharat Das collected the Pooja subscription. He further says that he learnt that Mohindar Deka and Moniram Gaonbura also collected Garibhara for the S. D.C. According to him when A.D.M. Deka enquired of him as to on whose behalf he collected the money, he told him that S. D.C. Shri Kalita asked him to collect. As will be noticed this is not what A.D.M. Deka says. It was suggested to him inthat he collected the money for himself which of course he denied. Mohidar Deka who is a Moherrer of Mouzadar said he was collecting the arrears of land revenue and that Tajimudin was collecting the Garibhara for S. D.C. from the recipients money and Hiren Saikia entered their names on a paper. This collection was in pursuance of the peoples decision the previous day to pay for the Garibhara of the S. D.C. and as such as soon as each came out of the room he willingly contributed for the Garibhara and the contributors name was entered on a paper by Hiren Saika and that when A.D.M. asked the S. D.C. as to why Garibhara was being collected, the S. D.C. said he did not know anything. He also admits that no. one informed him that the S. D.C. asked him to collect the Garibhara. Shri Paresh Chandra Sharma is the Mouzadar of Missamari. He says he heard the S. D.C. saying that he cannot come the next day and that the public would have to go to Dhekiajuli to receive payment. He admits that he did not know anything about the collection of Garibhara nor did he hear the S. D.C. demanding it nor did he complain to him that Garibhara was being collected. Hiran Chandra Saika, witness No. 14, though he admits that he did not meet S. D.C. on the 25th September 1963 nonetheless volunteers that the S. D.C. asked all people present there to pay for the taxi charge. Obviously this witness cannot be relied upon. The A.D.M. Shri Deka says that when he enquired of Tajimuddin he tld him he was collecting the money at the instance of Hiren Saika who according to the A.D.M. ran away as soon as he entered. There is no. mention of his ever having asked the S. D.C. as to why this amount was being collected towards Garibhara and without even getting his explanation he had reported the matter to the D.O. in writing. This he did in spite of his further admission that no. person had complained to him that the S. D.C. had personally collected the money from them.8. This evidence does not establish that the S. D.C. had either authorised the collection or that the amount was collected at his instance or that he even connived at it. On the other hand as the A.D.M. Deka admitted, when he asked Tajimudin he informed him that the amount was being collected at the instance of Hiren Saika who immediately on seeing him ran away. According to Tajimudin, two other persons, namely, Mohidar Deka and Moniram Gaonbura were also collecting Garibhara amounts. It appears to us that because compensation amounts were being paid everyone was trying to collect whatever he could from those recipients. There was no. need for the respondent to collect any money for payment of taxi charges because he could recover those from the Government and in fact he had recovered that amount from the government. There is no. dispute that he did express his difficulty in finding a conveyance to come to Missamari as indeed he had to come there on that day in a school bus. He was not sure whether he could get a conveyance to come there the next day and naturally he informed those concerned that if he cannot get any conveyance and come there they should go to Dhekiajuli. It is at that stage that they suggested that he should come in a taxi and they will pay for it; but this did not imply that the S. D.C. had consented to anyone collecting moneys for the hire or much less permit them to pay for the hire on his behalf. All this merely shows that the suggestion that they should come to Dhekiajuli would seriously inconvenience them and they were even prepared to pay his taxi fare if he came to Missamari. Their earnest entreaties must have persuaded the S. D.C. to come there in a taxi. Beyond this, there is no. evidence to show that he had wanted them to pay for his taxi or authorised them to collect money for it. | 0 | 2,537 | 1,403 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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did not go to the S. D.C. to complain about the collection. None of them stated that the S. D.C. had asked for collection of the amounts. Tajmudin, witness No. 8 admitted that he had collected the money for Garibhara. He says the reason for this collection was that on a certain day before 25th September 1963, many people were waiting at Mouzadars office for S. D.C. to come and make payment. He came at about 12 noon by bus from Dekiajuli and told them that it was a school bus and that he will not come again to Missamari to make payment and that all people should go to Dhekiajuli to receive payment. The crowd stated that it would be very inconvenient and troublesome for them to go to Dhekiajuli. As such the crowed themselves decided that they would contribute for the Garibhara of the S. D.C. to come and make payment at Missamari. As a result of the above agreement, Moni Gaonbura collected Garibhara for S. D.C. on 24th September 1963 and on 25th September the A.D.M. Shri Deka who came to Missamari found him collecting moneys. Hiren Saikia entered on a paper the names of the contributors and he collected the money and Bharat Das collected the Pooja subscription. He further says that he learnt that Mohindar Deka and Moniram Gaonbura also collected Garibhara for the S. D.C. According to him when A.D.M. Deka enquired of him as to on whose behalf he collected the money, he told him that S. D.C. Shri Kalita asked him to collect. As will be noticed this is not what A.D.M. Deka says. It was suggested to him in cross-examination that he collected the money for himself which of course he denied. Mohidar Deka who is a Moherrer of Mouzadar said he was collecting the arrears of land revenue and that Tajimudin was collecting the Garibhara for S. D.C. from the recipients money and Hiren Saikia entered their names on a paper. This collection was in pursuance of the peoples decision the previous day to pay for the Garibhara of the S. D.C. and as such as soon as each came out of the room he willingly contributed for the Garibhara and the contributors name was entered on a paper by Hiren Saika and that when A.D.M. asked the S. D.C. as to why Garibhara was being collected, the S. D.C. said he did not know anything. He also admits that no. one informed him that the S. D.C. asked him to collect the Garibhara. Shri Paresh Chandra Sharma is the Mouzadar of Missamari. He says he heard the S. D.C. saying that he cannot come the next day and that the public would have to go to Dhekiajuli to receive payment. He admits that he did not know anything about the collection of Garibhara nor did he hear the S. D.C. demanding it nor did he complain to him that Garibhara was being collected. Hiran Chandra Saika, witness No. 14, though he admits that he did not meet S. D.C. on the 25th September 1963 nonetheless volunteers that the S. D.C. asked all people present there to pay for the taxi charge. Obviously this witness cannot be relied upon. The A.D.M. Shri Deka says that when he enquired of Tajimuddin he tld him he was collecting the money at the instance of Hiren Saika who according to the A.D.M. ran away as soon as he entered. There is no. mention of his ever having asked the S. D.C. as to why this amount was being collected towards Garibhara and without even getting his explanation he had reported the matter to the D.O. in writing. This he did in spite of his further admission that no. person had complained to him that the S. D.C. had personally collected the money from them.8. This evidence does not establish that the S. D.C. had either authorised the collection or that the amount was collected at his instance or that he even connived at it. On the other hand as the A.D.M. Deka admitted, when he asked Tajimudin he informed him that the amount was being collected at the instance of Hiren Saika who immediately on seeing him ran away. According to Tajimudin, two other persons, namely, Mohidar Deka and Moniram Gaonbura were also collecting Garibhara amounts. It appears to us that because compensation amounts were being paid everyone was trying to collect whatever he could from those recipients. There was no. need for the respondent to collect any money for payment of taxi charges because he could recover those from the Government and in fact he had recovered that amount from the government. There is no. dispute that he did express his difficulty in finding a conveyance to come to Missamari as indeed he had to come there on that day in a school bus. He was not sure whether he could get a conveyance to come there the next day and naturally he informed those concerned that if he cannot get any conveyance and come there they should go to Dhekiajuli. It is at that stage that they suggested that he should come in a taxi and they will pay for it; but this did not imply that the S. D.C. had consented to anyone collecting moneys for the hire or much less permit them to pay for the hire on his behalf. All this merely shows that the suggestion that they should come to Dhekiajuli would seriously inconvenience them and they were even prepared to pay his taxi fare if he came to Missamari. Their earnest entreaties must have persuaded the S. D.C. to come there in a taxi. Beyond this, there is no. evidence to show that he had wanted them to pay for his taxi or authorised them to collect money for it. The High Court was therefore right in quashing the order of the A.D.M. Tezpur on the ground that there was no. evidence to sustain the charge.9.
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No. 5 and Rathu Kurmi, witness No. 6 though they say that amounts were collected by Bharat Chandra Das and Tajmudin, some of them had protested but they did not go to the S. D.C. to complain about the collection. None of them stated that the S. D.C. had asked for collection of the amounts. Tajmudin, witness No. 8 admitted that he had collected the money for Garibhara. He says the reason for this collection was that on a certain day before 25th September 1963, many people were waiting at Mouzadars office for S. D.C. to come and make payment. He came at about 12 noon by bus from Dekiajuli and told them that it was a school bus and that he will not come again to Missamari to make payment and that all people should go to Dhekiajuli to receive payment. The crowd stated that it would be very inconvenient and troublesome for them to go to Dhekiajuli. As such the crowed themselves decided that they would contribute for the Garibhara of the S. D.C. to come and make payment at Missamari. As a result of the above agreement, Moni Gaonbura collected Garibhara for S. D.C. on 24th September 1963 and on 25th September the A.D.M. Shri Deka who came to Missamari found him collecting moneys. Hiren Saikia entered on a paper the names of the contributors and he collected the money and Bharat Das collected the Pooja subscription. He further says that he learnt that Mohindar Deka and Moniram Gaonbura also collected Garibhara for the S. D.C. According to him when A.D.M. Deka enquired of him as to on whose behalf he collected the money, he told him that S. D.C. Shri Kalita asked him to collect. As will be noticed this is not what A.D.M. Deka says. It was suggested to him inthat he collected the money for himself which of course he denied. Mohidar Deka who is a Moherrer of Mouzadar said he was collecting the arrears of land revenue and that Tajimudin was collecting the Garibhara for S. D.C. from the recipients money and Hiren Saikia entered their names on a paper. This collection was in pursuance of the peoples decision the previous day to pay for the Garibhara of the S. D.C. and as such as soon as each came out of the room he willingly contributed for the Garibhara and the contributors name was entered on a paper by Hiren Saika and that when A.D.M. asked the S. D.C. as to why Garibhara was being collected, the S. D.C. said he did not know anything. He also admits that no. one informed him that the S. D.C. asked him to collect the Garibhara. Shri Paresh Chandra Sharma is the Mouzadar of Missamari. He says he heard the S. D.C. saying that he cannot come the next day and that the public would have to go to Dhekiajuli to receive payment. He admits that he did not know anything about the collection of Garibhara nor did he hear the S. D.C. demanding it nor did he complain to him that Garibhara was being collected. Hiran Chandra Saika, witness No. 14, though he admits that he did not meet S. D.C. on the 25th September 1963 nonetheless volunteers that the S. D.C. asked all people present there to pay for the taxi charge. Obviously this witness cannot be relied upon. The A.D.M. Shri Deka says that when he enquired of Tajimuddin he tld him he was collecting the money at the instance of Hiren Saika who according to the A.D.M. ran away as soon as he entered. There is no. mention of his ever having asked the S. D.C. as to why this amount was being collected towards Garibhara and without even getting his explanation he had reported the matter to the D.O. in writing. This he did in spite of his further admission that no. person had complained to him that the S. D.C. had personally collected the money from them.8. This evidence does not establish that the S. D.C. had either authorised the collection or that the amount was collected at his instance or that he even connived at it. On the other hand as the A.D.M. Deka admitted, when he asked Tajimudin he informed him that the amount was being collected at the instance of Hiren Saika who immediately on seeing him ran away. According to Tajimudin, two other persons, namely, Mohidar Deka and Moniram Gaonbura were also collecting Garibhara amounts. It appears to us that because compensation amounts were being paid everyone was trying to collect whatever he could from those recipients. There was no. need for the respondent to collect any money for payment of taxi charges because he could recover those from the Government and in fact he had recovered that amount from the government. There is no. dispute that he did express his difficulty in finding a conveyance to come to Missamari as indeed he had to come there on that day in a school bus. He was not sure whether he could get a conveyance to come there the next day and naturally he informed those concerned that if he cannot get any conveyance and come there they should go to Dhekiajuli. It is at that stage that they suggested that he should come in a taxi and they will pay for it; but this did not imply that the S. D.C. had consented to anyone collecting moneys for the hire or much less permit them to pay for the hire on his behalf. All this merely shows that the suggestion that they should come to Dhekiajuli would seriously inconvenience them and they were even prepared to pay his taxi fare if he came to Missamari. Their earnest entreaties must have persuaded the S. D.C. to come there in a taxi. Beyond this, there is no. evidence to show that he had wanted them to pay for his taxi or authorised them to collect money for it.
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Balwant Singh Vs. State of Haryana | he was stated to have joined the army, while Tej Singh was given up by the public prosecutor on the ground of having been won over.11. The accused, other than Mange Ram and Tej Singh, denied the prosecution allegations. According to them, they were not present at the scene of occurrence. The version of the occurrence on behalf of Mange Ram and Tej Singh was given by Mange Ram in the following words :"Mam Kaur had sold a gher to Attar Singh etc. We pre-empted that and had taken possession. I had stocked my harvested wheat crop there for thrashing it. Tej Singh and I were working there. Attar Singh, Mehtab Singh, Kabul Singh, Dharam Singh and Ram Singh P.W.s came there. They started giving me abuses and asked us to remove the Bunga of wheat crop. We refused. They started beating us with lathis. We also beat them with out weapons. I had a jelli. Tej Singh had a lathis. We raised hue and cry. Kure, Jai Lal, Shib Narain, Kanshi Ram, Bhartu and Parkash came to our help. They were armed with lathis. The P.W.s did not stop beating us. Our helpers then started beating the P.W.s and thus rescued us. I and Tej Singh then went to the Thana to lodge a report. The Thanedar refused to record our report. He came to the village with us. The Thanedar then arrested all of us in the village."In defence, one witness Kure was produced in support of the version of Mange Ram.12. As stated above, the trial court acquitted all the eight accused, while the High Court on appeal convicted the seven accused-appellants.13. We have heard Mr. Kohli on behalf of the appellants and Mr . Goswami on behalf of the State, and are of the view that there is no merit in the appeal. The prosecution case about the seven accused appellants having assaulted Mehtab Singh, Attar Singh, Kabul Singh and Dharam Singh is supported by the evidence of Mehtab Singh (P.W. 11), Attar Singh (P.W. 12), Kabul Singh (P.W. 14) and Mari (P.W. 15). We agree with the learned judges of High Court that there appears to be no cogent ground to disbelieve the evidence of those witnesses. The mere fact that they are related to each other would not be a sufficient ground for discrediting their testimony. Mehtab Singh, Attar Singh and Kabul Singh had injuries on their persons and there can be hardly any manner of doubt regarding their presence at the scene at the scene of occurrence. It is also most difficult to believe that the injured witnesses would spare their real assailants and falsely involve innocent persons as those responsible for causing injuries to them. The trial court rejected the evidence of the eye-witnesses on the ground of their being related to each other. This circumstance, as pointed out by the High Court, did not warrant the rejection of their testimony. The trial court also referred to the discrepancy, in the prosecution evidence on the point as to whether there were some persons ploughing nearby field. This discrepancy, as observed by the High Court, was not of a material character and did not militate against the credibility of the prosecution witnesses.14. The medical evidence shows that as many as 56 injuries were found on the persons of Mehtab Singh, Attar Singh, Kabul Singh and Dharam Singh. Out of them, six injuries were grievous. Four of the injuries had been caused by sharp-edged weapon, and five of them had been caused by sharp-pointed weapon. If the injured prosecution witnesses accompanied by Dharam Singh and Ram Singh had attacked Mange Ram and Tej Singh as stated by Mange Ram, it is difficult to believe that Mange Ram and Tej Singh would escape with only three visible injuries, while as many as 56 injuries would be caused to the complainant party. The version of the occurrence as given by Mange Ram, in our opinion, is not worthy of credence and has been rightly rejected by the High Court. We also find that the injuries on the person of Mange Ram and Tej Singh accused have been fully explained by Mehtab Singh P.W. According to the witness, he and Attar Singh had small dandas in their hands and wielded them to ward off the blows of the accused.15. There is a discrepancy in the prosecution evidence as to whether Sub-Inspector Gurmej Singh got some intimation about the occurrence when he was on patrol duty or whether he got it at the police station. This circumstance, as held by the High Court, did not justify the throwing out of the entire prosecution case. There is no cogent evidence on the record to show that the intimation received by the Sub-Inspector was precise and not vague before he arrived at the place of occurrence.16. Mr. Kohli has argued that the five injuries caused by sharp-pointed weapon on the persons of Mehtab Singh, Attar Singh and Kabul Singh P.Ws. could be the result of three blows with jellis. The two injuries caused by sharp-pointed weapon on the person of Mehtab Singh, according to the learned counsel, could have been the result of one blow. Likewise, two of such injuries on the person of Kabul Singh could be caused by a single blow. This contention, even if accepted, in out opinion, would not make much material difference. Three of the accused, according to the prosecution case, were armed with jellis and there is nothing to rule out that each of them gave one blow to the injured witnesses. Assuming that one of the accused with jelli did not cause any injury, that fact would not exculpate him because the conviction of the accused is for the offence under Section 326 read with Section 149, I.P.C. The circumstances of the case indicate that the injuries which were caused to Mehtab Singh, Attar Singh and Kabul Singh were in prosecution of the common object of all the accused-appellants to cause grievous injuries. | 0[ds]13. We have heard Mr. Kohli on behalf of the appellants and Mr . Goswami on behalf of the State, and are of the view that there is no merit in the appeal. The prosecution case about the seven accused appellants having assaulted Mehtab Singh, Attar Singh, Kabul Singh and Dharam Singh is supported by the evidence of Mehtab Singh (P.W. 11), Attar Singh (P.W. 12), Kabul Singh (P.W. 14) and Mari (P.W. 15). We agree with the learned judges of High Court that there appears to be no cogent ground to disbelieve the evidence of those witnesses. The mere fact that they are related to each other would not be a sufficient ground for discrediting their testimony. Mehtab Singh, Attar Singh and Kabul Singh had injuries on their persons and there can be hardly any manner of doubt regarding their presence at the scene at the scene of occurrence. It is also most difficult to believe that the injured witnesses would spare their real assailants and falsely involve innocent persons as those responsible for causing injuries to them. The trial court rejected the evidence of theon the ground of their being related to each other. This circumstance, as pointed out by the High Court, did not warrant the rejection of their testimony. The trial court also referred to the discrepancy, in the prosecution evidence on the point as to whether there were some persons ploughing nearby field. This discrepancy, as observed by the High Court, was not of a material character and did not militate against the credibility of the prosecution witnesses.14. The medical evidence shows that as many as 56 injuries were found on the persons of Mehtab Singh, Attar Singh, Kabul Singh and Dharam Singh. Out of them, six injuries were grievous. Four of the injuries had been caused byweapon, and five of them had been caused byweapon. If the injured prosecution witnesses accompanied by Dharam Singh and Ram Singh had attacked Mange Ram and Tej Singh as stated by Mange Ram, it is difficult to believe that Mange Ram and Tej Singh would escape with only three visible injuries, while as many as 56 injuries would be caused to the complainant party. The version of the occurrence as given by Mange Ram, in our opinion, is not worthy of credence and has been rightly rejected by the High Court. We also find that the injuries on the person of Mange Ram and Tej Singh accused have been fully explained by Mehtab Singh P.W. According to the witness, he and Attar Singh had small dandas in their hands and wielded them to ward off the blows of the accused.15. There is a discrepancy in the prosecution evidence as to whetherGurmej Singh got some intimation about the occurrence when he was on patrol duty or whether he got it at the police station. This circumstance, as held by the High Court, did not justify the throwing out of the entire prosecution case. There is no cogent evidence on the record to show that the intimation received by thewas precise and not vague before he arrived at the place of occurrence.Mr. Kohli has argued that the five injuries caused byn on the persons of Mehtab Singh, Attar Singh and Kabul Singh P.Ws. could be the result of three blows with jellis. The two injuries caused byn on the person of Mehtab Singh, according to the learned counsel, could have been the result of one blow. Likewise, two of such injuries on the person of Kabul Singh could be caused by a single blow.This contention, even if accepted, in out opinion, would not make much material difference. Three of the accused, according to the prosecution case, were armed with jellis and there is nothing to rule out that each of them gave one blow to the injured witnesses. Assuming that one of the accused with jelli did not cause any injury, that fact would not exculpate him because the conviction of the accused is for the offence under Section 326 read with Section 149, I.P.C. The circumstances of the case indicate that the injuries which were caused to Mehtab Singh, Attar Singh and Kabul Singh were in prosecution of the common object of all theto cause grievous injuries. | 0 | 2,647 | 786 | ### 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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he was stated to have joined the army, while Tej Singh was given up by the public prosecutor on the ground of having been won over.11. The accused, other than Mange Ram and Tej Singh, denied the prosecution allegations. According to them, they were not present at the scene of occurrence. The version of the occurrence on behalf of Mange Ram and Tej Singh was given by Mange Ram in the following words :"Mam Kaur had sold a gher to Attar Singh etc. We pre-empted that and had taken possession. I had stocked my harvested wheat crop there for thrashing it. Tej Singh and I were working there. Attar Singh, Mehtab Singh, Kabul Singh, Dharam Singh and Ram Singh P.W.s came there. They started giving me abuses and asked us to remove the Bunga of wheat crop. We refused. They started beating us with lathis. We also beat them with out weapons. I had a jelli. Tej Singh had a lathis. We raised hue and cry. Kure, Jai Lal, Shib Narain, Kanshi Ram, Bhartu and Parkash came to our help. They were armed with lathis. The P.W.s did not stop beating us. Our helpers then started beating the P.W.s and thus rescued us. I and Tej Singh then went to the Thana to lodge a report. The Thanedar refused to record our report. He came to the village with us. The Thanedar then arrested all of us in the village."In defence, one witness Kure was produced in support of the version of Mange Ram.12. As stated above, the trial court acquitted all the eight accused, while the High Court on appeal convicted the seven accused-appellants.13. We have heard Mr. Kohli on behalf of the appellants and Mr . Goswami on behalf of the State, and are of the view that there is no merit in the appeal. The prosecution case about the seven accused appellants having assaulted Mehtab Singh, Attar Singh, Kabul Singh and Dharam Singh is supported by the evidence of Mehtab Singh (P.W. 11), Attar Singh (P.W. 12), Kabul Singh (P.W. 14) and Mari (P.W. 15). We agree with the learned judges of High Court that there appears to be no cogent ground to disbelieve the evidence of those witnesses. The mere fact that they are related to each other would not be a sufficient ground for discrediting their testimony. Mehtab Singh, Attar Singh and Kabul Singh had injuries on their persons and there can be hardly any manner of doubt regarding their presence at the scene at the scene of occurrence. It is also most difficult to believe that the injured witnesses would spare their real assailants and falsely involve innocent persons as those responsible for causing injuries to them. The trial court rejected the evidence of the eye-witnesses on the ground of their being related to each other. This circumstance, as pointed out by the High Court, did not warrant the rejection of their testimony. The trial court also referred to the discrepancy, in the prosecution evidence on the point as to whether there were some persons ploughing nearby field. This discrepancy, as observed by the High Court, was not of a material character and did not militate against the credibility of the prosecution witnesses.14. The medical evidence shows that as many as 56 injuries were found on the persons of Mehtab Singh, Attar Singh, Kabul Singh and Dharam Singh. Out of them, six injuries were grievous. Four of the injuries had been caused by sharp-edged weapon, and five of them had been caused by sharp-pointed weapon. If the injured prosecution witnesses accompanied by Dharam Singh and Ram Singh had attacked Mange Ram and Tej Singh as stated by Mange Ram, it is difficult to believe that Mange Ram and Tej Singh would escape with only three visible injuries, while as many as 56 injuries would be caused to the complainant party. The version of the occurrence as given by Mange Ram, in our opinion, is not worthy of credence and has been rightly rejected by the High Court. We also find that the injuries on the person of Mange Ram and Tej Singh accused have been fully explained by Mehtab Singh P.W. According to the witness, he and Attar Singh had small dandas in their hands and wielded them to ward off the blows of the accused.15. There is a discrepancy in the prosecution evidence as to whether Sub-Inspector Gurmej Singh got some intimation about the occurrence when he was on patrol duty or whether he got it at the police station. This circumstance, as held by the High Court, did not justify the throwing out of the entire prosecution case. There is no cogent evidence on the record to show that the intimation received by the Sub-Inspector was precise and not vague before he arrived at the place of occurrence.16. Mr. Kohli has argued that the five injuries caused by sharp-pointed weapon on the persons of Mehtab Singh, Attar Singh and Kabul Singh P.Ws. could be the result of three blows with jellis. The two injuries caused by sharp-pointed weapon on the person of Mehtab Singh, according to the learned counsel, could have been the result of one blow. Likewise, two of such injuries on the person of Kabul Singh could be caused by a single blow. This contention, even if accepted, in out opinion, would not make much material difference. Three of the accused, according to the prosecution case, were armed with jellis and there is nothing to rule out that each of them gave one blow to the injured witnesses. Assuming that one of the accused with jelli did not cause any injury, that fact would not exculpate him because the conviction of the accused is for the offence under Section 326 read with Section 149, I.P.C. The circumstances of the case indicate that the injuries which were caused to Mehtab Singh, Attar Singh and Kabul Singh were in prosecution of the common object of all the accused-appellants to cause grievous injuries.
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13. We have heard Mr. Kohli on behalf of the appellants and Mr . Goswami on behalf of the State, and are of the view that there is no merit in the appeal. The prosecution case about the seven accused appellants having assaulted Mehtab Singh, Attar Singh, Kabul Singh and Dharam Singh is supported by the evidence of Mehtab Singh (P.W. 11), Attar Singh (P.W. 12), Kabul Singh (P.W. 14) and Mari (P.W. 15). We agree with the learned judges of High Court that there appears to be no cogent ground to disbelieve the evidence of those witnesses. The mere fact that they are related to each other would not be a sufficient ground for discrediting their testimony. Mehtab Singh, Attar Singh and Kabul Singh had injuries on their persons and there can be hardly any manner of doubt regarding their presence at the scene at the scene of occurrence. It is also most difficult to believe that the injured witnesses would spare their real assailants and falsely involve innocent persons as those responsible for causing injuries to them. The trial court rejected the evidence of theon the ground of their being related to each other. This circumstance, as pointed out by the High Court, did not warrant the rejection of their testimony. The trial court also referred to the discrepancy, in the prosecution evidence on the point as to whether there were some persons ploughing nearby field. This discrepancy, as observed by the High Court, was not of a material character and did not militate against the credibility of the prosecution witnesses.14. The medical evidence shows that as many as 56 injuries were found on the persons of Mehtab Singh, Attar Singh, Kabul Singh and Dharam Singh. Out of them, six injuries were grievous. Four of the injuries had been caused byweapon, and five of them had been caused byweapon. If the injured prosecution witnesses accompanied by Dharam Singh and Ram Singh had attacked Mange Ram and Tej Singh as stated by Mange Ram, it is difficult to believe that Mange Ram and Tej Singh would escape with only three visible injuries, while as many as 56 injuries would be caused to the complainant party. The version of the occurrence as given by Mange Ram, in our opinion, is not worthy of credence and has been rightly rejected by the High Court. We also find that the injuries on the person of Mange Ram and Tej Singh accused have been fully explained by Mehtab Singh P.W. According to the witness, he and Attar Singh had small dandas in their hands and wielded them to ward off the blows of the accused.15. There is a discrepancy in the prosecution evidence as to whetherGurmej Singh got some intimation about the occurrence when he was on patrol duty or whether he got it at the police station. This circumstance, as held by the High Court, did not justify the throwing out of the entire prosecution case. There is no cogent evidence on the record to show that the intimation received by thewas precise and not vague before he arrived at the place of occurrence.Mr. Kohli has argued that the five injuries caused byn on the persons of Mehtab Singh, Attar Singh and Kabul Singh P.Ws. could be the result of three blows with jellis. The two injuries caused byn on the person of Mehtab Singh, according to the learned counsel, could have been the result of one blow. Likewise, two of such injuries on the person of Kabul Singh could be caused by a single blow.This contention, even if accepted, in out opinion, would not make much material difference. Three of the accused, according to the prosecution case, were armed with jellis and there is nothing to rule out that each of them gave one blow to the injured witnesses. Assuming that one of the accused with jelli did not cause any injury, that fact would not exculpate him because the conviction of the accused is for the offence under Section 326 read with Section 149, I.P.C. The circumstances of the case indicate that the injuries which were caused to Mehtab Singh, Attar Singh and Kabul Singh were in prosecution of the common object of all theto cause grievous injuries.
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Hindustan Lever Mazdoor Sabha Vs. Hindustan Lever Ltd. & Another | even though Ref. (IT) No. 203 of 1970 was decided against the employees concerned, still the cause of action to claim the implementation of the said agreement or settlement had arisen for the first time after the decision given by the Honble Supreme Court of India in CA No. 1865 of 1982 dated 5-1-1984. Therefore, the complaint filed on 4-4-1984 cannot be said to be barred by limitation at all. Had the Honble Supreme Court not declared the correspondence (Annexure A) to be agreement in between the parties, the controversy about the field force, being not workmen had already come to an end. The judgment of the Supreme Court does not give any cause of action to the first respondent. The Supreme Court only interpreted the three letters and affirmed the rights of the parties emerging from those letters. In other words, the Supreme Court has upheld the view of the first respondent as regards the interpretation of three letters are concerned. Therefore, the observations of the Industrial Court that the Supreme Court judgment gives the first respondent a fresh cause of action cannot be accepted. As we pointed out earlier, the Supreme Court judgment may give some impetus to file the complaint in question before the Industrial Court. It is common knowledge that a judgment of a court will not give a cause of action to a litigant. Cause of action for a litigation arises out of a wrong committed by the opposite party. Moreover, a judgment of a court cannot infuse life to cause of action which was already dead. It is a cardinal principle of law of limitation that once the limitation starts to run nobody can stop it unless and until a competent court stops its running. So also a cause of action once obliterated by operation of law of limitation cannot be rebuilt. In this context we cannot appreciate the finding of the Industrial Court that the non implementation of a settlement is a continuing process. It is clear from the facts of this case, but for the Chitales Award and consequent rejection of the SLP by the Supreme Court, perhaps Industrial Court may be right in making such observations. But when a competent court has given a finding, rightly or wrongly, and the parties have accepted it for a long time, one cannot conceive of a position that it is a continuing wrong. In the absence of a valid explanation for keeping the matter in cold storage for 13 years from 1971 to 1984 the present complaint is barred by limitation before the Industrial Court. As observed by the Industrial Court but for the Supreme Court decision the entire matter would have been considered as closed. Merely because Supreme Court has made the observation first respondent cannot have limitation. As is well known the object of statutes of limitation is founded on public policy. It is to compel the litigants to prosecute their case diligently. Such a policy is necessary to secure quiet and repose of the community. Another consideration is that one should not be complacent on his own rights. The old maxim interest reipublicae ut sit finis litium is quite relevant in these days also. A party who is insensible to his remedies or who does not assert his own claims with promptitude has no right to seek the aid of the State. When we closely watch the conduct of the first respondent it can be seen that there was no room for any doubt that it has acquiesced on the award of Mr Justice Chitale by keeping silent for a long time. The doctrine of acquiescence is based on the conduct of the parties with knowledge of its legal rights. Acquiescence amounts to absolute or positive waiver of the rights of a person who acquiesced. Though it is quite different from delay or laches, but in the factual context of the case it is very relevant here. If a person having a right, stands by and sees another deal with the right inconsistent with that right and watched it for a considerably long time say, 12 years or more, he cannot afterwards complain. Under Indian Law of Limitation generally even rights over immovable property loses after 12 years where it was not properly exercised. Here the complainant knows that under S.28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, period of 90 days was prescribed for ventilating their grievance. No explanation worth consideration has been put forward by the first respondent. According to us, the Industrial Court committed serious miscarriage of justice in disposing of the issue of limitation. Under the circumstances we have no doubt that the complaint of the first respondent is barred by limitation. 4. We have heard learned counsel for the parties. We are of the view that the High Court was not justified in reversing the finding of the Tribunal on the issue of limitation. It is obvious from the above quoted reasoning of the High Court that it proceeded primarily on the events which happened during the period from 1975 to 1984. The High Court has taken the history of the events during the said period of about 10 years as the basis for reaching the conclusion that the complaint was barred by limitation. We are of the view that the High Court failed to appreciate the effect of this Courts judgment delivered in the year 1984. The said dismissal (sic decision) gave a fresh cause of action to the complainant to agitate the matter which was unilaterally blocked by the management by its order of June 1975. We have given our thoughtful consideration to the reasoning of the Industrial Tribunal and also that of the High Court. We have no hesitation in holding that we agree with the reasoning of the Industrial Tribunal and we hold that the High Court was not justified in reversing the well reasoned order of the Tribunal on the issue of limitation. | 1[ds]We are of the view that the High Court was not justified in reversing the finding of the Tribunal on the issue of limitation. It is obvious from the above quoted reasoning of the High Court that it proceeded primarily on the events which happened during the period from 1975 to 1984. The High Court has taken the history of the events during the said period of about 10 years as the basis for reaching the conclusion that the complaint was barred by limitation. We are of the view that the High Court failed to appreciate the effect of this Courts judgment delivered in the year 1984. The said dismissal (sic decision) gave a fresh cause of action to the complainant to agitate the matter which was unilaterally blocked by the management by its order of June 1975. We have given our thoughtful consideration to the reasoning of the Industrial Tribunal and also that of the High Court. We have no hesitation in holding that we agree with the reasoning of the Industrial Tribunal and we hold that the High Court was not justified in reversing the well reasoned order of the Tribunal on the issue of limitation. | 1 | 2,669 | 211 | ### Instruction:
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even though Ref. (IT) No. 203 of 1970 was decided against the employees concerned, still the cause of action to claim the implementation of the said agreement or settlement had arisen for the first time after the decision given by the Honble Supreme Court of India in CA No. 1865 of 1982 dated 5-1-1984. Therefore, the complaint filed on 4-4-1984 cannot be said to be barred by limitation at all. Had the Honble Supreme Court not declared the correspondence (Annexure A) to be agreement in between the parties, the controversy about the field force, being not workmen had already come to an end. The judgment of the Supreme Court does not give any cause of action to the first respondent. The Supreme Court only interpreted the three letters and affirmed the rights of the parties emerging from those letters. In other words, the Supreme Court has upheld the view of the first respondent as regards the interpretation of three letters are concerned. Therefore, the observations of the Industrial Court that the Supreme Court judgment gives the first respondent a fresh cause of action cannot be accepted. As we pointed out earlier, the Supreme Court judgment may give some impetus to file the complaint in question before the Industrial Court. It is common knowledge that a judgment of a court will not give a cause of action to a litigant. Cause of action for a litigation arises out of a wrong committed by the opposite party. Moreover, a judgment of a court cannot infuse life to cause of action which was already dead. It is a cardinal principle of law of limitation that once the limitation starts to run nobody can stop it unless and until a competent court stops its running. So also a cause of action once obliterated by operation of law of limitation cannot be rebuilt. In this context we cannot appreciate the finding of the Industrial Court that the non implementation of a settlement is a continuing process. It is clear from the facts of this case, but for the Chitales Award and consequent rejection of the SLP by the Supreme Court, perhaps Industrial Court may be right in making such observations. But when a competent court has given a finding, rightly or wrongly, and the parties have accepted it for a long time, one cannot conceive of a position that it is a continuing wrong. In the absence of a valid explanation for keeping the matter in cold storage for 13 years from 1971 to 1984 the present complaint is barred by limitation before the Industrial Court. As observed by the Industrial Court but for the Supreme Court decision the entire matter would have been considered as closed. Merely because Supreme Court has made the observation first respondent cannot have limitation. As is well known the object of statutes of limitation is founded on public policy. It is to compel the litigants to prosecute their case diligently. Such a policy is necessary to secure quiet and repose of the community. Another consideration is that one should not be complacent on his own rights. The old maxim interest reipublicae ut sit finis litium is quite relevant in these days also. A party who is insensible to his remedies or who does not assert his own claims with promptitude has no right to seek the aid of the State. When we closely watch the conduct of the first respondent it can be seen that there was no room for any doubt that it has acquiesced on the award of Mr Justice Chitale by keeping silent for a long time. The doctrine of acquiescence is based on the conduct of the parties with knowledge of its legal rights. Acquiescence amounts to absolute or positive waiver of the rights of a person who acquiesced. Though it is quite different from delay or laches, but in the factual context of the case it is very relevant here. If a person having a right, stands by and sees another deal with the right inconsistent with that right and watched it for a considerably long time say, 12 years or more, he cannot afterwards complain. Under Indian Law of Limitation generally even rights over immovable property loses after 12 years where it was not properly exercised. Here the complainant knows that under S.28 of the Maharashtra Recognition of Trade Unions and Prevention of Unfair Labour Practices Act, 1971, period of 90 days was prescribed for ventilating their grievance. No explanation worth consideration has been put forward by the first respondent. According to us, the Industrial Court committed serious miscarriage of justice in disposing of the issue of limitation. Under the circumstances we have no doubt that the complaint of the first respondent is barred by limitation. 4. We have heard learned counsel for the parties. We are of the view that the High Court was not justified in reversing the finding of the Tribunal on the issue of limitation. It is obvious from the above quoted reasoning of the High Court that it proceeded primarily on the events which happened during the period from 1975 to 1984. The High Court has taken the history of the events during the said period of about 10 years as the basis for reaching the conclusion that the complaint was barred by limitation. We are of the view that the High Court failed to appreciate the effect of this Courts judgment delivered in the year 1984. The said dismissal (sic decision) gave a fresh cause of action to the complainant to agitate the matter which was unilaterally blocked by the management by its order of June 1975. We have given our thoughtful consideration to the reasoning of the Industrial Tribunal and also that of the High Court. We have no hesitation in holding that we agree with the reasoning of the Industrial Tribunal and we hold that the High Court was not justified in reversing the well reasoned order of the Tribunal on the issue of limitation.
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We are of the view that the High Court was not justified in reversing the finding of the Tribunal on the issue of limitation. It is obvious from the above quoted reasoning of the High Court that it proceeded primarily on the events which happened during the period from 1975 to 1984. The High Court has taken the history of the events during the said period of about 10 years as the basis for reaching the conclusion that the complaint was barred by limitation. We are of the view that the High Court failed to appreciate the effect of this Courts judgment delivered in the year 1984. The said dismissal (sic decision) gave a fresh cause of action to the complainant to agitate the matter which was unilaterally blocked by the management by its order of June 1975. We have given our thoughtful consideration to the reasoning of the Industrial Tribunal and also that of the High Court. We have no hesitation in holding that we agree with the reasoning of the Industrial Tribunal and we hold that the High Court was not justified in reversing the well reasoned order of the Tribunal on the issue of limitation.
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Ballarpur Collieries Company Vs. State Industrial Court | is in fact no managerial inquiry worth the name in this case. This is what the Appellate Tribunal has also pointed out, and we think rightly. This is also borne out by the fact that before the industrial tribunal the appellant examined a number of witnesses which would have been unnecessary if there had been a proper managerial inquiry. It seems from this fact that it was practically accepted before the industrial tribunal that there was no proper managerial inquiry and it was left to the industrial tribunal to decide for itself whether the dismissal of Dhaneswar was justified. In these circumstances, there was no scope for the application of the principles laid down in Indian Iron and Steel Company v. Their workmen [1958 - I L. L. J. 260 (S. C.)] (vide supra) which applies only where a proper managerial inquiry has been held. This contention must therefore be negatived. "(43) REFERENCE in the above case to the decision of Indian Iron and Steel Company case [1958 - I l. L. J. 260 (S. C.)] (vide supra) is also opposite in the instant case. At pp. 269-270 [indian Iron and Steel Company v. Their workmen] the circumstances in which the action taken by the management in dismissing can be challenged and the test or the conditions which justified interference are laid down in the following words :". . . . . . . Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, industrial tribunals have been given the power to see whether the termination of service of a workmen is justified and to give appropriate relief. In cases of dismissal on misconduct, the tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere. (i) when there is a want of good faith, (ii) when there is victimization or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials, the finding is completely baseless or perverse. "(44) IN the instant case, therefore, the jurisdiction of the industrial authorities could not be seriously disputed in view of their finding that the domestic enquiry was vitiated by violation of the principles of natural justice and a further finding of the Assistant Commissioner of Labour that the circumstances in which the show-cause notice came to be issued was not a bona fide action on the part of the petitioner. If the industrial tribunals have come to this decision, we have no reason to feel that the decision regarding violation of the principles of natural justice is in any way erroneous. The ambit of enquiry is certainly then extended. It is then that the petitioner invited the tribunal to adjudicate on the validity or otherwise of the action actually taken by the employer. If the action is then judged on merits and the industrial tribunal came to the conclusions that the action was not justified, in our opinion, the jurisdiction of the industrial tribunal to come to such a conclusion cannot be challenged in view of the pronouncement of the supreme Court already quoted. Now, in the instant case it has been found that there was no occasion for issuance of a lawful order and respondent 3 disobeying it because respondent 3 was genuinely under the impression that his services were terminated as a result of the talk with the junior partner on 22 June, 1959. There was no occasion for disobeying the order after 1 July, 1959 till 10 July, 1959, because nobody gave him work. A stenographer cannot work unless work is entrusted to him such as dictation or typing. The third charge levelled, i. e. , an attempt to cheat the company which, as we have shown above, could not possibly be levelled when respondent 3 had disclaimed and right to wages or salary for the period from 1 July, 1959 to 10 July, 1959, when he had marked his attendance. Marking of attendance also showed that respondent 3 wanted to attend the office and be present in case the employers decided to settle the matter regarding compensation. The fact that he had applied for leave of absence for sickness or for some other work does not negative his contention that he considered himself as no longer on duty because of the talk between him and the junior partner. Even assuming that the impression was erroneous, it is insufficient to charge responded 3 with any criminal intent or with deliberate act of violation of his duty or disobeying of a lawful order. We, therefore, do not see how the findings of the tribunal on merits also can be challenged by the petitioner in the instant case. They are findings of fact and if the tribunals have come to those findings in legitimate exercise of powers, the jurisdiction of this Court cannot be invoked in challenging those findings because a different view may possibly be taken. Even assuming that there is scope for a difference of opening as to the view to be taken about the action taken, this is not the forum in which the petitioner can agitate the findings of the two industrial tribunals. We, therefore, hold that the industrial courts below cannot be said to have exceeded their jurisdiction in coming to the conclusion that there was no justification for the petitioner to pass the order dated 31 July, 1939, dismissing respondent 3 from service for the alleged misconduct attributed to him.(45) IN view of these conclusions there is no scope for interference with the orders of the two authorities below. The Assistant Commissioner of Labour, instead of ordering reinstatement, has only directed compensation to be paid to respondent 3. No arguments were addressed as to the quantum of compensation or the basis on which it was to be paid. | 0[ds](20) WE propose to deal with each of the points in the same order. It is undoubtedly true that theat any rate, its head office at Nagpur, is registered under the provisions of the Central Provinces and Berar Shops and Establishments Act, 1947. Under that Act, either a commercial establishment or a shop is required to be registered as such. It was not clear during arguments whether the petitioners head office was registered as a commercial establishment or as a shop. A commercial establishment under the Shops and Establishments Act means an establishment which is not a shop but which carries on the business of advertising, commission agency, forwarding or commercial agency, or which is a clerical department of a factory or of any industrial or commercial undertaking, or which is an insurance company,company, bank brokers office, exchange, or such other class of establishment as the Provincial government may, by notification, declare to be a commercial establishment for the purpose of this Act. Shop, on the other hand, is defined as any premises where goods are sold either by retail or wholesale or both or where services are rendered to customers, and includes offices,godowns or warehouses, whether in the same premises or otherwise, used in connexion with such trade or business but does not include a restaurant, anor a commercial establishment, or a shop attached to a factory where the persons employed in the shop are allowed the benefits provided for workers under the Factories Act. It does not appear that any goods are sold in the head office as such though orders may have been received for the supply of coal and in that sense the business of selling or supplying coal products from the mines owned by themay be carried on. Perhaps the business done by the head office is more consistent with its description as commercial agency or more appropriately a clerical department of any industrial or commercial undertaking. The petitioner has itself averred that it owned coal mines and that it did the business of raising, supplying and selling ofis not possible to accept this contention urged on behalf of the petitioner. That this is not the effect of the Shops and Establishments Act is clear while we compare the aim and object and the ambit of the legislation which is to regulate the conditions of work and employment in shops, commercial establishments, restaurants,theatres and other establishments. The Act purports to regulate relationship of employer and employee in what are called commercial employments. On the other hand, the provisions of the Industrial Disputes Act which was passed by Parliament or the Industrial Disputes Settlement Act which was passed by the State legislature covered altogether a different field and much wider area. They govern all the relations between the employer and employee in an industrial employment and in effect lay down conditions of service over and above what are determined by a contract of service between an employer and employee. Whereas the purpose of the Shops and Establishments Act is limited, the object with which the legislation such as the Industrial Disputes Act of 1947 is put on the statute book and amended from time to time clearly shows that it covers a wider field of industrial relations and is mainly for adjudication and determination of industrial and labour disputes. A perusal of the provisions of the Shops and Establishments Act shows that there is no means or machinery or forum before which a dispute by an employee who is dismissed under S. 23, even assuming that the dismissal was improper or wrong, can be taken under the Shops and Establishments Act. What S. 23 provides is a limited security against dismissal from service, except for misconduct, after one months notice or one months wages in lieu of notice. This safeguard which is provided in S. 23 is of a very limited character and no other provision of the Act can be pointed out to show that the general relations between the employer and employee and the rights and obligations of one partythe other are regulated or governed by any other provisions of this Act. On the other hand, the provisions of the State or the Central Industrial Disputes Act govern the totality of relationship between the employer and employee. When the employment is of an industrial character, it may well be that the employee who may be said to be governed by the Shops and Establishments Act also comes to be governed by the legislation regarding the industrial employment and the relationship between the employer and employee in the industrial field. Such overlapping of jurisdiction or field regarding relationship between the employer and employee when the employment partakes of both the characters, namely, commercial employment and industrial employment, is not excluded by any provisions of the Shops and establishments Act. We are, therefore, clear that the mere fact that the head office of theis registered under the Shops and Establishments Act, either as a commercial establishment or as a shop, will not exclude the application of the provisions of the Industrial disputes Act or the Central Provinces and Berar Industrial Disputes Settlement Act, if they are otherwise applicable to theWe, therefore, find it difficult to accept the contention urged on behalf of theis not disputed that the head office is a part of integrated activity of thewhich carries on the business of producing coal and its sale and supply to its various customers. The employees in the head office admittedly are liable to be sent for work at the mines, though in the office there, and vice versa, the activities of the employees in the head office are intimately connected with the activities of the company at the mines where coal is produced dressed and made marketable by some process there. The company has its own independent standing orders possibly under the Standing Orders Act, 1946, to govern the activities of its employees at the mines. It was not clear whether those standing orders have also been settled under the State Act. It is stated that those were settled under the Central Act, namely, Standing Orders Act,is thus clear that unless there is a notification by the Provincial government bringing into force all or any of the provisions of the central Provinces and Berar Industrial Disputes Settlement Act, 1947, in particular industry or in particular area, rest of the provisions will not apply to that industry. Such notification was issued by the Provincial Government of the Central Provinces and Berar on 20 November,is pointed out that whenever an objection is taken to the jurisdiction of a tribunal, it is advisable that that question should be decided by giving reasons and not merely pronounce its ruling without reasons. We find there is sufficient force in this complaint and the tribunals should be well advised to bear in mind that whenever any objection to the jurisdiction of the tribunal is raised by one party or the other and the tribunal decides that question as a preliminary issue, which is generally done, the finding as to the jurisdiction or want of it must be followed by reasons. If the tribunal finds it has that Jurisdiction, it will proceed with the matter. On the other hand, if it has no jurisdiction, it is always open to the party against whom the decision is given to challenge the finding by appropriate proceedings in higher tribunal. Even though the Assistant Commissioner of Labour ruled on 26 March, 1960, that he had jurisdiction under S. 16 of the Central Provinces and Berar Industrial Disputes Settlement act, reasons were available only as an annexure to the final order passed by the Assistant commissioner of Labour on 16 August,the ambit of exclusion of an industry of mines does not include a mining industry as a whole, according to Sri Thakur, the distinction will be without any difference. If this contention is correct, then we have no doubt that the head office of thewhich is an integral part of the mining industry conducted by the company, and which according to the petitioner is excluded by the notification of the Provincial government from the provisions of the Central Provinces and Berar Industrial Disputes settlement act, would automatically be excluded from the operation of thisis meant is that the list does not describe as banking industry, cement industry, coal industry, etc. ; the item mentions only the product or the activity and yet all these are described as industries which are to be declared as public utilityTHE argument was that the words "industrial dispute" used in S. 2 (a) (i) necessarily take us to the definition of "industry" in S. (2) (j) and "industrial dispute" takes us to the definition of "workman" and the definition of "workman" brings us to the definition of "industry" in S. 2 (j). Therefore, in construing the clause "an industrial dispute concerning a mine" in S. 2 (a) (i) one cannot avoid bringing in the wide definition of "industry" in S. 2 (j) and in the light of the said definition, a mine means the industry of mining and that would include the head office which exercises general supervision over the mining operations of a company thought it may be situated far away from the place where the said operations areour opinion, the interpretation that is put on S. 2 (a) (i) of the Central act in the decision of the Supreme Court must guide the interpretation to be put on the item "mines" in the notification issued by the Provincial Government under S. 1 (3) of the Central provinces and Berar Industrial Disputes Settlement Act. It must, therefore, be held that what is excluded from the operation of the provisions of the Act are no doubt operations connected with an industry but those operations only which are connected with the industry of mining or operations in the mine or excavation in the mine and not other operations or activities which govern a much larger area if the item were "mining industry" as aWE are, therefore, asked by the learned counsel for the respondent to hold that, in view of the notification of the Provincial Government excluding not the mining industry but only the industry in mines; it is not possible to construe the notification as excluding the head office which is connected with the mining industry of theand, therefore, must be held as an employment in the industry governed by the Act. It has also to be observed that the notification applied to all the industries except four which are excluded in the items given in the notification. Thus all the activities in the mining industry of the petitioner including the head office, which is an integral part of the industry, are within the Act but the activities in the mine or actual mining operations are alone excluded from the provisions of the Act.It has been noticed in several decisions of this Court and other Courts that the word "industry", either in the State Act or in the Central Act, is very wide and it includes any business, trade, manufacturing or mining undertaking or calling of employers, or any calling, service employment, handicraft or industrial occupation or avocation of employees, and any branch of an industry or a group ofwould have been considerable force in this submission were it not for the fact that the head office is not an isolated office of theThe work done in the head office is an integral part of the business carried on by thewhich has undertaken mining as its business. Now, the undertaking, or the work of producing coal or winning coal, putting it in market for sale and supply to the customers is obviously an industry within the meaning of S. 2 (14) of the Central provinces and Berar Industrial Disputes Settlement Act. The work done by the employees, in the head office of such an undertaking, is a part and parcel of the industrial activity carried on by theIn fact, the petitioner has not disputed that the work done in the head office is intimately connected with its mining undertaking in as much as it books orders for supply of coal, distributes orders and sees that the orders are complied with by the despatch of goods from its coal mines. If that be the case and the nature of the activity carried on at the head office, it cannot be disputed that respondent 3 and other employees are engaged in an industry. We, therefore, hold that respondent 3 must be considered to be an employee engaged in an industry carried on by theand the mere fact that respondent 3 is employed in the head office will not avail the petitioner to contend that it is not governed by the provisions of the central Provinces and Berar Industrial Disputes Settlementlong, therefore, as the action taken against respondent 3 is not in contravention of the provisions of the Act or in contravention of the standing order framed under the Act, it cannot be said that S. 16 (3) is violated by the petitioner. It is an admitted position that there are no standing orders framed governing the employment of personnel in the head office of theTherefore, no question of violation of the standing orders or the action being contrary to the standing orders would arise. To that extent the observations of the Assistant labour Commissioner in Para. 20 of the order are not tenable in view of the decisions of theled that every termination of service is not retrenchment unless retrenchment is made because the employer considers the labour force to be surplus and the retrenchment is brought about to reduce the quantum of labourit is difficult to accept this contention. The Shops and establishments Act does not provide for the manner in which an order of dismissal may be brought about in respect of an employee whose conditions of service are governed by the industrial Disputes Act, 1947. Even though a dismissal may be justified, it has to be brought about by the process known to law or the conditions of service by which the parties are governed. It is not possible to accept the interpretation put on S. 23 of the Shops and establishments Act by the learned counsel for the petitioner if the contention is that there can be dismissal contrary to conditions of service provided only one months notice or one months wages in lieu thereof is given. The first condition that has to be satisfied is that the dismissal has to be according to law. For the dismissal to be according to law, the law to which reference need be made is the law by which the relations between the employer and the employee are governed in a given case and that law in this case is the Industrial Disputes Act, 1947. It is nowthat even if an employer is entitled to dismiss an employee for misconduct, it has to be preceded by a proper enquiry and the manner of conducting that enquiry must not disregard the accepted principles of natural justice. That this is a sine qua non of taking action of dismissal against an employee is nowand reference need only be made to a few decisions.Under the circumstances it was held that the enquiry which resulted in the dismissal of the employee was violative of theprinciples of natural justice and must be quashed. We, therefore, hold that the action taken by the petitioner in dismissing respondent 3 will still have to satisfy the condition of a fair and impartial enquiry in which adequate opportunity has been given to the employee concerned before the action of dismissal or termination of his services for misconduct is taken and if that condition is not satisfied, then it cannot be said that the action taken is still within the Act to which no challenge can be made by respondent 3 under S. 16 of the Central Provinces and Berar Industrial Disputes SettlementTHE petitioner has also disputed that the principles of natural justice as found by the two authorities below were not violated or at any rate they are substantially complied with. The complaint in this regard by respondent 3 was that he was not given a copy of the report made by the enquiry officer before action of dismissal was taken against him and that he was not allowed an opportunity to examine the witnesses. It is urged with reference to this complaint that respondent 3 himself admitted before the Assistant Commissioner of Labour that he had no witnesses of his own to examine; that he did not put any questions into Sri kanade; that he was offered inspection of documents produced at the enquiry; that the enquiry officer had asked him to take notes and not to make copies of the documents; that he did not take notes; that he had not himself submitted a list of documents to be submitted or produced at the enquiry. In view of these admissions at p. 147 of the paper book it is urged that the complaint made in Para. 9 of the application before the Assistant Commissioner of Labour was really unfounded.(39) IT is not seriously disputed now that a copy of the enquiry officers findings was not furnished to respondent 3, though it was suggested in the written statement before the Assistant commissioner of Labour that such a copy was supplied. We have, therefore, to see whether the petitioner has established that it had sufficiently complied with the principles of natural justice in the conduct of the enquiry and in taking action of dismissal against respondent 3. The gravamen of the charge against respondent 3 was, firstly, that he had disobeyed the lawful order given by sri Kothekar on 1 July, 1959, to take some dictation or type some documents, secondly, that he refused to work and neglected his duty between 1 July, 1959 and 10 July, 1959, though he attended the office, and thirdly, that his deliberate marking of the attendance register was with a view to claim salary for those days though he did not work and this was in effect an attempt to cheat theThe defence of respondent 3 was that he had no doubt told Sri kothekar that he could not work or take dictation unless the officer of the company had asked him, because he was told by the junior partner as far back as 22 June, 1959, that his services were no longer required. Respondent 3 has categorically stated that nobody asked him to work after 1 July, 1959. The defence regarding the third charge is that, far from having any idea of claiming wages without work and, therefore, attempting to cheat the company, the sole purpose with which he had marked the attendance register was that his presence should be noticed, so that if his claims were to be settled, the authority may know that he was present in office and that he was not claiming anything by way of salary or wages for that period. We should have thought, as was rightly observed by the Assistant Commissioner of Labour, that the complainant in the case in respect of the first charge was Sri Kothekar. Similarly, the best person to refuse the statement of respondent 3, that he had reasonable ground to feel that his services were terminated by the talk between Sri Sunderlal and himself on 22 June, 1959, would be Sri Sunderlal himself. By a curious process of reasoning therest content with having Sri Kanade, personnel officer, make a statement or dictate a statement and answered some queries by the enquiry officer to prove the allegations in the charges issued to respondent 3. When respondent 3 was disputing that he had disobeyed his order and was contenting that he was given to understand that his services were dispensed with effect from 1 July, 1959, it is difficult to see how the company expected to establish the charge without examining Sri Kothekar or Sri sunderlal, junior partner. Apart from this lacuna in substantiating the charge on the principal count, respondent 3 had expressly stated in his written statement, dated 19 July, 1959, that he wanted certain witnesses whose names were given in the list to beIt is undoubtedly true that all these persons were either employers or their employees and none of them could be produced by respondent 3. Yet the enquiry officer took the view that there was no question of summoning any witnesses and he has justified this action on his view that the manner in which the list was headed as the list of witnesses given under protest made the whole prayer ridiculous. It would appear to be the view of the enquiry officer that such procedure was unknown and, therefore, respondent 3 was not entitled to have anybody produced forHere again we fail to see how the least that could be done to ensure fairness in the enquiry by the enquiry officer, namely, by producing before him Sri Kothekar or the junior partner, for being questioned by respondent 3 to elicit answers, was not appreciated by the enquiry officer. Respondent 3 has been denied this opportunity which he could avail to show that he had never any intention of disobeying Sri Kothekar, that if he declined to work it was under the bona fide impression that his services were terminated and also to show that his talk with Sri sunderlal was such as to lead to an inference that respondent 3s services were no longer required after 1 July, 1959. Such admissions as have been made by Sri Kanade in reply to the questions themselves show that a talk did take place between the junior partner and respondent 3 and if that talk related to respondent 3s voluntary resigning subject of course to some compensation which was accepted by respondent 3, it is not possible to hold that respondent 3 was labouring under any hallucination that his services were terminated with effect from 1 July, 1959. In this connexion it is contended that in his application before the State industrial court respondent 3 had stated that his services were terminated from 22 June, 1959. It is not possible to read this meaning in the statement. In that application respondent 3 has nowhere stated that he considered that his services were terminated with effect from 22 June, 1959. In fact his conduct in continuing in service and doing the work till 30 June, 1959, must necessarily show that the impression which respondent 3 carried was that his services were to be terminated from 1 July, 1959, as a result of the talk with the junior partner on 22 June, 1959. We have not been shown any statement of respondent 3 anywhere that he considered that his services were terminated with effect from 22 June, 1959. Similarly, with respect to the second charge, there is no evidence whatever to show that respondent 3 was in fact given any work and that he refused to do that work, and yet the enquiry officer came to the conclusion that respondent 3 was guilty of that charge also. Similarly, with respect to the third charge, it is difficult to see how respondent 3 could be charged with any criminal intent to deceive the company merely because respondent 3 made entries about his presence in the attendance register. It seems to us that thewas persuaded to take this view of the act of respondent 3 in marking his presence because of certain impressions of the personnel officer. The personnel officer has stated that in his opinion under the provisions of the Shops and Establishments Act the moment the employees make entries in the register the employer is compelled under the law to pay their wages. We asked the learned counsel to show any provision of the Act or any other law which creates such a legal obligation to pay an employee even though no work is down merely because he has made his signature in the attendance register. In this aspect of the matter, in our opinion, the finding of the two authorities below, that far from there being any criminal intent on the part of respondent 3 to claim wages and cheat the company, the object of respondent 3 may only be to show that he was physically present in the office so that if the employer intended to square up the matter regarding compensation which he expected may be settled, cannot be challenged. In this connexion reference may also be usefully made to the statements which respondent 3 submitted on 30 June, 1959, to the junior partner and another on 10 July, 1959, to the managing director claiming certain amount of compensation payable to him. In making such a claim he has not claimed anything after 1 July, 1959 and he has calculated the wages paid up to 30 June, 1959. It is also established on record that respondent 3 was working in the office till 30 June, 1959. In view of these circumstance and facts patent on record, it is difficult to see how the enquiry officer could have come to the conclusion that respondent 3 was entertaining criminal intent to cheat the company in making entries about his presence in the attendance register. We, therefore, hold agreeing with the two authorities below that the manner in which the enquiry was conducted has clearly violated theand by now universally recognized principles of natural justice. We fail to see why respondent 3 should not have been given a copy of the findings of the enquiry officer before the drastic action of dismissal was taken by the employer in this case. We may also mention that the enquiry officer was persuaded to accept on record the statements alleged to be prepared one by Sri Kothekar and another by Sri Joshi. Copies of these statements were not made available to respondent 3 as they mere filed on the last date of the enquiry, i. e. , on 23 July, 1959. Use has been made of these statements by the enquiry officer in coming to the conclusion that Sri Kothekar did issue a lawful order which was disobeyed by respondentonce the petitioner takes the position that there may be defects in the enquiry and leaves it to the tribunal to adjudge the validity of its action, the jurisdiction of the industrial tribunal at once enlarges and the tribunal also constitutes itself into a tribunal to adjudge, as a tribunal of fact, whether there was enough material and justification for the action taken against a particular employee. That there is such power in the industrial tribunal is now authoritatively decided by the pronouncement of the supreme Court to which reference may beREFERENCE in the above case to the decision of Indian Iron and Steel Company case [1958I l. L. J. 260 (S. C.)] (vide supra) is also opposite in the instantIN the instant case, therefore, the jurisdiction of the industrial authorities could not be seriously disputed in view of their finding that the domestic enquiry was vitiated by violation of the principles of natural justice and a further finding of the Assistant Commissioner of Labour that the circumstances in which thenotice came to be issued was not a bona fide action on the part of the petitioner. If the industrial tribunals have come to this decision, we have no reason to feel that the decision regarding violation of the principles of natural justice is in any way erroneous. The ambit of enquiry is certainly then extended. It is then that the petitioner invited the tribunal to adjudicate on the validity or otherwise of the action actually taken by the employer. If the action is then judged on merits and the industrial tribunal came to the conclusions that the action was not justified, in our opinion, the jurisdiction of the industrial tribunal to come to such a conclusion cannot be challenged in view of the pronouncement of the supreme Court already quoted. Now, in the instant case it has been found that there was no occasion for issuance of a lawful order and respondent 3 disobeying it because respondent 3 was genuinely under the impression that his services were terminated as a result of the talk with the junior partner on 22 June, 1959. There was no occasion for disobeying the order after 1 July, 1959 till 10 July, 1959, because nobody gave him work. A stenographer cannot work unless work is entrusted to him such as dictation or typing. The third charge levelled, i. e. , an attempt to cheat the company which, as we have shown above, could not possibly be levelled when respondent 3 had disclaimed and right to wages or salary for the period from 1 July, 1959 to 10 July, 1959, when he had marked his attendance. Marking of attendance also showed that respondent 3 wanted to attend the office and be present in case the employers decided to settle the matter regarding compensation. The fact that he had applied for leave of absence for sickness or for some other work does not negative his contention that he considered himself as no longer on duty because of the talk between him and the junior partner. Even assuming that the impression was erroneous, it is insufficient to charge responded 3 with any criminal intent or with deliberate act of violation of his duty or disobeying of a lawful order. We, therefore, do not see how the findings of the tribunal on merits also can be challenged by the petitioner in the instant case. They are findings of fact and if the tribunals have come to those findings in legitimate exercise of powers, the jurisdiction of this Court cannot be invoked in challenging those findings because a different view may possibly be taken. Even assuming that there is scope for a difference of opening as to the view to be taken about the action taken, this is not the forum in which the petitioner can agitate the findings of the two industrial tribunals. We, therefore, hold that the industrial courts below cannot be said to have exceeded their jurisdiction in coming to the conclusion that there was no justification for the petitioner to pass the order dated 31 July, 1939, dismissing respondent 3 from service for the alleged misconduct attributed to him.(45) IN view of these conclusions there is no scope for interference with the orders of the two authorities below. The Assistant Commissioner of Labour, instead of ordering reinstatement, has only directed compensation to be paid to respondent 3. No arguments were addressed as to the quantum of compensation or the basis on which it was to be paid. | 0 | 16,978 | 5,535 | ### Instruction:
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is in fact no managerial inquiry worth the name in this case. This is what the Appellate Tribunal has also pointed out, and we think rightly. This is also borne out by the fact that before the industrial tribunal the appellant examined a number of witnesses which would have been unnecessary if there had been a proper managerial inquiry. It seems from this fact that it was practically accepted before the industrial tribunal that there was no proper managerial inquiry and it was left to the industrial tribunal to decide for itself whether the dismissal of Dhaneswar was justified. In these circumstances, there was no scope for the application of the principles laid down in Indian Iron and Steel Company v. Their workmen [1958 - I L. L. J. 260 (S. C.)] (vide supra) which applies only where a proper managerial inquiry has been held. This contention must therefore be negatived. "(43) REFERENCE in the above case to the decision of Indian Iron and Steel Company case [1958 - I l. L. J. 260 (S. C.)] (vide supra) is also opposite in the instant case. At pp. 269-270 [indian Iron and Steel Company v. Their workmen] the circumstances in which the action taken by the management in dismissing can be challenged and the test or the conditions which justified interference are laid down in the following words :". . . . . . . Undoubtedly, the management of a concern has power to direct its own internal administration and discipline; but the power is not unlimited and when a dispute arises, industrial tribunals have been given the power to see whether the termination of service of a workmen is justified and to give appropriate relief. In cases of dismissal on misconduct, the tribunal does not, however, act as a Court of appeal and substitute its own judgment for that of the management. It will interfere. (i) when there is a want of good faith, (ii) when there is victimization or unfair labour practice, (iii) when the management has been guilty of a basic error or violation of a principle of natural justice, and (iv) when on the materials, the finding is completely baseless or perverse. "(44) IN the instant case, therefore, the jurisdiction of the industrial authorities could not be seriously disputed in view of their finding that the domestic enquiry was vitiated by violation of the principles of natural justice and a further finding of the Assistant Commissioner of Labour that the circumstances in which the show-cause notice came to be issued was not a bona fide action on the part of the petitioner. If the industrial tribunals have come to this decision, we have no reason to feel that the decision regarding violation of the principles of natural justice is in any way erroneous. The ambit of enquiry is certainly then extended. It is then that the petitioner invited the tribunal to adjudicate on the validity or otherwise of the action actually taken by the employer. If the action is then judged on merits and the industrial tribunal came to the conclusions that the action was not justified, in our opinion, the jurisdiction of the industrial tribunal to come to such a conclusion cannot be challenged in view of the pronouncement of the supreme Court already quoted. Now, in the instant case it has been found that there was no occasion for issuance of a lawful order and respondent 3 disobeying it because respondent 3 was genuinely under the impression that his services were terminated as a result of the talk with the junior partner on 22 June, 1959. There was no occasion for disobeying the order after 1 July, 1959 till 10 July, 1959, because nobody gave him work. A stenographer cannot work unless work is entrusted to him such as dictation or typing. The third charge levelled, i. e. , an attempt to cheat the company which, as we have shown above, could not possibly be levelled when respondent 3 had disclaimed and right to wages or salary for the period from 1 July, 1959 to 10 July, 1959, when he had marked his attendance. Marking of attendance also showed that respondent 3 wanted to attend the office and be present in case the employers decided to settle the matter regarding compensation. The fact that he had applied for leave of absence for sickness or for some other work does not negative his contention that he considered himself as no longer on duty because of the talk between him and the junior partner. Even assuming that the impression was erroneous, it is insufficient to charge responded 3 with any criminal intent or with deliberate act of violation of his duty or disobeying of a lawful order. We, therefore, do not see how the findings of the tribunal on merits also can be challenged by the petitioner in the instant case. They are findings of fact and if the tribunals have come to those findings in legitimate exercise of powers, the jurisdiction of this Court cannot be invoked in challenging those findings because a different view may possibly be taken. Even assuming that there is scope for a difference of opening as to the view to be taken about the action taken, this is not the forum in which the petitioner can agitate the findings of the two industrial tribunals. We, therefore, hold that the industrial courts below cannot be said to have exceeded their jurisdiction in coming to the conclusion that there was no justification for the petitioner to pass the order dated 31 July, 1939, dismissing respondent 3 from service for the alleged misconduct attributed to him.(45) IN view of these conclusions there is no scope for interference with the orders of the two authorities below. The Assistant Commissioner of Labour, instead of ordering reinstatement, has only directed compensation to be paid to respondent 3. No arguments were addressed as to the quantum of compensation or the basis on which it was to be paid.
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certain amount of compensation payable to him. In making such a claim he has not claimed anything after 1 July, 1959 and he has calculated the wages paid up to 30 June, 1959. It is also established on record that respondent 3 was working in the office till 30 June, 1959. In view of these circumstance and facts patent on record, it is difficult to see how the enquiry officer could have come to the conclusion that respondent 3 was entertaining criminal intent to cheat the company in making entries about his presence in the attendance register. We, therefore, hold agreeing with the two authorities below that the manner in which the enquiry was conducted has clearly violated theand by now universally recognized principles of natural justice. We fail to see why respondent 3 should not have been given a copy of the findings of the enquiry officer before the drastic action of dismissal was taken by the employer in this case. We may also mention that the enquiry officer was persuaded to accept on record the statements alleged to be prepared one by Sri Kothekar and another by Sri Joshi. Copies of these statements were not made available to respondent 3 as they mere filed on the last date of the enquiry, i. e. , on 23 July, 1959. Use has been made of these statements by the enquiry officer in coming to the conclusion that Sri Kothekar did issue a lawful order which was disobeyed by respondentonce the petitioner takes the position that there may be defects in the enquiry and leaves it to the tribunal to adjudge the validity of its action, the jurisdiction of the industrial tribunal at once enlarges and the tribunal also constitutes itself into a tribunal to adjudge, as a tribunal of fact, whether there was enough material and justification for the action taken against a particular employee. That there is such power in the industrial tribunal is now authoritatively decided by the pronouncement of the supreme Court to which reference may beREFERENCE in the above case to the decision of Indian Iron and Steel Company case [1958I l. L. J. 260 (S. C.)] (vide supra) is also opposite in the instantIN the instant case, therefore, the jurisdiction of the industrial authorities could not be seriously disputed in view of their finding that the domestic enquiry was vitiated by violation of the principles of natural justice and a further finding of the Assistant Commissioner of Labour that the circumstances in which thenotice came to be issued was not a bona fide action on the part of the petitioner. If the industrial tribunals have come to this decision, we have no reason to feel that the decision regarding violation of the principles of natural justice is in any way erroneous. The ambit of enquiry is certainly then extended. It is then that the petitioner invited the tribunal to adjudicate on the validity or otherwise of the action actually taken by the employer. If the action is then judged on merits and the industrial tribunal came to the conclusions that the action was not justified, in our opinion, the jurisdiction of the industrial tribunal to come to such a conclusion cannot be challenged in view of the pronouncement of the supreme Court already quoted. Now, in the instant case it has been found that there was no occasion for issuance of a lawful order and respondent 3 disobeying it because respondent 3 was genuinely under the impression that his services were terminated as a result of the talk with the junior partner on 22 June, 1959. There was no occasion for disobeying the order after 1 July, 1959 till 10 July, 1959, because nobody gave him work. A stenographer cannot work unless work is entrusted to him such as dictation or typing. The third charge levelled, i. e. , an attempt to cheat the company which, as we have shown above, could not possibly be levelled when respondent 3 had disclaimed and right to wages or salary for the period from 1 July, 1959 to 10 July, 1959, when he had marked his attendance. Marking of attendance also showed that respondent 3 wanted to attend the office and be present in case the employers decided to settle the matter regarding compensation. The fact that he had applied for leave of absence for sickness or for some other work does not negative his contention that he considered himself as no longer on duty because of the talk between him and the junior partner. Even assuming that the impression was erroneous, it is insufficient to charge responded 3 with any criminal intent or with deliberate act of violation of his duty or disobeying of a lawful order. We, therefore, do not see how the findings of the tribunal on merits also can be challenged by the petitioner in the instant case. They are findings of fact and if the tribunals have come to those findings in legitimate exercise of powers, the jurisdiction of this Court cannot be invoked in challenging those findings because a different view may possibly be taken. Even assuming that there is scope for a difference of opening as to the view to be taken about the action taken, this is not the forum in which the petitioner can agitate the findings of the two industrial tribunals. We, therefore, hold that the industrial courts below cannot be said to have exceeded their jurisdiction in coming to the conclusion that there was no justification for the petitioner to pass the order dated 31 July, 1939, dismissing respondent 3 from service for the alleged misconduct attributed to him.(45) IN view of these conclusions there is no scope for interference with the orders of the two authorities below. The Assistant Commissioner of Labour, instead of ordering reinstatement, has only directed compensation to be paid to respondent 3. No arguments were addressed as to the quantum of compensation or the basis on which it was to be paid.
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The Director General of Police & Anr Vs. M Jeyanthi | on the provisions of Rule 35A of the Special Rules of Tamil Nadu Police Subordinate Services (Rules). The order of the DGP was challenged before a learned Single Judge in a writ petition (Writ Petition No 18211 of 2018) which was dismissed by an order dated 21 August 2018. The writ appeal (Writ Appeal No 1596 of 2018) filed by the respondent was, however, allowed. The Division Bench came to the conclusion that in terms of Section 50 of the Tamil Nadu Government Servants (Conditions of Service) Act 2016 (Act of 2016), a period of ninety days notice is necessary. In the view of the High Court, this period of ninety days is intended for the benefit not only of the authority, but for the person who tendered the resignation to rethink whether the resignation should be withdrawn. The High Court found fault with the appellants for having accepted the resignation without waiting for the period of notice to expire and accordingly set aside the decision. Consequently, reinstatement was granted with continuity of service. 5. Learned counsel appearing on behalf of the appellants, at the outset, submits that the High Court has relied on the provisions of Section 50 of the Act of 2016 whereas the respondent was governed by Rule 35A of the Rules. Moreover, it was submitted that the provisions of Section 50(2), which have been extracted in the judgment of the High Court, contained an omission which would have a bearing on the interpretation of the provision. Learned counsel submitted that once the resignation was accepted, it was not open to the respondent to withdraw it. 6. Opposing this submission, it was urged on behalf of the respondent that the acceptance of the resignation on 12 June 2017 was not valid in law since it was subject to the grant of Vigilance and other clearances. Moreover, learned counsel supported the reasoning of the Division Bench that in view of the requirement of ninety days notice, it was open to the employee to withdraw the resignation before the period of notice expired and the acceptance of the resignation in the meantime would not affect that entitlement. 7. The provisions of Rule 35A of the Rules are analogous to Section 50 of the Act of 2016. The respondent, as a police constable, was governed by Rule 35A, which is extracted below: 35A Acceptance of Resignation (a) The member of the service may resign his appointment by giving notice of not less than three months in writing direct to the appointing authority with a copy marked to his immediate Superior Officer. The period of three months notice shall be reckoned from the date of receipt of such notice by the appointing authority. (b) The member of the service may withdraw the notice of his resignation before its acceptance. Withdrawal of resignation will not be permitted after its acceptance by the appointing authority. (c) The appointing authority shall issue orders on the notice of resignation before the date of expiry of notice either accepting the resignation from a date not later than the date of expiry of the notice or rejecting the same, giving the reasons thereof. If no such order is passed, the resignation shall be deemed to have been accepted on the expiry of the period of notice. 8. Clause (a) of Rule 35A requires that before resigning, a member of the service must furnish not less than three months notice in writing to the appointing authority. Under clause (b), the notice may be withdrawn before its acceptance. Withdrawal of the resignation is not permitted after acceptance by the appointing authority. Under clause (c), the appointing authority is required to issue orders on the notice of resignation before the date of expiry of the notice. If the resignation is being accepted, the date of acceptance is not to be later than the date of the expiry of the notice. If no order has been passed, the resignation is deemed to have been accepted on the expiry of the period of notice. The provisions of clauses (b) and (c) of Rule 35A make it abundantly clear that: (i) A resignation can be withdrawn before its acceptance; and (ii) Upon acceptance, the employee loses the entitlement to withdraw the resignation. Moreover, it is evident from clause (c) of Rule 35A that the appointing authority, while accepting the resignation, is empowered to indicate a date from which it will take effect which will not be later than the date of expiry of the notice. In other words, the authority can legitimately accept the resignation from a date anterior to the expiry of the notice. Upon the acceptance of the resignation, the cessation of service takes place and it is not open to the employee to withdraw the resignation. 9. In the present case, as the facts which have been narrated indicate, the resignation dated 1 June 2017 was accepted on 12 June 2017. It was only a month thereafter on 13 July 2017 that the respondent purported to withdraw the resignation. The resignation having taken effect upon its acceptance, the withdrawal was of no consequence. We do not find merit in the submission that the acceptance of the resignation was invalid. The order which was passed clearly indicates the acceptance of the resignation. The order, however, provides that if the Vigilance and Anti Corruption Department indicated that any adverse remarks or if any adverse noting was made by the Special Branch CID, the resignation would be cancelled. The fact of the matter, however, is that the acceptance of the resignation was complete on 12 June 2017. Once this was the position, the withdrawal was of no consequence in law. 10. The High Court was not justified in coming to the conclusion that within a period of ninety days, which is the period of notice required under the Rules, it was open to the employee to withdraw the resignation even after acceptance. This construction is clearly contrary to the provisions of Rule 35A. | 1[ds]Moreover, it is evident from clause (c) of Rule 35A that the appointing authority, while accepting the resignation, is empowered to indicate a date from which it will take effect which will not be later than the date of expiry of the notice. In other words, the authority can legitimately accept the resignation from a date anterior to the expiry of the notice. Upon the acceptance of the resignation, the cessation of service takes place and it is not open to the employee to withdraw the resignation.9. In the present case, as the facts which have been narrated indicate, the resignation dated 1 June 2017 was accepted on 12 June 2017. It was only a month thereafter on 13 July 2017 that the respondent purported to withdraw the resignation. The resignation having taken effect upon its acceptance, the withdrawal was of no consequence. We do not find merit in the submission that the acceptance of the resignation was invalid. The order which was passed clearly indicates the acceptance of the resignation. The order, however, provides that if the Vigilance and Anti Corruption Department indicated that any adverse remarks or if any adverse noting was made by the Special Branch CID, the resignation would be cancelled. The fact of the matter, however, is that the acceptance of the resignation was complete on 12 June 2017. Once this was the position, the withdrawal was of no consequence in law10. The High Court was not justified in coming to the conclusion that within a period of ninety days, which is the period of notice required under the Rules, it was open to the employee to withdraw the resignation even after acceptance. This construction is clearly contrary to the provisions of Rule 35A.7. The provisions of Rule 35A of the Rules are analogous to Section 50 of the Act of 2016. The respondent, as a police constable, was governed by Rule 35AThe provisions of clauses (b) and (c) of Rule 35A make it abundantly clear that:(i) A resignation can be withdrawn before its acceptance; and(ii) Upon acceptance, the employee loses the entitlement to withdraw the resignation. | 1 | 1,380 | 404 | ### Instruction:
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on the provisions of Rule 35A of the Special Rules of Tamil Nadu Police Subordinate Services (Rules). The order of the DGP was challenged before a learned Single Judge in a writ petition (Writ Petition No 18211 of 2018) which was dismissed by an order dated 21 August 2018. The writ appeal (Writ Appeal No 1596 of 2018) filed by the respondent was, however, allowed. The Division Bench came to the conclusion that in terms of Section 50 of the Tamil Nadu Government Servants (Conditions of Service) Act 2016 (Act of 2016), a period of ninety days notice is necessary. In the view of the High Court, this period of ninety days is intended for the benefit not only of the authority, but for the person who tendered the resignation to rethink whether the resignation should be withdrawn. The High Court found fault with the appellants for having accepted the resignation without waiting for the period of notice to expire and accordingly set aside the decision. Consequently, reinstatement was granted with continuity of service. 5. Learned counsel appearing on behalf of the appellants, at the outset, submits that the High Court has relied on the provisions of Section 50 of the Act of 2016 whereas the respondent was governed by Rule 35A of the Rules. Moreover, it was submitted that the provisions of Section 50(2), which have been extracted in the judgment of the High Court, contained an omission which would have a bearing on the interpretation of the provision. Learned counsel submitted that once the resignation was accepted, it was not open to the respondent to withdraw it. 6. Opposing this submission, it was urged on behalf of the respondent that the acceptance of the resignation on 12 June 2017 was not valid in law since it was subject to the grant of Vigilance and other clearances. Moreover, learned counsel supported the reasoning of the Division Bench that in view of the requirement of ninety days notice, it was open to the employee to withdraw the resignation before the period of notice expired and the acceptance of the resignation in the meantime would not affect that entitlement. 7. The provisions of Rule 35A of the Rules are analogous to Section 50 of the Act of 2016. The respondent, as a police constable, was governed by Rule 35A, which is extracted below: 35A Acceptance of Resignation (a) The member of the service may resign his appointment by giving notice of not less than three months in writing direct to the appointing authority with a copy marked to his immediate Superior Officer. The period of three months notice shall be reckoned from the date of receipt of such notice by the appointing authority. (b) The member of the service may withdraw the notice of his resignation before its acceptance. Withdrawal of resignation will not be permitted after its acceptance by the appointing authority. (c) The appointing authority shall issue orders on the notice of resignation before the date of expiry of notice either accepting the resignation from a date not later than the date of expiry of the notice or rejecting the same, giving the reasons thereof. If no such order is passed, the resignation shall be deemed to have been accepted on the expiry of the period of notice. 8. Clause (a) of Rule 35A requires that before resigning, a member of the service must furnish not less than three months notice in writing to the appointing authority. Under clause (b), the notice may be withdrawn before its acceptance. Withdrawal of the resignation is not permitted after acceptance by the appointing authority. Under clause (c), the appointing authority is required to issue orders on the notice of resignation before the date of expiry of the notice. If the resignation is being accepted, the date of acceptance is not to be later than the date of the expiry of the notice. If no order has been passed, the resignation is deemed to have been accepted on the expiry of the period of notice. The provisions of clauses (b) and (c) of Rule 35A make it abundantly clear that: (i) A resignation can be withdrawn before its acceptance; and (ii) Upon acceptance, the employee loses the entitlement to withdraw the resignation. Moreover, it is evident from clause (c) of Rule 35A that the appointing authority, while accepting the resignation, is empowered to indicate a date from which it will take effect which will not be later than the date of expiry of the notice. In other words, the authority can legitimately accept the resignation from a date anterior to the expiry of the notice. Upon the acceptance of the resignation, the cessation of service takes place and it is not open to the employee to withdraw the resignation. 9. In the present case, as the facts which have been narrated indicate, the resignation dated 1 June 2017 was accepted on 12 June 2017. It was only a month thereafter on 13 July 2017 that the respondent purported to withdraw the resignation. The resignation having taken effect upon its acceptance, the withdrawal was of no consequence. We do not find merit in the submission that the acceptance of the resignation was invalid. The order which was passed clearly indicates the acceptance of the resignation. The order, however, provides that if the Vigilance and Anti Corruption Department indicated that any adverse remarks or if any adverse noting was made by the Special Branch CID, the resignation would be cancelled. The fact of the matter, however, is that the acceptance of the resignation was complete on 12 June 2017. Once this was the position, the withdrawal was of no consequence in law. 10. The High Court was not justified in coming to the conclusion that within a period of ninety days, which is the period of notice required under the Rules, it was open to the employee to withdraw the resignation even after acceptance. This construction is clearly contrary to the provisions of Rule 35A.
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Moreover, it is evident from clause (c) of Rule 35A that the appointing authority, while accepting the resignation, is empowered to indicate a date from which it will take effect which will not be later than the date of expiry of the notice. In other words, the authority can legitimately accept the resignation from a date anterior to the expiry of the notice. Upon the acceptance of the resignation, the cessation of service takes place and it is not open to the employee to withdraw the resignation.9. In the present case, as the facts which have been narrated indicate, the resignation dated 1 June 2017 was accepted on 12 June 2017. It was only a month thereafter on 13 July 2017 that the respondent purported to withdraw the resignation. The resignation having taken effect upon its acceptance, the withdrawal was of no consequence. We do not find merit in the submission that the acceptance of the resignation was invalid. The order which was passed clearly indicates the acceptance of the resignation. The order, however, provides that if the Vigilance and Anti Corruption Department indicated that any adverse remarks or if any adverse noting was made by the Special Branch CID, the resignation would be cancelled. The fact of the matter, however, is that the acceptance of the resignation was complete on 12 June 2017. Once this was the position, the withdrawal was of no consequence in law10. The High Court was not justified in coming to the conclusion that within a period of ninety days, which is the period of notice required under the Rules, it was open to the employee to withdraw the resignation even after acceptance. This construction is clearly contrary to the provisions of Rule 35A.7. The provisions of Rule 35A of the Rules are analogous to Section 50 of the Act of 2016. The respondent, as a police constable, was governed by Rule 35AThe provisions of clauses (b) and (c) of Rule 35A make it abundantly clear that:(i) A resignation can be withdrawn before its acceptance; and(ii) Upon acceptance, the employee loses the entitlement to withdraw the resignation.
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Reena Suresh Alhat Vs. State Of Maharashtra And Anr | Chelameswar, J.1. Permission to file Special Leave Petition is granted.2. These two matters arise out of Maharashtra Municipal Corporation Act, 1949 (Act No. 59 of 1949). Petitioners in these two SLPs are candidates at the ongoing Elections to the Municipal Corporation of Pune.3. Aggrieved by certain action taken by the respondents, two writ petitions came to be filed in the High Court of Bombay, one by the petitioner in SLP (Civil) ... CC No. 3350 of 2017 and the other by respondent no.4 in SLP (Civil) No.5014 of 2017.4. Reena Suresh Alhats nomination was rejected by an order dated 4.2.2017. She challenged the rejection of her nomination by a writ petition. The writ petition was dismissed by the High Court by an order under challenge dated 7.2.2017 on the twin grounds of a constitutional bar and the existence of an alternative remedy.5. In the case of Reshma Anil Bhosale, the dispute is regarding the allotment of a symbol. The petitioner claimed to be a candidate sponsored by the Bharatiya Janata Party. The said symbol was allotted to the petitioner by an order of the respondent dated 8.2.2017. One of the contesting candidates questioned the allotment of the election symbol of BJP by filing a writ petition. Rule nisi was issued and by an interim order of the High Court, the order of the Election Commission allotting the symbol in favour of Reshma Anil Bhosale was stayed.6. Hence these two special leave petitions.7. It was passionately urged by the learned senior counsel appearing in both the matters that this Court ought to examine the questions of law involved in the petitions because these elections at the grass root level are of great importance in the civic administration of Pune. By the impugned orders, the High Court deprived the petitioners of their valuable electoral rights. Though the petitioners have an alternative remedy to challenge the election of returned candidates, such a remedy is time consuming and in the process a substantial (if not the entire) portion of the term of the office would expire and, therefore, this Court is bound to examine the cases on merits.8. The remedy under Article 136 is a discretionary remedy though it does not mean that the discretion should be exercised whimsically. Learned counsel for the petitioners relied upon a judgment of the Constitution Bench in the case of Mohinder Singh Gill & Another v. The Chief Election Commissioner, New Delhi & Others, AIR 1978 SC 851 , in support of the submission that in appropriate cases, this Court ought to interfere in certain specified circumstances in the election process notwithstanding the fact that the aggrieved candidate would have an opportunity to question the election at a later point of time by filing an election petition.9. On the other hand, the caveator (one of the contesting candidates - respondents in SLP(C) No.5014 of 2017 relying upon a judgment of this Court in Election Commission of India through Secretary v. Ashok Kumar & Others, (2008) 8 SCC 216, argued that this Court clearly laid down the circumstances in which interference would be justified and the case on hand does not fall within the parameters indicated therein.10. We see no reason to entertain the SLPs for the following reasons(i) The elections in question pertain to a local body under a local law of the State Legislature. The result of the election is most unlikely to have any effect on the affairs of this nation. We are even inclined to believe that the result of the election would not have any repercussions beyond Pune City.(ii) The High Court is also a constitutional court, subject of course to the appellate jurisdiction conferred on this court by law.(iii) The petitioners would still have a forum for adjudication of their respective rights and granting appropriate relief if they can successfully establish the infringement of their legal rights.(iv) The appellate jurisdiction conferred by the Constitution under Article 136 is purely discretionary.(v) The pendency of huge number of matters in this Court coupled with the relative insignificance (from the point of view of the nation) of the injury to the petitioners herein are certainly factors which should weigh with this Court before entertaining these applications.11. We are only reminded of a caution given by Justice Frankfurter in Rogers v. Missouri Pacific Railroad Co., 353 U.S. 500, 521 : 77 S. Ct. 443, 459 "The Court may or may not be "doing justice" in the four insignificant cases it decides today; it certainly is doing injustice to the significant and important cases on the calendar and to its own role as the supreme judicial body of the country." ... "Unless the Court vigorously enforces its own criteria for granting review of cases, it will inevitably face an accumulation of arrears or will dispose of its essential business in too hurried and therefore too shallow a way." | 0[ds]10. We see no reason to entertain the SLPs for the followingThe elections in question pertain to a local body under a local law of the State Legislature. The result of the election is most unlikely to have any effect on the affairs of this nation. We are even inclined to believe that the result of the election would not have any repercussions beyond Pune City.(ii) The High Court is also a constitutional court, subject of course to the appellate jurisdiction conferred on this court by law.(iii) The petitioners would still have a forum for adjudication of their respective rights and granting appropriate relief if they can successfully establish the infringement of their legal rights.(iv) The appellate jurisdiction conferred by the Constitution under Article 136 is purely discretionary.(v) The pendency of huge number of matters in this Court coupled with the relative insignificance (from the point of view of the nation) of the injury to the petitioners herein are certainly factors which should weigh with this Court before entertaining these applications.We are only reminded of a caution given by Justice Frankfurter in Rogers v. Missouri Pacific Railroad Co., 353 U.S. 500, 521 : 77 S. Ct. 443, 459 "The Court may or may not be "doing justice" in the four insignificant cases it decides today; it certainly is doing injustice to the significant and important cases on the calendar and to its own role as the supreme judicial body of the country." ... "Unless the Court vigorously enforces its own criteria for granting review of cases, it will inevitably face an accumulation of arrears or will dispose of its essential business in too hurried and therefore too shallow a way." | 0 | 900 | 319 | ### 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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Chelameswar, J.1. Permission to file Special Leave Petition is granted.2. These two matters arise out of Maharashtra Municipal Corporation Act, 1949 (Act No. 59 of 1949). Petitioners in these two SLPs are candidates at the ongoing Elections to the Municipal Corporation of Pune.3. Aggrieved by certain action taken by the respondents, two writ petitions came to be filed in the High Court of Bombay, one by the petitioner in SLP (Civil) ... CC No. 3350 of 2017 and the other by respondent no.4 in SLP (Civil) No.5014 of 2017.4. Reena Suresh Alhats nomination was rejected by an order dated 4.2.2017. She challenged the rejection of her nomination by a writ petition. The writ petition was dismissed by the High Court by an order under challenge dated 7.2.2017 on the twin grounds of a constitutional bar and the existence of an alternative remedy.5. In the case of Reshma Anil Bhosale, the dispute is regarding the allotment of a symbol. The petitioner claimed to be a candidate sponsored by the Bharatiya Janata Party. The said symbol was allotted to the petitioner by an order of the respondent dated 8.2.2017. One of the contesting candidates questioned the allotment of the election symbol of BJP by filing a writ petition. Rule nisi was issued and by an interim order of the High Court, the order of the Election Commission allotting the symbol in favour of Reshma Anil Bhosale was stayed.6. Hence these two special leave petitions.7. It was passionately urged by the learned senior counsel appearing in both the matters that this Court ought to examine the questions of law involved in the petitions because these elections at the grass root level are of great importance in the civic administration of Pune. By the impugned orders, the High Court deprived the petitioners of their valuable electoral rights. Though the petitioners have an alternative remedy to challenge the election of returned candidates, such a remedy is time consuming and in the process a substantial (if not the entire) portion of the term of the office would expire and, therefore, this Court is bound to examine the cases on merits.8. The remedy under Article 136 is a discretionary remedy though it does not mean that the discretion should be exercised whimsically. Learned counsel for the petitioners relied upon a judgment of the Constitution Bench in the case of Mohinder Singh Gill & Another v. The Chief Election Commissioner, New Delhi & Others, AIR 1978 SC 851 , in support of the submission that in appropriate cases, this Court ought to interfere in certain specified circumstances in the election process notwithstanding the fact that the aggrieved candidate would have an opportunity to question the election at a later point of time by filing an election petition.9. On the other hand, the caveator (one of the contesting candidates - respondents in SLP(C) No.5014 of 2017 relying upon a judgment of this Court in Election Commission of India through Secretary v. Ashok Kumar & Others, (2008) 8 SCC 216, argued that this Court clearly laid down the circumstances in which interference would be justified and the case on hand does not fall within the parameters indicated therein.10. We see no reason to entertain the SLPs for the following reasons(i) The elections in question pertain to a local body under a local law of the State Legislature. The result of the election is most unlikely to have any effect on the affairs of this nation. We are even inclined to believe that the result of the election would not have any repercussions beyond Pune City.(ii) The High Court is also a constitutional court, subject of course to the appellate jurisdiction conferred on this court by law.(iii) The petitioners would still have a forum for adjudication of their respective rights and granting appropriate relief if they can successfully establish the infringement of their legal rights.(iv) The appellate jurisdiction conferred by the Constitution under Article 136 is purely discretionary.(v) The pendency of huge number of matters in this Court coupled with the relative insignificance (from the point of view of the nation) of the injury to the petitioners herein are certainly factors which should weigh with this Court before entertaining these applications.11. We are only reminded of a caution given by Justice Frankfurter in Rogers v. Missouri Pacific Railroad Co., 353 U.S. 500, 521 : 77 S. Ct. 443, 459 "The Court may or may not be "doing justice" in the four insignificant cases it decides today; it certainly is doing injustice to the significant and important cases on the calendar and to its own role as the supreme judicial body of the country." ... "Unless the Court vigorously enforces its own criteria for granting review of cases, it will inevitably face an accumulation of arrears or will dispose of its essential business in too hurried and therefore too shallow a way."
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10. We see no reason to entertain the SLPs for the followingThe elections in question pertain to a local body under a local law of the State Legislature. The result of the election is most unlikely to have any effect on the affairs of this nation. We are even inclined to believe that the result of the election would not have any repercussions beyond Pune City.(ii) The High Court is also a constitutional court, subject of course to the appellate jurisdiction conferred on this court by law.(iii) The petitioners would still have a forum for adjudication of their respective rights and granting appropriate relief if they can successfully establish the infringement of their legal rights.(iv) The appellate jurisdiction conferred by the Constitution under Article 136 is purely discretionary.(v) The pendency of huge number of matters in this Court coupled with the relative insignificance (from the point of view of the nation) of the injury to the petitioners herein are certainly factors which should weigh with this Court before entertaining these applications.We are only reminded of a caution given by Justice Frankfurter in Rogers v. Missouri Pacific Railroad Co., 353 U.S. 500, 521 : 77 S. Ct. 443, 459 "The Court may or may not be "doing justice" in the four insignificant cases it decides today; it certainly is doing injustice to the significant and important cases on the calendar and to its own role as the supreme judicial body of the country." ... "Unless the Court vigorously enforces its own criteria for granting review of cases, it will inevitably face an accumulation of arrears or will dispose of its essential business in too hurried and therefore too shallow a way."
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Moti Natwarlal & Ors Vs. Raghavayya Nagindas & Co | entitled to charge his own client. Similar provision is to be found in England in the Supreme Court Costs Rules, 1959 (see "The Annual Practice 1965, p. 1999/300"). Mr. Nariman who appears on behalf of the Incorporated Law Society, Bombay, drew our attention to Rule 29 of the last mentioned rules under which a Solicitors bill can be taxed as between himself and his client. These provisions are on a par with the rules of taxation on the Original Side of the Bombay High Court. The important point to be noted is that the Rules of the City Civil Court do not, except in regard to suits transferred from the High Court, contain any provision under which an Attorney can have his bill taxed as between himself and his client.18. Perhaps there is good reason for this because though under Section 224(1)(d) of the Government of India Act, 1935 and Article 227(3) of the Constitution, the High Court has got the power to settle tables of fees to be allowed to Attorneys practising in Subordinate Courts, that power has not been exercised by the High Court for the reason, probably, that the Rules of Taxation on the Original Side of the High Court adequately and effectively take care of that matter. The High Court did exercise its powers under Section 224(1)(d) in relation to the City Civil Court but did not in the rules framed in the exercise of that power provided for taxation of an Attorneys bill of costs as between him and his client. It is not too much to suppose that the High Court did not want to do once over again what it had elaborately done while framing the rules on the Original Side, which were in vogue for a large number of years and were working satisfactorily.19. Mr. Parekh sought to derive some sustenance to his argument from a decision of the Calcutta High Court in Messrs Sandersons & Morgans v. Mohanlal Lalluchand Shah (AIR 1955 Cal 319 : 59 Cal WN 180) but we find that the question which arose for decision therein was entirely different. The appellants therein, a firm of Solicitor, submitted to the respondents a bill of costs for the work done by them for the respondents on the Original Side of the Calcutta High Court. The respondents challenged the bill by a Chamber Summons, which the appellants resisted on the ground that there was a private agreement between the parties to pay a particular amount by way of fees and therefore the bill was not liable to be taxed under the Original Side Rules. On a consideration of the Original Side Rules of the Calcutta High Court, particularly Rules 4 and 74 of Chapter 36, the High Court came to the conclusion that the Solicitors were bound to have their bills taxed according to the Original Side scale, agreement or no agreement. We are concerned in the instant case with a different question under a different set of rules and as pointed out by the High Court, the Calcutta Rules are in material respect different from the Bombay Rules. We must interpret the Bombay Rules on their own terms and decisions on other statutes cannot afford material assistance unless, of course, any principle of general application is laid down.20. We have already mentioned that in Messrs Pereira Fazalbhoy & Co. Mody, J., held that an Attorney was entitled to have his bill taxed on the Original Side scale even in respect of the work done by him outside the High Court. For the various reasons mentioned above we endorse that view.21. Before concluding, we ought to refer to a rather anxious plea made by Mr. Parekh which involves ethical considerations. Counsel urged that it is unfair that for small work done in the City Civil Court Solicitors should be permitted to charge high fees prescribed under the Original Side Rules. We find ourselves unable to share this concern. If anything, Solicitors are subject to he watchful supervision of the High Court wherever they may render professional services. The object of binding the Attorneys to the scale of fees prescribed in the Original Side Rules is not to confer on them any special benefit which is denied to other legal practitioners. The object on the contrary is to ensure that Attorneys shall always be subject to the jurisdiction of the High Court no matter whether they have acted on the Original Side or in any Court subordinate to the High Court. The only exception is made by Rule 569 in regard to the work done on the Appellate Side of the High Court which, as indicated earlier, prescribes its own scale of fees as between an Advocate and his client. In fact, we are unable to see why a power similar to the power of taxation of a bill of costs between an Advocate and his client which is to be found in the Supreme Court Rules should not be conferred on appropriate officers of Courts subordinate to the High Court. Such a power may enable the Presiding Judges to control the professional ethics of the Advocates appearing before them more effectively than is possible at present. In this very case, a bill of Rs. 6000 odd lodged by the appellants was reduced on taxation to a sum of about Rs. 850 only. If there were no machinery for taxing the bill, the appellants might perhaps have got off with the demand. We would only like to add that before allowing the costs claimed by an Attorney from his client, the Taxing Master must have regard to the fact that the Attorney has appeared in a Subordinate Court and to the scale of fees generally prevalent in that Court. A judicious exercise of discretion postulates elimination of unfair play, particularly where one party to a transaction is in a position to dominate the will of the other. The client must receive the protection of the Court and its officers whenever necessary. | 0[ds]Rule 569 of "The Rules of the High Court of Bombay (Original Side), 1957" affords, in our opinion, a complete answer to the appellants contention that the Taxing Master who is an officer of the Original Side of the High Court has no jurisdiction to tax the Attorneys bills in regard to work done by them in matters other than those on the Original Side. Rule 569 occurs in Chapter XXIX of the Original Side Rules under the rubric "The Taxing Office". The Rule reads thus :569. The Taxing Master shall tax the bills of costs on every side of the Court (except the Appellate Side) and in the Insolvency Court. All other bills of costs of Attorneys shall also be taxed by him when he is directed to do so by a Judges order.The Rule consists of two parts of which the first part confers jurisdiction on the Taxing Master to tax the bills of costs on every side of the High Court including bills relating to matters in the Insolvency Court but excluding those on the Appellate Side of the High Court. If the rule were to stop with the first part, it would have been possible to say that the Taxing Master has no jurisdiction to tax the bills in regard to matters outside the High Court. But the second part of the rule puts the matter beyond doubt by providing that all other bills of costs of Attorneys shall also be taxed by the Taxing Master. Itis argued on behalf of the appellants that "other bills of costs" must be construed to mean "other bills of costs relating to matters on the Original Side of the High Court" and bills relating tonon-contentious matters. We see no justification for cutting down the scope of the second part of the rule by putting a limited meaning on words of width used therein. "All other bills of costs of Attorneys" to which the second part of the rule refers must mean all bills of costs of Attorneys other than those which are referred to in the first part of the Rule. That we conceive to be the plain meaning of the particularthe first place, as explained above, the Act of 1926 was passed for an entirely different purpose with which we are not concerned in the present case. Secondly, and that is more important, Section 4 on which the appellants rely deals, as shown by its marginal note, with a limited question viz., the right of a legal practitioner to sue for his fees. It may be that since an Attorney is included within the meaning of the expression legal practitioner, he will be governed by the provisions contained in Section 4 of the Act of 1926 if he brings a suit for the recovery of his fees. But we are not concerned in this case to determine the scope and extent of an Attorneys right to sue for his fees. It must further be borne in mind that Section 4, which is in two parts, provides in the first place that a legal practitioner shall be entitled to institute and maintain a legal proceeding for the recovery of any fee due to him under an agreement. This part of the Section confers an additional entitlement on legal practitioners and cannot justifiably be construed as detracting from any other right which they may possess in regard to the taxation and recovery of their fees. Section 4 provides by its second part that if there is no agreement between the legal practitioner and his client in regard to the fees payable to him, he shall be entitled to institute and maintain legal proceedings for the recovery of a fee computed in the manner provided therein. This also is in the nature of an entitlement, the right recognised thereby being the right to bring a suit to recover the fees in the absence of an agreement. Any legal practitioner who wants to enforce the right which is specially created and conferred by the Act of 1926 will have to comply with the conditions on which that right is conferred. When a statute creates a special right, it can only be enforced in the manner and subject to the conditions prescribed by the statute. Therefore, the fees for the recovery of which legal proceedings are brought under Section 4 cannot be any larger than the fees computed in accordance with the law for the time being in force in regard to the computation of the costs to be awarded to a party in respect of the fee of his legal practitioner. But, as we have stated earlier, the provisions of the Act of 1926 are entirely besides the point. They have no bearing on the question whether an Attorney can have his bill taxed by the Taxing Master in respect of the work done by him in courts other than the High Court of Bombay and if so, on what scale.The Bombay High Court in the judgment under appeal thought that there was an apparent conflict between Section 4 of the Act of 1926 and the Original Side Rules relating to the taxation of an Attorneys bill of cots. We would like to make it clear that bearing in mind the true object and purpose for which the Act of 1926 was passed and the drive of Section 4 thereof, there is no conflict, apparent or real, between any of the provisions of the Act of 1926 and the rules of taxation contained in the Original Side Rules of 1957. In that view, it is unnecessary to resort to the principle of harmonious construction which the High Court alternatively relied upon for holding that the Taxing Master has the jurisdiction to tax the respondents bill in the instant case and on the Original Siderules, according to their very terms, have nothing to do with the taxation of any Attorneys bill of costs as between himself and his own client. The rules govern the fees payable by way of costs by any party in the City Civil Court, in respect of the fees of his adversarys Attorney. That is to say, if an order of costs is passed in favour of a party to a suit or proceeding in the City Civil Court, he is entitled to recover from his adversary by way of professional charges incurred by him, the fees computed in accordance with the rules framed under Section 224(1)(d) of the Government of India Act and not what he has in fact paid to his Attorney.The Bombay City Civil Court Act, 60 of 1948, provides by Section 18(1) that all suits and proceedings cognizable by the City Civil Court and pending in the High Court, in which issues have not been settled or evidence has not been recorded shall be transferred to the City Civil Court. By Section 18(2), costs incurred in the High Court till the date of the transfer of the suit are to be assessed by the City Civil Court in such manner as the State Government may after consultation with the High Court determine by rules. Mr. Parekh drew our attention to Rule 2 framed by the Government of Bombay under Section 18(2) but we do not see its relevance on the issue under consideration in the instant case. That rule shows that even as regards the fees of Attorneys. The Registrar of the City Civil Court is given the power to tax and allow all such costs and out of pocket expenses as shall have been properly incurred by an Attorney up to the date of the transfer of the suit. The rule further provides that after the date of the transfer such fees shall be taxed and allowed as in the opinion of the Registrar are commensurate with the work done by the Advocate having regard to the scale of fees sanctioned for the Advocate in the City Civil Court by the High Court. Rule 2, being a rule framed under Section 18(2) of the Act of 1948, governs transferred suits only and it expressly authorises the Registrar to tax the Attorneys bill for the work down in such suits both before and after the transfer of the suit from the High Court to the City Civil Court. There is no corresponding rule which can apply to suits and proceedings instituted in the City Civil Court afterthe Bombay City Civil Court Act, 1948 came into force and in the absence of such rule, the rules framed under Section 18(2) cannot support the appellants contention. Mr. Parekh also drew our attention to the "Rules of the Bombay City Civil Court, 1948" framed by the Bombay High Court under Section 224 ofthe Government of India Act, 1935 but we see nothing in those rules either which can assist his contention regarding the power of the Taxing Master to tax an Attorneys bill as between himself and his client.17. While we are on this aspect of the matter it would be useful to refer to the Supreme Court Rules, 1966 and the Bombay High Court Appellate Side Rules, 1960. The Supreme Court Rules contain elaborate provisions in Order XLI and Order XLII thereof regarding costs of proceedings and taxation of costs. Rule 13 of Order XLII provides that except as otherwise provided in the Rules or by any law for the time being in force, the fees set out in the Second and Fourth Schedules to the Rules may be allowed to Advocates and Officers of the Court respectively. Rules 23 to 29 of Order XLII deal specifically with Advocate and Client taxation. The Second Schedule contains detailed provisions under which fees are payable to Advocates for various types of professional services rendered by them. Similarly, Chapter 14 of the Appellate Side Rules of the Bombay High Court contains various rules for computing the fees which an Advocate is entitled to charge his own client. Similar provision is to be found in England in the Supreme Court Costs Rules, 1959 (see "The Annual Practice 1965, p.provisions are on a par with the rules of taxation on the Original Side of the Bombay High Court. The important point to be noted is that the Rules of the City Civil Court do not, except in regard to suits transferred from the High Court, contain any provision under which an Attorney can have his bill taxed as between himself and his client.18. Perhaps there is good reason for this because though under Section 224(1)(d) ofthe Government of India Act, 1935 and Article 227(3) of the Constitution, the High Court has got the power to settle tables of fees to be allowed to Attorneys practising in Subordinate Courts, that power has not been exercised by the High Court for the reason, probably, that the Rules of Taxation on the Original Side of the High Court adequately and effectively take care of that matter. The High Court did exercise its powers under Section 224(1)(d) in relation to the City Civil Court but did not in the rules framed in the exercise of that power provided for taxation of an Attorneys bill of costs as between him and his client. It is not too much to suppose that the High Court did not want to do once over again what it had elaborately done while framing the rules on the Original Side, which were in vogue for a large number of years and were workinga consideration of the Original Side Rules of the Calcutta High Court, particularly Rules 4 and 74 of Chapter 36, the High Court came to the conclusion that the Solicitors were bound to have their bills taxed according to the Original Side scale, agreement or no agreement. We are concerned in the instant case with a different question under a different set of rules and as pointed out by the High Court, the Calcutta Rules are in material respect different from the Bombay Rules. We must interpret the Bombay Rules on their own terms and decisions on other statutes cannot afford material assistance unless, of course, any principle of general application is laid down.20. We have already mentioned that in Messrs Pereira Fazalbhoy & Co. Mody, J., held that an Attorney was entitled to have his bill taxed on the Original Side scale even in respect of the work done by him outside the High Court. For the various reasons mentioned above we endorse that view.Before concluding, we ought to refer to a rather anxious plea made by Mr. Parekh which involves ethical considerations. Counsel urged that it is unfair that for small work done in the City Civil Court Solicitors should be permitted to charge high fees prescribed under the Original Side Rules.We find ourselves unable to share this concern. If anything, Solicitors are subject to he watchful supervision of the High Court wherever they may render professional services. The object of binding the Attorneys to the scale of fees prescribed in the Original Side Rules is not to confer on them any special benefit which is denied to other legal practitioners. The object on the contrary is to ensure that Attorneys shall always be subject to the jurisdiction of the High Court no matter whether they have acted on the Original Side or in any Court subordinate to the High Court. The only exception is made by Rule 569 in regard to the work done on the Appellate Side of the High Court which, as indicated earlier, prescribes its own scale of fees as between an Advocate and his client. In fact, we are unable to see why a power similar to the power of taxation of a bill of costs between an Advocate and his client which is to be found in the Supreme Court Rules should not be conferred on appropriate officers of Courts subordinate to the High Court. Such a power may enable the Presiding Judges to control the professional ethics of the Advocates appearing before them more effectively than is possible at present. In this very case, a bill of Rs. 6000 odd lodged by the appellants was reduced on taxation to a sum of about Rs. 850 only. If there were no machinery for taxing the bill, the appellants might perhaps have got off with the demand. We would only like to add that before allowing the costs claimed by an Attorney from his client, the Taxing Master must have regard to the fact that the Attorney has appeared in a Subordinate Court and to the scale of fees generally prevalent in that Court. A judicious exercise of discretion postulates elimination of unfair play, particularly where one party to a transaction is in a position to dominate the will of the other. The client must receive the protection of the Court and its officers wheneversee no justification for cutting down the scope of the second part of the rule by putting a limited meaning on words of width used therein. "All other bills of costs of Attorneys" to which the second part of the rule refers must mean all bills of costs of Attorneys other than those which are referred to in the first part of the Rule. That we conceive to be the plain meaning of the particularis not possible to accept this submission because even after that Act came into force, the Bombay High Court took the same view as was taken in Nowrojis case and for good reasons which we will expiate while dealing with the appellants contention bearing on the scale of fees according to which the bills can be taxed. The relevant rule, couched in identical language, with which the High Court was concerned from time to time leaves no doubt that the Taxing Master has the jurisdiction to tax all bills of costs of Attorneys, except those in regard to the work done by them on the Appellate Side of the Highfind ourselves unable to share this concern. If anything, Solicitors are subject to he watchful supervision of the High Court wherever they may render professional services. The object of binding the Attorneys to the scale of fees prescribed in the Original Side Rules is not to confer on them any special benefit which is denied to other legal practitioners. The object on the contrary is to ensure that Attorneys shall always be subject to the jurisdiction of the High Court no matter whether they have acted on the Original Side or in any Court subordinate to the High Court. The only exception is made by Rule 569 in regard to the work done on the Appellate Side of the High Court which, as indicated earlier, prescribes its own scale of fees as between an Advocate and his client. In fact, we are unable to see why a power similar to the power of taxation of a bill of costs between an Advocate and his client which is to be found in the Supreme Court Rules should not be conferred on appropriate officers of Courts subordinate to the High Court. Such a power may enable the Presiding Judges to control the professional ethics of the Advocates appearing before them more effectively than is possible at present. In this very case, a bill of Rs. 6000 odd lodged by the appellants was reduced on taxation to a sum of about Rs. 850 only. If there were no machinery for taxing the bill, the appellants might perhaps have got off with the demand. We would only like to add that before allowing the costs claimed by an Attorney from his client, the Taxing Master must have regard to the fact that the Attorney has appeared in a Subordinate Court and to the scale of fees generally prevalent in that Court. A judicious exercise of discretion postulates elimination of unfair play, particularly where one party to a transaction is in a position to dominate the will of the other. The client must receive the protection of the Court and its officers whenever | 0 | 6,630 | 3,229 | ### 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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entitled to charge his own client. Similar provision is to be found in England in the Supreme Court Costs Rules, 1959 (see "The Annual Practice 1965, p. 1999/300"). Mr. Nariman who appears on behalf of the Incorporated Law Society, Bombay, drew our attention to Rule 29 of the last mentioned rules under which a Solicitors bill can be taxed as between himself and his client. These provisions are on a par with the rules of taxation on the Original Side of the Bombay High Court. The important point to be noted is that the Rules of the City Civil Court do not, except in regard to suits transferred from the High Court, contain any provision under which an Attorney can have his bill taxed as between himself and his client.18. Perhaps there is good reason for this because though under Section 224(1)(d) of the Government of India Act, 1935 and Article 227(3) of the Constitution, the High Court has got the power to settle tables of fees to be allowed to Attorneys practising in Subordinate Courts, that power has not been exercised by the High Court for the reason, probably, that the Rules of Taxation on the Original Side of the High Court adequately and effectively take care of that matter. The High Court did exercise its powers under Section 224(1)(d) in relation to the City Civil Court but did not in the rules framed in the exercise of that power provided for taxation of an Attorneys bill of costs as between him and his client. It is not too much to suppose that the High Court did not want to do once over again what it had elaborately done while framing the rules on the Original Side, which were in vogue for a large number of years and were working satisfactorily.19. Mr. Parekh sought to derive some sustenance to his argument from a decision of the Calcutta High Court in Messrs Sandersons & Morgans v. Mohanlal Lalluchand Shah (AIR 1955 Cal 319 : 59 Cal WN 180) but we find that the question which arose for decision therein was entirely different. The appellants therein, a firm of Solicitor, submitted to the respondents a bill of costs for the work done by them for the respondents on the Original Side of the Calcutta High Court. The respondents challenged the bill by a Chamber Summons, which the appellants resisted on the ground that there was a private agreement between the parties to pay a particular amount by way of fees and therefore the bill was not liable to be taxed under the Original Side Rules. On a consideration of the Original Side Rules of the Calcutta High Court, particularly Rules 4 and 74 of Chapter 36, the High Court came to the conclusion that the Solicitors were bound to have their bills taxed according to the Original Side scale, agreement or no agreement. We are concerned in the instant case with a different question under a different set of rules and as pointed out by the High Court, the Calcutta Rules are in material respect different from the Bombay Rules. We must interpret the Bombay Rules on their own terms and decisions on other statutes cannot afford material assistance unless, of course, any principle of general application is laid down.20. We have already mentioned that in Messrs Pereira Fazalbhoy & Co. Mody, J., held that an Attorney was entitled to have his bill taxed on the Original Side scale even in respect of the work done by him outside the High Court. For the various reasons mentioned above we endorse that view.21. Before concluding, we ought to refer to a rather anxious plea made by Mr. Parekh which involves ethical considerations. Counsel urged that it is unfair that for small work done in the City Civil Court Solicitors should be permitted to charge high fees prescribed under the Original Side Rules. We find ourselves unable to share this concern. If anything, Solicitors are subject to he watchful supervision of the High Court wherever they may render professional services. The object of binding the Attorneys to the scale of fees prescribed in the Original Side Rules is not to confer on them any special benefit which is denied to other legal practitioners. The object on the contrary is to ensure that Attorneys shall always be subject to the jurisdiction of the High Court no matter whether they have acted on the Original Side or in any Court subordinate to the High Court. The only exception is made by Rule 569 in regard to the work done on the Appellate Side of the High Court which, as indicated earlier, prescribes its own scale of fees as between an Advocate and his client. In fact, we are unable to see why a power similar to the power of taxation of a bill of costs between an Advocate and his client which is to be found in the Supreme Court Rules should not be conferred on appropriate officers of Courts subordinate to the High Court. Such a power may enable the Presiding Judges to control the professional ethics of the Advocates appearing before them more effectively than is possible at present. In this very case, a bill of Rs. 6000 odd lodged by the appellants was reduced on taxation to a sum of about Rs. 850 only. If there were no machinery for taxing the bill, the appellants might perhaps have got off with the demand. We would only like to add that before allowing the costs claimed by an Attorney from his client, the Taxing Master must have regard to the fact that the Attorney has appeared in a Subordinate Court and to the scale of fees generally prevalent in that Court. A judicious exercise of discretion postulates elimination of unfair play, particularly where one party to a transaction is in a position to dominate the will of the other. The client must receive the protection of the Court and its officers whenever necessary.
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own terms and decisions on other statutes cannot afford material assistance unless, of course, any principle of general application is laid down.20. We have already mentioned that in Messrs Pereira Fazalbhoy & Co. Mody, J., held that an Attorney was entitled to have his bill taxed on the Original Side scale even in respect of the work done by him outside the High Court. For the various reasons mentioned above we endorse that view.Before concluding, we ought to refer to a rather anxious plea made by Mr. Parekh which involves ethical considerations. Counsel urged that it is unfair that for small work done in the City Civil Court Solicitors should be permitted to charge high fees prescribed under the Original Side Rules.We find ourselves unable to share this concern. If anything, Solicitors are subject to he watchful supervision of the High Court wherever they may render professional services. The object of binding the Attorneys to the scale of fees prescribed in the Original Side Rules is not to confer on them any special benefit which is denied to other legal practitioners. The object on the contrary is to ensure that Attorneys shall always be subject to the jurisdiction of the High Court no matter whether they have acted on the Original Side or in any Court subordinate to the High Court. The only exception is made by Rule 569 in regard to the work done on the Appellate Side of the High Court which, as indicated earlier, prescribes its own scale of fees as between an Advocate and his client. In fact, we are unable to see why a power similar to the power of taxation of a bill of costs between an Advocate and his client which is to be found in the Supreme Court Rules should not be conferred on appropriate officers of Courts subordinate to the High Court. Such a power may enable the Presiding Judges to control the professional ethics of the Advocates appearing before them more effectively than is possible at present. In this very case, a bill of Rs. 6000 odd lodged by the appellants was reduced on taxation to a sum of about Rs. 850 only. If there were no machinery for taxing the bill, the appellants might perhaps have got off with the demand. We would only like to add that before allowing the costs claimed by an Attorney from his client, the Taxing Master must have regard to the fact that the Attorney has appeared in a Subordinate Court and to the scale of fees generally prevalent in that Court. A judicious exercise of discretion postulates elimination of unfair play, particularly where one party to a transaction is in a position to dominate the will of the other. The client must receive the protection of the Court and its officers wheneversee no justification for cutting down the scope of the second part of the rule by putting a limited meaning on words of width used therein. "All other bills of costs of Attorneys" to which the second part of the rule refers must mean all bills of costs of Attorneys other than those which are referred to in the first part of the Rule. That we conceive to be the plain meaning of the particularis not possible to accept this submission because even after that Act came into force, the Bombay High Court took the same view as was taken in Nowrojis case and for good reasons which we will expiate while dealing with the appellants contention bearing on the scale of fees according to which the bills can be taxed. The relevant rule, couched in identical language, with which the High Court was concerned from time to time leaves no doubt that the Taxing Master has the jurisdiction to tax all bills of costs of Attorneys, except those in regard to the work done by them on the Appellate Side of the Highfind ourselves unable to share this concern. If anything, Solicitors are subject to he watchful supervision of the High Court wherever they may render professional services. The object of binding the Attorneys to the scale of fees prescribed in the Original Side Rules is not to confer on them any special benefit which is denied to other legal practitioners. The object on the contrary is to ensure that Attorneys shall always be subject to the jurisdiction of the High Court no matter whether they have acted on the Original Side or in any Court subordinate to the High Court. The only exception is made by Rule 569 in regard to the work done on the Appellate Side of the High Court which, as indicated earlier, prescribes its own scale of fees as between an Advocate and his client. In fact, we are unable to see why a power similar to the power of taxation of a bill of costs between an Advocate and his client which is to be found in the Supreme Court Rules should not be conferred on appropriate officers of Courts subordinate to the High Court. Such a power may enable the Presiding Judges to control the professional ethics of the Advocates appearing before them more effectively than is possible at present. In this very case, a bill of Rs. 6000 odd lodged by the appellants was reduced on taxation to a sum of about Rs. 850 only. If there were no machinery for taxing the bill, the appellants might perhaps have got off with the demand. We would only like to add that before allowing the costs claimed by an Attorney from his client, the Taxing Master must have regard to the fact that the Attorney has appeared in a Subordinate Court and to the scale of fees generally prevalent in that Court. A judicious exercise of discretion postulates elimination of unfair play, particularly where one party to a transaction is in a position to dominate the will of the other. The client must receive the protection of the Court and its officers whenever
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UNIVERSITY OF KERALA AND ORS. ETC Vs. MERLIN J.N. AND ANR. ETC. ETC | uses the word declaratory, the words so used may not be sufficient to hold that the statute is a declaratory Act as words may be used in order to bring into effect new law. 21. The respondents herein had submitted that it was not the UGCs intention to give retrospective effect to the 2016 UGCR, even though the UGC had the power to do so under Section 26(3) of the UGC Act. It was additionally urged that in such circumstances, the court should not interpret the amendments so as to confer such benefits retrospectively, especially to pending proceedings. 22. This court is unpersuaded by such contentions. In situations such as these, a retrospective restoration of rights which had earlier been taken away, will certainly affect pending proceedings - however, it is the duty of the courts, whether trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same (G.P. Singh, Principles of Statutory Interpretation (14th Edn.), Pg. 631). If on such consideration, it is held by the court that an amendment speaks a language which expressly or by clear intendment takes in even pending matters, the court of first instance as well as the court of appeal must have regard to the intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance Noorunissa Begum v. Brij Kishore Sanghi, (2015) 17 SCC 128, para 28. 23. When an enactment or an amendment is declaratory, curative or clarificatory, impelled by a felt need to make clear what was always intended, such amendment is usually meant to operate from an antecedent date, or to cover antecedent events. This position was clarified in Commissioner of Income Tax, Bhopal vs. Shelly Products & Ors., (2003) 5 SCC 461, para 38 where this court, while interpreting an amendment, held that: It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the revenue to refund the entire amount of income-tax paid by the assessee where the revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear a meaning of a provision of the principal Act and make explicit that which was already implicit. 24. Likewise, in Zile Singh v State of Haryana Zile Singh v State of Haryana, 2004 (8) SCC 1, para 14, this court, quoted from G.P. Singhs Principles of Statutory Interpretation (9th Edn.), and applied the relevant rule of construction: If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended...An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect. 25. Another argument raised by the respondent was that this courts decision in Manoj Sharma (supra) squarely held against the appellants. We disagree. In Manoj Sharma (supra), the respondents had obtained M.Phil. degrees under distance education programs, which was de-recognized by the 2009 Ph.D. Regulations. The Madhya Pradesh High Court held [Manoj Sharma v State of Madhya Pradesh, W.P. (C) No. 3290 of 2012, dated 29.08.2012 [MP HC]] that such de-recognition was prospective in nature, and their M.Phil. degrees were not rendered ineffective, which was upheld by this court State of Madhya Pradesh v. Manoj Sharma, 2018 (3) SCC 329, para 12. As far as the issue of application of 2009 UGCR was concerned, the same was restricted to only MPhil degree holders, wherein the 2009 UGCR removed the NET exemption granted for M.Phil. degree holders, and retained it only for Ph.D. holders in accordance with 2009 Ph.D. Regulations. Again, this court was not afforded the opportunity to analyse the 2016 or 2018 UGCR, as those were not raised before it (the respondents were unrepresented before this court). Thus, we find limited applicability of Manoj Sharma (supra) to the present case. 26. The logic pervading all the versions of the UGCR from 1993-2018 (as discussed above) to exempt M. Phil. / Ph.D. holders from qualifying in the NET was perhaps premised on the understanding that such a doctorate in ones chosen subject, involving years of study, would render a greater understanding of the subject compared to most other candidates taking the NET who have only obtained a Masters degree. Such qualification (M. Phil. or Ph. D.) is undoubtedly awarded for a proven proficiency of the candidate in the concerned subject or discipline. This is apparent from the minimum qualification requirements of different positions as well – for e.g., while a Masters degree is sufficient for application to the post of Assistant Professor, a Ph.D. is required for applying to the post of Associate Professor onwards [See Reg. 4.1, 2018 UGCR, applicable to all disciplines of Arts, Commerce, Humanities, Education, Law, Social Sciences, Sciences, Languages, Library Science, Physical Education, and Journalism & Mass Communication]. To interpret the 2018 UGCR prospectively would imply that a pre-2009 Ph.D. holders appointment would be rendered illegal, and after having taught for several years, he/she would lose his/her seniority and all accrued benefits and would now have to take the NET in order to teach – which is clearly unwarranted. This court therefore, holds that Dr. Jayakumars appointment is protected by the 2016 UGCR, which is applicable retrospectively. | 1[ds]13. From the narration of facts, it is evident that for long, whenever the UGC introduced regulations pertaining to qualifications for university teaching staff, exemptions were provided for Ph. D and M. Phil. holders from the requirement of qualifying in the NET. This is evident from the successive changes which UGC introduced in the relevant regulations dealing with eligibility and qualifications for appointment as Assistant Professors, Associate Professors, etc. in 1993, 2000, 2002 and 2006. The 2009 Ph.D. Regulations were the first time that the pedagogic content of curriculum and manner in which evaluation of thesis/viva voce, etc. were spelt out. Building on this, the 2009/10 UGCR dealt with the qualifications for appointment of teaching staff in universities, and made a break with the past inasmuch as only those who had earned their Ph.D. in terms of the 2009 Ph.D. Regulations or were to earn them under that regime were entitled to the exemption from taking the NET.14. This meant that a large group of Ph.D. holders (such as Dr. Jayakumar in this case) who had been awarded their doctoral degrees prior to 11.07.2009, i.e., the cut-off date under the 2009 UGCR, suddenly became disentitled to claim exemption and were per force made to appear and qualify in the NET. The UGC become aware of this situation and by two resolutions dated 12.08.2010 and 27.09.2010, opined that since the regulations are prospective in nature, all candidates having M. Phil. degree on or before 10.07.2009 and all persons who obtained the Ph.D. degree on or before 31.12.2009 and had registered themselves for the Ph.D. before this date, but would be awarded such degree subsequently, shall remain exempted from the requirement of NET for the purpose of appointment as Lecturer/Assistant Professor. However, as the facts discussed in P. Suseela (supra) reveal – the Central Government did not agree with the opinion of the UGC. Some correspondence took place between the two authorities i.e., the UGC and the Central Government. It was in the background of these facts that the petitioner in P. Suseela (supra) had approached the Allahabad High Court (as did some other candidates in other High Courts). The differing decisions of the various High Courts led to appeals before this court by Special Leave. In the batch of decided by P. Suseela (supra), the question of application of exemption from NET for candidates who obtained Ph.D. under the old regime (i.e., prior to the coming into the force of the 2009 Ph.D. Regulations) was considered – specially whether the distinction between pre and post 2009/10 UGCR Ph.D. holders amounted to an impermissible classification, whereby one set (pre-2009) was denied exemption which the other set (post 2009) was entitled to.15. This court in P. Suseela (supra) ruled that since the Central Government was the final authority under the UGC Act, it had the final say with regard to how the 2009/10 UGCR were going to operate. It was held that the regulations had to be construed in such a manner that only those acquiring their Ph.D. degree or after 11.07.2009 in terms of the 2009 Ph.D. Regulations were entitled to the exemption.16. The facts of this case would reveal that the selection process was completed in 2012. There is no doubt that at that stage, the 2009 Ph.D. Regulations and 2009/10 UGCR were in force. Yet the University appointed Dr. Jayakumar by applying the existing standards as understood by it. According to the University, the 2009/10 UGCR was incorporated in its statute only in 2013. In the opinion of this court, that detail is irrelevant. What is undeniable is that like Dr. Jayakumar, there are perhaps hundreds of other Ph.D. candidates who had secured their degrees prior to the 2009 Ph.D. Regulations and who were, till the 2009/10 UGCR were brought into force, entitled to claim exemption from NET in every selection for any teaching vacancy in any university in India. This state of affairs led the UGC to issue clarifications, which the Central Government did not agree to. The appellant Dr. Jayakumar fell within that category of Ph.D. holders for whom the UGC intended to soften the rigors of the 2009/10 UGCR. However, lack of approval by the Central Government led to litigation which culminated in P. Suseela (supra).17. P. Suseela (supra) appears facially, to adversely clinch the issue with respect to pre-2009 Ph.D. holders. The UGC perhaps realized the hardship which they had to endure (with many of them even appointed in various universities on account of the resolution adopted in UGCs 471st meeting on 12.08.2010), and therefore amended the regulations once more (2016 UGCR), which read as follows:The proviso prescribed under Regulation 3.3. J, 4.4. J, 4.4.2, 4.4.2.2, 4.4.2.3, 4.5.3 and 4.6.3 in the University Grants Commission (Minimum qualifications for appointment of teachers and other academic staff in Universities and Colleges and other measures for the maintenance of standards in higher education) (3th Amendment) Regulations, 2016 regarding exemption to the candidates registered for Ph.D. programme prior to July 11, 2009 shall stand amended and be read as under:-Provided further, the award of degree to candidates registered for the M.Phil. / Ph.D. programme prior to July 11, 2009, shall be governed by the provisions of the then existing Ordinances/Bylaws/Regulations of the Institutions awarding the degree and the Ph.D. candidates shall be exempted from the requirement of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities / Colleges / institutions subject to the fulfilment of the following conditions… (Reg. 3, 2016 UGCR)18. The intention of the UGC to protect the pre-2009 Ph.D. holders, who may have been appointed in various universities and taught for many years, is evidently clear in the language adopted. To make the intention even clearer, the 2018 UGCR, published on 18.07.2018, bifurcated the pre- and post-2009 Ph.D. holders into two groups, and allowed both exemption from taking the NET, as follows:The National Eligibility Test (NET) or an accredited test (State Level Eligibility Test SLET /SET) shall remain the minimum eligibility for appointment of Assistant Professor and equivalent positions wherever provided in these Regulations. Further, SLET/ SET shall be valid as the minimum eligibility for direct recruitment to Universities /Colleges /Institutions in the respective state only:Provided that candidates who have been awarded a Ph.D. Degree in accordance with the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil./Ph.D. Degree) Regulation, 2009, or the University Grants Commission (Minimum Standards and Procedure for Award of M.Phil. / Ph.D. Degree) Regulation,2016, and their subsequent amendments from time to time, as the case may be, shall be exempted from the requirement of the minimum eligibility condition of NET/SLET/SET for recruitment and appointment of Assistant Professor or any equivalent position in any University, College or Institution.Provided further that the award of degree to candidates registered for the M.Phil. / Ph.D. programme prior to July 11, 2009, shall be governed by the provisions of the then existing Ordinances / Bye-laws / Regulations of the Institutions awarding the degree. All such Ph.D. candidates shall be exempted from the requirement of NET/SLET/SET for recruitment and appointment of Assistant Professor or equivalent positions in Universities/Colleges/Institutions subject to the fulfillment of the following conditions… (Reg. 3.3(I), 2018 UGCR)19. This court did not have the benefit of examining these amendments to the regulations in P. Suseela (supra) or Manoj Sharma (supra). To construe them as applying only prospectively, would give rise to an absurdity, and defeat the purpose for which the amendment was promulgated. The manner of interpretation of amendments, where the language adopted gives clear inference of retrospective application, was determined by this court in Rafiquennessa v. Lal Bahadur Chetri (Dead) Through His Representatives and Ors., which pertained to the bar on eviction of tenants brought about retrospectively by an amendment:In order to make the statement of the law relating to the relevant rule of construction which has to be adopted in dealing with the effect of statutory provisions in this connection, we ought to add that retrospective operation of a statutory provision can be inferred even in cases where such retroactive operation appears to be clearly implicit in the provision construed in the context where it occurs. In other words, a statutory provision is held to be retroactive either when it is so declared by express terms, or the intention to make it retroactive clearly follows from the relevant words and the context in which they occur [Rafiquennessa v. Lal Bahadur Chetri (Dead) Through His Representatives and Ors., (1964) 6 SCR 876 , para 9].This interpretation has withstood the test of time, and was upheld in the decision of Darshan Singh vs. Ram Pal Singh & Ors., 1990 (Supp) 3 SCR 212, para 12 which succinctly stated:Courts will construe a provision as conferring power to act retroactively when clear words are used.20. Further, in Shyam Sunder v. Ram Kumar (2001) 8 SCC 24, para 39, a Constitution Bench of this court discussed the scope and ambit of a declaratory law and observed:Lastly, it was contended on behalf of the Appellants that the amending Act whereby new Section 15 of the Act has been substituted is declaratory and, therefore, has retroactive operation. Ordinarily when an enactment declares the previous law, it requires to be given retroactive effect. The function of a declaratory statute is to supply an omission or to explain a previous statute and when such an Act is passed, it comes into effect when the previous enactment was passed. The legislative power to enact law includes the power to declare what was the previous law and when such a declaratory Act is passed, invariably it has been held to be retrospective. Mere absence of use of the word declaration in an Act explaining what was the law before may not appear to be a declaratory Act but if the court finds an Act as declaratory or explanatory, it has to be construed as retrospective. Conversely where a statute uses the word declaratory, the words so used may not be sufficient to hold that the statute is a declaratory Act as words may be used in order to bring into effect new law.22. This court is unpersuaded by such contentions. In situations such as these, a retrospective restoration of rights which had earlier been taken away, will certainly affect pending proceedings - however, it is the duty of the courts, whether trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same (G.P. Singh, Principles of Statutory Interpretation (14th Edn.), Pg. 631). If on such consideration, it is held by the court that an amendment speaks a language which expressly or by clear intendment takes in even pending matters, the court of first instance as well as the court of appeal must have regard to the intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance Noorunissa Begum v. Brij Kishore Sanghi, (2015) 17 SCC 128, para 28.23. When an enactment or an amendment is declaratory, curative or clarificatory, impelled by a felt need to make clear what was always intended, such amendment is usually meant to operate from an antecedent date, or to cover antecedent events. This position was clarified in Commissioner of Income Tax, Bhopal vs. Shelly Products & Ors., (2003) 5 SCC 461, para 38 where this court, while interpreting an amendment, held that:It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the revenue to refund the entire amount of income-tax paid by the assessee where the revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear a meaning of a provision of the principal Act and make explicit that which was already implicit.24. Likewise, in Zile Singh v State of Haryana Zile Singh v State of Haryana, 2004 (8) SCC 1, para 14, this court, quoted from G.P. Singhs Principles of Statutory Interpretation (9th Edn.), and applied the relevant rule of construction:If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended...An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect.25. Another argument raised by the respondent was that this courts decision in Manoj Sharma (supra) squarely held against the appellants. We disagree. In Manoj Sharma (supra), the respondents had obtained M.Phil. degrees under distance education programs, which was de-recognized by the 2009 Ph.D. Regulations. The Madhya Pradesh High Court held [Manoj Sharma v State of Madhya Pradesh, W.P. (C) No. 3290 of 2012, dated 29.08.2012 [MP HC]] that such de-recognition was prospective in nature, and their M.Phil. degrees were not rendered ineffective, which was upheld by this court State of Madhya Pradesh v. Manoj Sharma, 2018 (3) SCC 329, para 12. As far as the issue of application of 2009 UGCR was concerned, the same was restricted to only MPhil degree holders, wherein the 2009 UGCR removed the NET exemption granted for M.Phil. degree holders, and retained it only for Ph.D. holders in accordance with 2009 Ph.D. Regulations. Again, this court was not afforded the opportunity to analyse the 2016 or 2018 UGCR, as those were not raised before it (the respondents were unrepresented before this court). Thus, we find limited applicability of Manoj Sharma (supra) to the present case.26. The logic pervading all the versions of the UGCR from 1993-2018 (as discussed above) to exempt M. Phil. / Ph.D. holders from qualifying in the NET was perhaps premised on the understanding that such a doctorate in ones chosen subject, involving years of study, would render a greater understanding of the subject compared to most other candidates taking the NET who have only obtained a Masters degree. Such qualification (M. Phil. or Ph. D.) is undoubtedly awarded for a proven proficiency of the candidate in the concerned subject or discipline. This is apparent from the minimum qualification requirements of different positions as well – for e.g., while a Masters degree is sufficient for application to the post of Assistant Professor, a Ph.D. is required for applying to the post of Associate Professor onwards [See Reg. 4.1, 2018 UGCR, applicable to all disciplines of Arts, Commerce, Humanities, Education, Law, Social Sciences, Sciences, Languages, Library Science, Physical Education, and Journalism & Mass Communication]. To interpret the 2018 UGCR prospectively would imply that a pre-2009 Ph.D. holders appointment would be rendered illegal, and after having taught for several years, he/she would lose his/her seniority and all accrued benefits and would now have to take the NET in order to teach – which is clearly unwarranted. This court therefore, holds that Dr. Jayakumars appointment is protected by the 2016 UGCR, which is applicable retrospectively. | 1 | 5,699 | 2,950 | ### 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:
uses the word declaratory, the words so used may not be sufficient to hold that the statute is a declaratory Act as words may be used in order to bring into effect new law. 21. The respondents herein had submitted that it was not the UGCs intention to give retrospective effect to the 2016 UGCR, even though the UGC had the power to do so under Section 26(3) of the UGC Act. It was additionally urged that in such circumstances, the court should not interpret the amendments so as to confer such benefits retrospectively, especially to pending proceedings. 22. This court is unpersuaded by such contentions. In situations such as these, a retrospective restoration of rights which had earlier been taken away, will certainly affect pending proceedings - however, it is the duty of the courts, whether trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same (G.P. Singh, Principles of Statutory Interpretation (14th Edn.), Pg. 631). If on such consideration, it is held by the court that an amendment speaks a language which expressly or by clear intendment takes in even pending matters, the court of first instance as well as the court of appeal must have regard to the intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance Noorunissa Begum v. Brij Kishore Sanghi, (2015) 17 SCC 128, para 28. 23. When an enactment or an amendment is declaratory, curative or clarificatory, impelled by a felt need to make clear what was always intended, such amendment is usually meant to operate from an antecedent date, or to cover antecedent events. This position was clarified in Commissioner of Income Tax, Bhopal vs. Shelly Products & Ors., (2003) 5 SCC 461, para 38 where this court, while interpreting an amendment, held that: It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the revenue to refund the entire amount of income-tax paid by the assessee where the revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear a meaning of a provision of the principal Act and make explicit that which was already implicit. 24. Likewise, in Zile Singh v State of Haryana Zile Singh v State of Haryana, 2004 (8) SCC 1, para 14, this court, quoted from G.P. Singhs Principles of Statutory Interpretation (9th Edn.), and applied the relevant rule of construction: If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended...An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect. 25. Another argument raised by the respondent was that this courts decision in Manoj Sharma (supra) squarely held against the appellants. We disagree. In Manoj Sharma (supra), the respondents had obtained M.Phil. degrees under distance education programs, which was de-recognized by the 2009 Ph.D. Regulations. The Madhya Pradesh High Court held [Manoj Sharma v State of Madhya Pradesh, W.P. (C) No. 3290 of 2012, dated 29.08.2012 [MP HC]] that such de-recognition was prospective in nature, and their M.Phil. degrees were not rendered ineffective, which was upheld by this court State of Madhya Pradesh v. Manoj Sharma, 2018 (3) SCC 329, para 12. As far as the issue of application of 2009 UGCR was concerned, the same was restricted to only MPhil degree holders, wherein the 2009 UGCR removed the NET exemption granted for M.Phil. degree holders, and retained it only for Ph.D. holders in accordance with 2009 Ph.D. Regulations. Again, this court was not afforded the opportunity to analyse the 2016 or 2018 UGCR, as those were not raised before it (the respondents were unrepresented before this court). Thus, we find limited applicability of Manoj Sharma (supra) to the present case. 26. The logic pervading all the versions of the UGCR from 1993-2018 (as discussed above) to exempt M. Phil. / Ph.D. holders from qualifying in the NET was perhaps premised on the understanding that such a doctorate in ones chosen subject, involving years of study, would render a greater understanding of the subject compared to most other candidates taking the NET who have only obtained a Masters degree. Such qualification (M. Phil. or Ph. D.) is undoubtedly awarded for a proven proficiency of the candidate in the concerned subject or discipline. This is apparent from the minimum qualification requirements of different positions as well – for e.g., while a Masters degree is sufficient for application to the post of Assistant Professor, a Ph.D. is required for applying to the post of Associate Professor onwards [See Reg. 4.1, 2018 UGCR, applicable to all disciplines of Arts, Commerce, Humanities, Education, Law, Social Sciences, Sciences, Languages, Library Science, Physical Education, and Journalism & Mass Communication]. To interpret the 2018 UGCR prospectively would imply that a pre-2009 Ph.D. holders appointment would be rendered illegal, and after having taught for several years, he/she would lose his/her seniority and all accrued benefits and would now have to take the NET in order to teach – which is clearly unwarranted. This court therefore, holds that Dr. Jayakumars appointment is protected by the 2016 UGCR, which is applicable retrospectively.
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1
### Explanation:
was the previous law and when such a declaratory Act is passed, invariably it has been held to be retrospective. Mere absence of use of the word declaration in an Act explaining what was the law before may not appear to be a declaratory Act but if the court finds an Act as declaratory or explanatory, it has to be construed as retrospective. Conversely where a statute uses the word declaratory, the words so used may not be sufficient to hold that the statute is a declaratory Act as words may be used in order to bring into effect new law.22. This court is unpersuaded by such contentions. In situations such as these, a retrospective restoration of rights which had earlier been taken away, will certainly affect pending proceedings - however, it is the duty of the courts, whether trying original proceedings or hearing an appeal, to take notice of the change in law affecting pending actions and to give effect to the same (G.P. Singh, Principles of Statutory Interpretation (14th Edn.), Pg. 631). If on such consideration, it is held by the court that an amendment speaks a language which expressly or by clear intendment takes in even pending matters, the court of first instance as well as the court of appeal must have regard to the intention so expressed, and the court of appeal may give effect to such a law even after the judgment of the court of first instance Noorunissa Begum v. Brij Kishore Sanghi, (2015) 17 SCC 128, para 28.23. When an enactment or an amendment is declaratory, curative or clarificatory, impelled by a felt need to make clear what was always intended, such amendment is usually meant to operate from an antecedent date, or to cover antecedent events. This position was clarified in Commissioner of Income Tax, Bhopal vs. Shelly Products & Ors., (2003) 5 SCC 461, para 38 where this court, while interpreting an amendment, held that:It seeks to clarify the law so as to remove doubts leading to the courts giving conflicting decisions, and in several cases directing the revenue to refund the entire amount of income-tax paid by the assessee where the revenue was not in a position to frame a fresh assessment. Being clarificatory in nature it must be held to be retrospective, in the facts and circumstances of the case. It is well settled that the legislature may pass a declaratory Act to set aside what the legislature deems to have been a judicial error in the interpretation of statute. It only seeks to clear a meaning of a provision of the principal Act and make explicit that which was already implicit.24. Likewise, in Zile Singh v State of Haryana Zile Singh v State of Haryana, 2004 (8) SCC 1, para 14, this court, quoted from G.P. Singhs Principles of Statutory Interpretation (9th Edn.), and applied the relevant rule of construction:If a new Act is to explain an earlier Act, it would be without object unless construed retrospective. An explanatory Act is generally passed to supply an obvious omission or to clear up doubts as to the meaning of the previous Act. It is well settled that if a statute is curative or merely declaratory of the previous law retrospective operation is generally intended...An amending Act may be purely declaratory to clear a meaning of a provision of the principal Act which was already implicit. A clarificatory amendment of this nature will have retrospective effect.25. Another argument raised by the respondent was that this courts decision in Manoj Sharma (supra) squarely held against the appellants. We disagree. In Manoj Sharma (supra), the respondents had obtained M.Phil. degrees under distance education programs, which was de-recognized by the 2009 Ph.D. Regulations. The Madhya Pradesh High Court held [Manoj Sharma v State of Madhya Pradesh, W.P. (C) No. 3290 of 2012, dated 29.08.2012 [MP HC]] that such de-recognition was prospective in nature, and their M.Phil. degrees were not rendered ineffective, which was upheld by this court State of Madhya Pradesh v. Manoj Sharma, 2018 (3) SCC 329, para 12. As far as the issue of application of 2009 UGCR was concerned, the same was restricted to only MPhil degree holders, wherein the 2009 UGCR removed the NET exemption granted for M.Phil. degree holders, and retained it only for Ph.D. holders in accordance with 2009 Ph.D. Regulations. Again, this court was not afforded the opportunity to analyse the 2016 or 2018 UGCR, as those were not raised before it (the respondents were unrepresented before this court). Thus, we find limited applicability of Manoj Sharma (supra) to the present case.26. The logic pervading all the versions of the UGCR from 1993-2018 (as discussed above) to exempt M. Phil. / Ph.D. holders from qualifying in the NET was perhaps premised on the understanding that such a doctorate in ones chosen subject, involving years of study, would render a greater understanding of the subject compared to most other candidates taking the NET who have only obtained a Masters degree. Such qualification (M. Phil. or Ph. D.) is undoubtedly awarded for a proven proficiency of the candidate in the concerned subject or discipline. This is apparent from the minimum qualification requirements of different positions as well – for e.g., while a Masters degree is sufficient for application to the post of Assistant Professor, a Ph.D. is required for applying to the post of Associate Professor onwards [See Reg. 4.1, 2018 UGCR, applicable to all disciplines of Arts, Commerce, Humanities, Education, Law, Social Sciences, Sciences, Languages, Library Science, Physical Education, and Journalism & Mass Communication]. To interpret the 2018 UGCR prospectively would imply that a pre-2009 Ph.D. holders appointment would be rendered illegal, and after having taught for several years, he/she would lose his/her seniority and all accrued benefits and would now have to take the NET in order to teach – which is clearly unwarranted. This court therefore, holds that Dr. Jayakumars appointment is protected by the 2016 UGCR, which is applicable retrospectively.
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Kok Singh Vs. Deokabai | 3, 100 in three instalments. Deojibhai died in 1955 leaving his widow, the respondent, and a son who died subsequently leaving his widow Manibai. Manibai filed a suit in 1956 in the Bombay City Civil Court against Deokabai, the respondent, claiming a share in the property left by her father-in-law, Deojibhai. This suit was compromised and Deokabai was appointed receiver of the estate of Deojibhai with a direction by the Court to realise his assets and to pay a certain amount to Manibai. Deokabai, the respondent, filed the suit from which the appeal arises, on the basis that the appellant defaulted to pay the full purchase money of the property and that she was entitled to the same with interest.2. The appellant contended that the charge could not be enforced against the property as it formed part of this occupancy holding and that, besides the sum of Rs. 3, 100 he has made other payments totalling Rs. 9, 500. The trial Court found that no decree could be passed for enforcing the charge against the property as it was held in occupancy right the appellant, but the court gave a personal decree against the appellant for Rs. 21, 375. The appellant appealed against the decree to the High Court. The Court found that the respondent was entitled to enforce the charge on the property and granted a decree on that basis, but negatived the claim of the respondent for a personal decree against the appellant on the ground of limitation. In other respects, the decree of the trial Court was confirmed. It is against this decree that the present appeal, by certificate, has been filed.3. Two points were taken on behalf of the appellant. One was that the Court was not competent to pass a decree creating a charge on the property in view of the fact that the property was held by the appellant as occupancy tenant. This contention was negatived by the High Court on the ground that the prohibition to pass a decree for sale or for closure of any right of an occupancy tenant in his holding was not in existence in 1952 when the suit was filed. We think the High Court was right in its conclusion as Section 12 of the Central Provinces Tenancy Act, 1920, which contained the prohibition, had been repealed before the decree was passed.4. The second point raised by the appellant was that the respondent did not appeal from the decree of the trial Court negativing her claim in the suit for a charge on the property. It was contended that the High Court was wrong in granting a decree for enforcement of the charge as the decree of the trial Court became final so far as the respondent was concerned as she did not file any appeal therefor. We are unable to accept this contention. Under Order 41, Rule 33 of the Civil Procedure Code, the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree. Order 41, Rule 33 provides :The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass to make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection :Provided that the appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.5. In Radhika Mohan v. Sudhir Chandra (AIR 1937 Cal 10 : 40 CWN 1397 : 168 IC 646), the facts were these : Under an annuity bond, the plaintiff there was granted a certain allowance per month. In a will executed by the executor of the annuity bond, it was provided that the annuity was to be a charge on certain properties. As the annuity allowance fell in arrears, the plaintiff brought a suit to enforce it praying for a charge. The trial Court decreed the suit but did not grant a charge. The lower appellate Court exonerated the defendants from personal liability but held that there should be a charge on the property. In second appeal by the defendants it was contended by them that the lower appellate Court could not create a charge as, in the lower appellate Court the plaintiff had failed to take objection to that part of the trial Courts decree. The High Court held that under Order 41, Rule 33, Civil Procedure Code, the lower appellate Court was competent to vary the decree by providing for enforcement of the charge and that the decree passed by it was right.6. In Giani Ram v. Ramji Lal the Court said that in Order 41, Rule 33, the expression "which ought to have been passed" means "what ought in law to have been passed" and if appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the court below, it may pass or make such further or other decree or order as the justice of the case may require.7. Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial Court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.8. There is no substance in the contention that all the payments made by the appellant have not been given credit to by the respondent in view of the concurrent findings of the courts. | 0[ds]We think the High Court was right in its conclusion as Section 12 of the Central Provinces Tenancy Act, 1920, which contained the prohibition, had been repealed before the decree wasare unable to accept thisOrder 41, Rule 33 of the Civil Procedure Code, the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree.Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial Court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.8. There is no substance in the contention that all the payments made by the appellant have not been given credit to by the respondent in view of the concurrent findings of the courts. | 0 | 1,188 | 164 | ### 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:
3, 100 in three instalments. Deojibhai died in 1955 leaving his widow, the respondent, and a son who died subsequently leaving his widow Manibai. Manibai filed a suit in 1956 in the Bombay City Civil Court against Deokabai, the respondent, claiming a share in the property left by her father-in-law, Deojibhai. This suit was compromised and Deokabai was appointed receiver of the estate of Deojibhai with a direction by the Court to realise his assets and to pay a certain amount to Manibai. Deokabai, the respondent, filed the suit from which the appeal arises, on the basis that the appellant defaulted to pay the full purchase money of the property and that she was entitled to the same with interest.2. The appellant contended that the charge could not be enforced against the property as it formed part of this occupancy holding and that, besides the sum of Rs. 3, 100 he has made other payments totalling Rs. 9, 500. The trial Court found that no decree could be passed for enforcing the charge against the property as it was held in occupancy right the appellant, but the court gave a personal decree against the appellant for Rs. 21, 375. The appellant appealed against the decree to the High Court. The Court found that the respondent was entitled to enforce the charge on the property and granted a decree on that basis, but negatived the claim of the respondent for a personal decree against the appellant on the ground of limitation. In other respects, the decree of the trial Court was confirmed. It is against this decree that the present appeal, by certificate, has been filed.3. Two points were taken on behalf of the appellant. One was that the Court was not competent to pass a decree creating a charge on the property in view of the fact that the property was held by the appellant as occupancy tenant. This contention was negatived by the High Court on the ground that the prohibition to pass a decree for sale or for closure of any right of an occupancy tenant in his holding was not in existence in 1952 when the suit was filed. We think the High Court was right in its conclusion as Section 12 of the Central Provinces Tenancy Act, 1920, which contained the prohibition, had been repealed before the decree was passed.4. The second point raised by the appellant was that the respondent did not appeal from the decree of the trial Court negativing her claim in the suit for a charge on the property. It was contended that the High Court was wrong in granting a decree for enforcement of the charge as the decree of the trial Court became final so far as the respondent was concerned as she did not file any appeal therefor. We are unable to accept this contention. Under Order 41, Rule 33 of the Civil Procedure Code, the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree. Order 41, Rule 33 provides :The appellate Court shall have power to pass any decree and make any order which ought to have been passed or made and to pass to make such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection :Provided that the appellate Court shall not make any order under Section 35-A, in pursuance of any objection on which the Court from whose decree the appeal is preferred has omitted or refused to make such order.5. In Radhika Mohan v. Sudhir Chandra (AIR 1937 Cal 10 : 40 CWN 1397 : 168 IC 646), the facts were these : Under an annuity bond, the plaintiff there was granted a certain allowance per month. In a will executed by the executor of the annuity bond, it was provided that the annuity was to be a charge on certain properties. As the annuity allowance fell in arrears, the plaintiff brought a suit to enforce it praying for a charge. The trial Court decreed the suit but did not grant a charge. The lower appellate Court exonerated the defendants from personal liability but held that there should be a charge on the property. In second appeal by the defendants it was contended by them that the lower appellate Court could not create a charge as, in the lower appellate Court the plaintiff had failed to take objection to that part of the trial Courts decree. The High Court held that under Order 41, Rule 33, Civil Procedure Code, the lower appellate Court was competent to vary the decree by providing for enforcement of the charge and that the decree passed by it was right.6. In Giani Ram v. Ramji Lal the Court said that in Order 41, Rule 33, the expression "which ought to have been passed" means "what ought in law to have been passed" and if appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the court below, it may pass or make such further or other decree or order as the justice of the case may require.7. Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial Court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.8. There is no substance in the contention that all the payments made by the appellant have not been given credit to by the respondent in view of the concurrent findings of the courts.
### Response:
0
### Explanation:
We think the High Court was right in its conclusion as Section 12 of the Central Provinces Tenancy Act, 1920, which contained the prohibition, had been repealed before the decree wasare unable to accept thisOrder 41, Rule 33 of the Civil Procedure Code, the High Court was competent to pass a decree for the enforcement of the charge in favour of the respondent notwithstanding the fact that the respondent did not file any appeal from the decree.Therefore, we hold that even if the respondent did not file any appeal from the decree of the trial Court, that was no bar to the High Court passing a decree in favour of the respondent for the enforcement of the charge.8. There is no substance in the contention that all the payments made by the appellant have not been given credit to by the respondent in view of the concurrent findings of the courts.
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Nilambur Rubber Company Limited Vs. State of Kerala & Others | (Prayer: Civil Appeals Nos. 994 and 995 of 1991 with Civil Appeals Nos. 3275 to 3288 of 1997 and T.P. (C.) No. 29 of 1992 (Civil Appeals Nos. 994 and 995 of 1991 are from the judgment and order dated September 1, 1989, of the Kerala High Court in T.R.C. Nos. 99 and 100 of 1989) (Civil Appeals Nos. 3275 to 3288 of 1997 are from the common judgment and order dated August 12, 1996, of the Madras High Court in W.P. Nos. 1196, etc. of 1990 and 16150, etc., of 1991. The judgment of the High Court decided on January 13, 1998.) We shall deal with the facts for the assessment year 1978-79. The facts for the assessment year 1980-81 are similar. The assessee-company owns substantial estates in the State of Kerala and plants rubber thereon. The latex which is obtained from the rubber trees is converted into rubber sheets and sold in Kerala and outside. We are here concerned with sales made outside Kerala, The assessing authority found that the company was a dealer within the meaning of that word in the Central Sales Tax Act and he made an assessment upon that basis. The Appellate Assistant Commissioner confirmed the assessment. The company approached the Sales Tax Tribunal, which reversed the view taken by the lower authorities. It did so upon the basis that it had not been established that the company was actually engaged in the purchase and/or sale of rubber or that the objects specified in the companys Memorandum and Articles of Association were actually being carried on. In the absence of any finding by the assessing authority that the company was actually engaged in the business of purchase and sale, the Tribunal was unable to accept the Revenues contention that the company fell within the definition of "dealer". The Revenue filed a tax revision case before the High Court at Kerala against the findings of the Tribunal. The High Court noted that the definition of "dealer" was very wide and remanded the matter to the Tribunal to find out the intention with which the company had formed a selling organisation and other relevant facts. The Tribunal, on remand, found that the amended definition of the term "dealer" was wide enough to take in the company. It said :"Considering the amended provisions defining business and dealer in the CST Act together with the various clauses of Memorandum and Articles of Association of the appellant-company, we find that the transactions of the company will come squarely under the terms business and dealer and so, they are liable to be assessed under the CST Act. The fact that the appellants are registered under the CST Act and they have collected CST on their inter-State sales is also evident from the records." *From the decision of the Tribunal on remand the company moved the High Court in revision. By its brief judgment referring to an earlier judgment where the same question had been considered in some detail, the High Court held that the company was engaged in a regular systematic activity and when it sold rubber produced by it inter-State, it was a dealer. The revision was, therefore, dismissed, and the company is here against the order by special leave. 3. Learned counsel for the company drew our attention to the judgment of this Court in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Travancore Rubber and Tea Co. This was a case of a company growing rubber trees on estates in Kerala. The only facts that were established were that it was converting the latex tapped from its rubber trees into sheets which it sold to its customers, and that the conversion of latex into rubber sheets was a process essential for the transport and marketing of the product. This Court said : "Apart from the facts that the assessee converts the latex tapped from its rubber trees into sheets - a process essential for the transport and marketing of the produce concerned - and it sells these sheets, nothing else has been found. No effort has been made to find out the intention with which the assessee was formed, the selling organisation it had set up and other relevant facts. On the facts found in this case it seems to us that the department has not discharged the onus." * This Court, therefore, dismissed the appeal filed by the Revenue, declining to remit the matter to the Sales Tax Officer to enable him to find fresh facts. The decision in this case was followed in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Midland Rubber and Produce Co. Ltd. and the appeal by the Revenue again failed.4. In the present case, despite the remand ordered by the High Court earlier, the Revenue failed to bring on record facts which would justify the conclusion that the company is a dealer. The Revenue was the appellant in the two cases that we have just cited. It could not have been unaware of the onus that it was required to discharge, but it failed to do so. Even so, we are persuaded to remand the matter to the Tribunal so that the Revenue may have a last opportunity to produce such facts as are requisite to support its case. The company would, of course, also be entitled to lead such evidence as it thinks necessary to counter the Revenues case. | 1[ds]4. In the present case, despite the remand ordered by the High Court earlier, the Revenue failed to bring on record facts which would justify the conclusion that the company is a dealer. The Revenue was the appellant in the two cases that we have just cited. It could not have been unaware of the onus that it was required to discharge, but it failed to do so. Even so, we are persuaded to remand the matter to the Tribunal so that the Revenue may have a last opportunity to produce such facts as are requisite to support its case. The company would, of course, also be entitled to lead such evidence as it thinks necessary to counter the Revenues case. | 1 | 1,002 | 137 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
(Prayer: Civil Appeals Nos. 994 and 995 of 1991 with Civil Appeals Nos. 3275 to 3288 of 1997 and T.P. (C.) No. 29 of 1992 (Civil Appeals Nos. 994 and 995 of 1991 are from the judgment and order dated September 1, 1989, of the Kerala High Court in T.R.C. Nos. 99 and 100 of 1989) (Civil Appeals Nos. 3275 to 3288 of 1997 are from the common judgment and order dated August 12, 1996, of the Madras High Court in W.P. Nos. 1196, etc. of 1990 and 16150, etc., of 1991. The judgment of the High Court decided on January 13, 1998.) We shall deal with the facts for the assessment year 1978-79. The facts for the assessment year 1980-81 are similar. The assessee-company owns substantial estates in the State of Kerala and plants rubber thereon. The latex which is obtained from the rubber trees is converted into rubber sheets and sold in Kerala and outside. We are here concerned with sales made outside Kerala, The assessing authority found that the company was a dealer within the meaning of that word in the Central Sales Tax Act and he made an assessment upon that basis. The Appellate Assistant Commissioner confirmed the assessment. The company approached the Sales Tax Tribunal, which reversed the view taken by the lower authorities. It did so upon the basis that it had not been established that the company was actually engaged in the purchase and/or sale of rubber or that the objects specified in the companys Memorandum and Articles of Association were actually being carried on. In the absence of any finding by the assessing authority that the company was actually engaged in the business of purchase and sale, the Tribunal was unable to accept the Revenues contention that the company fell within the definition of "dealer". The Revenue filed a tax revision case before the High Court at Kerala against the findings of the Tribunal. The High Court noted that the definition of "dealer" was very wide and remanded the matter to the Tribunal to find out the intention with which the company had formed a selling organisation and other relevant facts. The Tribunal, on remand, found that the amended definition of the term "dealer" was wide enough to take in the company. It said :"Considering the amended provisions defining business and dealer in the CST Act together with the various clauses of Memorandum and Articles of Association of the appellant-company, we find that the transactions of the company will come squarely under the terms business and dealer and so, they are liable to be assessed under the CST Act. The fact that the appellants are registered under the CST Act and they have collected CST on their inter-State sales is also evident from the records." *From the decision of the Tribunal on remand the company moved the High Court in revision. By its brief judgment referring to an earlier judgment where the same question had been considered in some detail, the High Court held that the company was engaged in a regular systematic activity and when it sold rubber produced by it inter-State, it was a dealer. The revision was, therefore, dismissed, and the company is here against the order by special leave. 3. Learned counsel for the company drew our attention to the judgment of this Court in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Travancore Rubber and Tea Co. This was a case of a company growing rubber trees on estates in Kerala. The only facts that were established were that it was converting the latex tapped from its rubber trees into sheets which it sold to its customers, and that the conversion of latex into rubber sheets was a process essential for the transport and marketing of the product. This Court said : "Apart from the facts that the assessee converts the latex tapped from its rubber trees into sheets - a process essential for the transport and marketing of the produce concerned - and it sells these sheets, nothing else has been found. No effort has been made to find out the intention with which the assessee was formed, the selling organisation it had set up and other relevant facts. On the facts found in this case it seems to us that the department has not discharged the onus." * This Court, therefore, dismissed the appeal filed by the Revenue, declining to remit the matter to the Sales Tax Officer to enable him to find fresh facts. The decision in this case was followed in Deputy Commissioner of Agricultural Income-tax and Sales Tax, Quilon v. Midland Rubber and Produce Co. Ltd. and the appeal by the Revenue again failed.4. In the present case, despite the remand ordered by the High Court earlier, the Revenue failed to bring on record facts which would justify the conclusion that the company is a dealer. The Revenue was the appellant in the two cases that we have just cited. It could not have been unaware of the onus that it was required to discharge, but it failed to do so. Even so, we are persuaded to remand the matter to the Tribunal so that the Revenue may have a last opportunity to produce such facts as are requisite to support its case. The company would, of course, also be entitled to lead such evidence as it thinks necessary to counter the Revenues case.
### Response:
1
### Explanation:
4. In the present case, despite the remand ordered by the High Court earlier, the Revenue failed to bring on record facts which would justify the conclusion that the company is a dealer. The Revenue was the appellant in the two cases that we have just cited. It could not have been unaware of the onus that it was required to discharge, but it failed to do so. Even so, we are persuaded to remand the matter to the Tribunal so that the Revenue may have a last opportunity to produce such facts as are requisite to support its case. The company would, of course, also be entitled to lead such evidence as it thinks necessary to counter the Revenues case.
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Public Services Tribunal Bar Association Vs. State Of U.P. | reasons given by us for upholding the validity of Sub-section (5-B) would equally apply for upholding the validity of Sub-section (5-C) as well. 42. Sub-sections (5-B) and (5-C) are not arbitrary as contended by the counsel for the appellant as this Court in earlier cases has taken the view that orders of suspension, dismissal, removal, reduction in rank, termination, compulsory retirement or reversion of a public servant normally should not be interfered with at an interim stage as the employee can be suitably compensated in case the order of suspension, dismissal, removal, etc. in found not to be in order. The cases in which the operation of orders of dismissal, removal, termination etc. is stayed by way of interim order is later on upheld at the final stage then it results in wrong usurpation of the office by the employee during the operation of the interim order. This act becomes irreversible and the employer cannot be suitably compensated by moulding the relief at the final stage. In an extreme and rare case where the order is prima facie on the face of it is mala fide or bad in law then it is open to a public servant to approach the High Court by filing a writ petition under Article 226 of the Constitution of India for stay of such an order. The employee is not left without any remedy. In an extreme and rare case an employee is to approach the High Court for interim relief resulting in some extra expense by itself is no reason to strike down the Sub-section (5-B) being arbitrary and violative of Articles 14 and 16 of the Constitution of India. 43. The Principal Act was promulgated in 1976 for adjudication of the disputes pertaining to employment matters of public servants of the State Government and the employees of the Government Corporations and Companies, local authorities etc. and the jurisdiction of the civil courts for redressal of their grievances was taken away. It was set up with five Tribunals and each Tribunal was independent and consisted of one Judicial member and one administrative member. Out of them one member was the Chairman. Constitution of the Tribunal was challenged in the High Court successfully. Consequently, the Original Act was amended by U.P. Act No. 7 of 1992. Sub-sections 3 (1), (2), (3) and (6) were amended. The Tribunal was constituted of one Chairman, a Vice Chairman at least five Judicial Members and Five Administrative Members which were to function at different Benches consisting of a Single Member or two members for the disposal of such references of claims and other matters as ay be specified by the Chairman. Under the Act 7 of 1992 an Administrative Member could be appointed as Chairman and in fact Shri Venkatramani, IAS was appointed as the Chairman. This Act was challenged by filing a writ petition in Sanjai Kumar Srivastava in the High Court. It was contended that administrative member could not become a Chairman and the appointment of Chairman. Vice Chairman and members could not be made without consulting the Chief Justice of the State. This objection was upheld and accordingly Section 3(3)(c) and Section 3(4)(c) of the Act were struck down. State was permitted to make suitable amendments to bring about suitable amendments in the Act. It was also directed that in future all appointments to the Tribunal be made only after effective consultation with the Chief Justice of the State. Special Leave Petition filed against the judgment was dismissed by this Court. The Government thereafter deleted the offending clauses of Section 3(3)(c) and Section 3(4)(c) from the Act. Thereafter, Ordinance No. 17 of 1999 was promulgated which culminating in the passing of Act 5 of 2000. Section 3(2) of the Principal At was substituted for the words "a Vice-Chairman", the words "A vice-Chairman (Judicial) a Vice-Chairman (Administrative)". From now onwards there are two Vice Chairmen instead of one Chairman. In Section 3(4)(b) the words "or an Administrative" were deleted. Sub-section (4-A) was inserted which prescribed the qualification for appointment as Vice-Chairman (Administrative). Sub-section (4-A)(a) was the same as was earlier in Sub-section 4(b) by deleting the words "or an Administrative". The new Sub-section (4-A) (b) was an addition now added in 1999. This is in pari materia of Section 6 (2)(b) of the Administrative Tribunals Act, 1985 except the words. "Additional Secretary" instead of "Secretary" to the Government of India. Sub-Section (4-A) (b) is the same as the original Section 3(6) except adding the words as under: " "has adequate experience", the words "has, in the opinion of the State Government, adequate experience" have been added." Challenge to Sub-Section (4-A) (b) of Section 3 that the same is not in conformity with the judgment in Sanjai Kumar Srivastava case is unfounded because this sub-section is in pari materia with Section 6(2)(b) of the Administrative Tribunals Act, 1985. Sub-Section (7) in Section 3 was also substituted by adding the words "State Government after consultation with the Chief Justice for which proposal will be initiated by the State Government." In other words, the power of appointments with the State Government has been retained but the same has to be exercised in consultation with the Chief Justice of the High Court as directed by the High Court in Sanjai Kumar Srivastava case.44. Appointment of the Chairman, Vice-Chairman (Judicial) and (Administrative) and members has now to be made in consultation with the Chief Justice of the High Court. Submission that the amendment carried out in Section 3 regarding appo9intment of Chairman, Vice-Chairmen (Judicial) as well as (Administrative) and members is not in conformity with the corresponding provisions of Administrative Tribunals Act, 1985 has no substance. 45. For the reasons stated above, we find that the State Legislature was competent to enact the impugned provisions. Further that the provisions enacted are not arbitrary and therefore not violative of Articles 14, 16 or any other provisions of the Constitution. They are not against the basic structure of the Constitution of India either. | 0[ds]32. We agree with the view taken by the High Court that unless a clarification is made by the Legislature in the Act clarifying that an order would include an "omission" or "inaction" on the part of the authority, the "inaction" on the part of the authority can be challenged in High Court by filing the writ petition under Article 226 of the Constitution of India. It cannot be said that the public servant is left without a remedy to challenge any omission or inaction on the part of the authority. Inaction by itself is an independent cause of action and the High Court can effectively deal with the same.Transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the courts. This Court consistently has been taken a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner.The Principal Act was promulgated in 1976 for adjudication of the disputes pertaining to employment matters of public servants of the State Government and the employees of the Government Corporations and Companies, local authorities etc. and the jurisdiction of the civil courts for redressal of their grievances was taken away. It was set up with five Tribunals and each Tribunal was independent and consisted of one Judicial member and one administrative member. Out of them one member was the Chairman. Constitution of the Tribunal was challenged in the High Court successfully. Consequently, the Original Act was amended by U.P. Act No. 7 of 1992. Sub-sections 3 (1), (2), (3) and (6) were amended. The Tribunal was constituted of one Chairman, a Vice Chairman at least five Judicial Members and Five Administrative Members which were to function at different Benches consisting of a Single Member or two members for the disposal of such references of claims and other matters as ay be specified by the Chairman. Under the Act 7 of 1992 an Administrative Member could be appointed as Chairman and in fact Shri Venkatramani, IAS was appointed as the Chairman. This Act was challenged by filing a writ petition in Sanjai Kumar Srivastava in the High Court. It was contended that administrative member could not become a Chairman and the appointment of Chairman. Vice Chairman and members could not be made without consulting the Chief Justice of the State. This objection was upheld and accordingly Section 3(3)(c) and Section 3(4)(c) of the Act were struck down. State was permitted to make suitable amendments to bring about suitable amendments in the Act. It was also directed that in future all appointments to the Tribunal be made only after effective consultation with the Chief Justice of the State. Special Leave Petition filed against the judgment was dismissed by this Court. The Government thereafter deleted the offending clauses of Section 3(3)(c) and Section 3(4)(c) from the Act. Thereafter, Ordinance No. 17 of 1999 was promulgated which culminating in the passing of Act 5 of 2000. Section 3(2) of the Principal At was substituted for the words "a Vice-Chairman", the words "A vice-Chairman (Judicial) a Vice-Chairman (Administrative)". From now onwards there are two Vice Chairmen instead of one Chairman. In Section 3(4)(b) the words "or an Administrative" were deleted. Sub-section (4-A) was inserted which prescribed the qualification for appointment as Vice-Chairman (Administrative). Sub-section (4-A)(a) was the same as was earlier in Sub-section 4(b) by deleting the words "or an Administrative". The new Sub-section (4-A) (b) was an addition now added in 1999. This is in pari materia of Section 6 (2)(b) of the Administrative Tribunals Act, 1985 except the words. "Additional Secretary" instead of "Secretary" to the Government of India. Sub-Section (4-A) (b) is the same as the original Section 3(6) except adding the words as"has adequate experience", the words "has, in the opinion of the State Government, adequate experience" have beento Sub-Section (4-A) (b) of Section 3 that the same is not in conformity with the judgment in Sanjai Kumar Srivastava case is unfounded because this sub-section is in pari materia with Section 6(2)(b) of the Administrative Tribunals Act, 1985. Sub-Section (7) in Section 3 was also substituted by adding the words "State Government after consultation with the Chief Justice for which proposal will be initiated by the State Government." In other words, the power of appointments with the State Government has been retained but the same has to be exercised in consultation with the Chief Justice of the High Court as directed by the High Court in Sanjai Kumar Srivastava case.44. Appointment of the Chairman, Vice-Chairman (Judicial) and (Administrative) and members has now to be made in consultation with the Chief Justice of the High Court. Submission that the amendment carried out in Section 3 regarding appo9intment of Chairman, Vice-Chairmen (Judicial) as well as (Administrative) and members is not in conformity with the corresponding provisions of Administrative Tribunals Act, 1985 has no substance.Appointment of the Chairman, Vice-Chairman (Judicial) and (Administrative) and members has now to be made in consultation with the Chief Justice of the High Court. Submission that the amendment carried out in Section 3 regarding appo9intment of Chairman, Vice-Chairmen (Judicial) as well as (Administrative) and members is not in conformity with the corresponding provisions of Administrative Tribunals Act, 1985 has nofind that the State Legislature was competent to enact the impugned provisions. Further that the provisions enacted are not arbitrary and therefore not violative of Articles 14, 16 or any other provisions of the Constitution. They are not against the basic structure of the Constitution of India either. | 0 | 11,223 | 1,125 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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reasons given by us for upholding the validity of Sub-section (5-B) would equally apply for upholding the validity of Sub-section (5-C) as well. 42. Sub-sections (5-B) and (5-C) are not arbitrary as contended by the counsel for the appellant as this Court in earlier cases has taken the view that orders of suspension, dismissal, removal, reduction in rank, termination, compulsory retirement or reversion of a public servant normally should not be interfered with at an interim stage as the employee can be suitably compensated in case the order of suspension, dismissal, removal, etc. in found not to be in order. The cases in which the operation of orders of dismissal, removal, termination etc. is stayed by way of interim order is later on upheld at the final stage then it results in wrong usurpation of the office by the employee during the operation of the interim order. This act becomes irreversible and the employer cannot be suitably compensated by moulding the relief at the final stage. In an extreme and rare case where the order is prima facie on the face of it is mala fide or bad in law then it is open to a public servant to approach the High Court by filing a writ petition under Article 226 of the Constitution of India for stay of such an order. The employee is not left without any remedy. In an extreme and rare case an employee is to approach the High Court for interim relief resulting in some extra expense by itself is no reason to strike down the Sub-section (5-B) being arbitrary and violative of Articles 14 and 16 of the Constitution of India. 43. The Principal Act was promulgated in 1976 for adjudication of the disputes pertaining to employment matters of public servants of the State Government and the employees of the Government Corporations and Companies, local authorities etc. and the jurisdiction of the civil courts for redressal of their grievances was taken away. It was set up with five Tribunals and each Tribunal was independent and consisted of one Judicial member and one administrative member. Out of them one member was the Chairman. Constitution of the Tribunal was challenged in the High Court successfully. Consequently, the Original Act was amended by U.P. Act No. 7 of 1992. Sub-sections 3 (1), (2), (3) and (6) were amended. The Tribunal was constituted of one Chairman, a Vice Chairman at least five Judicial Members and Five Administrative Members which were to function at different Benches consisting of a Single Member or two members for the disposal of such references of claims and other matters as ay be specified by the Chairman. Under the Act 7 of 1992 an Administrative Member could be appointed as Chairman and in fact Shri Venkatramani, IAS was appointed as the Chairman. This Act was challenged by filing a writ petition in Sanjai Kumar Srivastava in the High Court. It was contended that administrative member could not become a Chairman and the appointment of Chairman. Vice Chairman and members could not be made without consulting the Chief Justice of the State. This objection was upheld and accordingly Section 3(3)(c) and Section 3(4)(c) of the Act were struck down. State was permitted to make suitable amendments to bring about suitable amendments in the Act. It was also directed that in future all appointments to the Tribunal be made only after effective consultation with the Chief Justice of the State. Special Leave Petition filed against the judgment was dismissed by this Court. The Government thereafter deleted the offending clauses of Section 3(3)(c) and Section 3(4)(c) from the Act. Thereafter, Ordinance No. 17 of 1999 was promulgated which culminating in the passing of Act 5 of 2000. Section 3(2) of the Principal At was substituted for the words "a Vice-Chairman", the words "A vice-Chairman (Judicial) a Vice-Chairman (Administrative)". From now onwards there are two Vice Chairmen instead of one Chairman. In Section 3(4)(b) the words "or an Administrative" were deleted. Sub-section (4-A) was inserted which prescribed the qualification for appointment as Vice-Chairman (Administrative). Sub-section (4-A)(a) was the same as was earlier in Sub-section 4(b) by deleting the words "or an Administrative". The new Sub-section (4-A) (b) was an addition now added in 1999. This is in pari materia of Section 6 (2)(b) of the Administrative Tribunals Act, 1985 except the words. "Additional Secretary" instead of "Secretary" to the Government of India. Sub-Section (4-A) (b) is the same as the original Section 3(6) except adding the words as under: " "has adequate experience", the words "has, in the opinion of the State Government, adequate experience" have been added." Challenge to Sub-Section (4-A) (b) of Section 3 that the same is not in conformity with the judgment in Sanjai Kumar Srivastava case is unfounded because this sub-section is in pari materia with Section 6(2)(b) of the Administrative Tribunals Act, 1985. Sub-Section (7) in Section 3 was also substituted by adding the words "State Government after consultation with the Chief Justice for which proposal will be initiated by the State Government." In other words, the power of appointments with the State Government has been retained but the same has to be exercised in consultation with the Chief Justice of the High Court as directed by the High Court in Sanjai Kumar Srivastava case.44. Appointment of the Chairman, Vice-Chairman (Judicial) and (Administrative) and members has now to be made in consultation with the Chief Justice of the High Court. Submission that the amendment carried out in Section 3 regarding appo9intment of Chairman, Vice-Chairmen (Judicial) as well as (Administrative) and members is not in conformity with the corresponding provisions of Administrative Tribunals Act, 1985 has no substance. 45. For the reasons stated above, we find that the State Legislature was competent to enact the impugned provisions. Further that the provisions enacted are not arbitrary and therefore not violative of Articles 14, 16 or any other provisions of the Constitution. They are not against the basic structure of the Constitution of India either.
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### Explanation:
32. We agree with the view taken by the High Court that unless a clarification is made by the Legislature in the Act clarifying that an order would include an "omission" or "inaction" on the part of the authority, the "inaction" on the part of the authority can be challenged in High Court by filing the writ petition under Article 226 of the Constitution of India. It cannot be said that the public servant is left without a remedy to challenge any omission or inaction on the part of the authority. Inaction by itself is an independent cause of action and the High Court can effectively deal with the same.Transfer is an incident of service and is made in administrative exigencies. Normally it is not to be interfered with by the courts. This Court consistently has been taken a view that orders of transfer should not be interfered with except in rare cases where the transfer has been made in a vindictive manner.The Principal Act was promulgated in 1976 for adjudication of the disputes pertaining to employment matters of public servants of the State Government and the employees of the Government Corporations and Companies, local authorities etc. and the jurisdiction of the civil courts for redressal of their grievances was taken away. It was set up with five Tribunals and each Tribunal was independent and consisted of one Judicial member and one administrative member. Out of them one member was the Chairman. Constitution of the Tribunal was challenged in the High Court successfully. Consequently, the Original Act was amended by U.P. Act No. 7 of 1992. Sub-sections 3 (1), (2), (3) and (6) were amended. The Tribunal was constituted of one Chairman, a Vice Chairman at least five Judicial Members and Five Administrative Members which were to function at different Benches consisting of a Single Member or two members for the disposal of such references of claims and other matters as ay be specified by the Chairman. Under the Act 7 of 1992 an Administrative Member could be appointed as Chairman and in fact Shri Venkatramani, IAS was appointed as the Chairman. This Act was challenged by filing a writ petition in Sanjai Kumar Srivastava in the High Court. It was contended that administrative member could not become a Chairman and the appointment of Chairman. Vice Chairman and members could not be made without consulting the Chief Justice of the State. This objection was upheld and accordingly Section 3(3)(c) and Section 3(4)(c) of the Act were struck down. State was permitted to make suitable amendments to bring about suitable amendments in the Act. It was also directed that in future all appointments to the Tribunal be made only after effective consultation with the Chief Justice of the State. Special Leave Petition filed against the judgment was dismissed by this Court. The Government thereafter deleted the offending clauses of Section 3(3)(c) and Section 3(4)(c) from the Act. Thereafter, Ordinance No. 17 of 1999 was promulgated which culminating in the passing of Act 5 of 2000. Section 3(2) of the Principal At was substituted for the words "a Vice-Chairman", the words "A vice-Chairman (Judicial) a Vice-Chairman (Administrative)". From now onwards there are two Vice Chairmen instead of one Chairman. In Section 3(4)(b) the words "or an Administrative" were deleted. Sub-section (4-A) was inserted which prescribed the qualification for appointment as Vice-Chairman (Administrative). Sub-section (4-A)(a) was the same as was earlier in Sub-section 4(b) by deleting the words "or an Administrative". The new Sub-section (4-A) (b) was an addition now added in 1999. This is in pari materia of Section 6 (2)(b) of the Administrative Tribunals Act, 1985 except the words. "Additional Secretary" instead of "Secretary" to the Government of India. Sub-Section (4-A) (b) is the same as the original Section 3(6) except adding the words as"has adequate experience", the words "has, in the opinion of the State Government, adequate experience" have beento Sub-Section (4-A) (b) of Section 3 that the same is not in conformity with the judgment in Sanjai Kumar Srivastava case is unfounded because this sub-section is in pari materia with Section 6(2)(b) of the Administrative Tribunals Act, 1985. Sub-Section (7) in Section 3 was also substituted by adding the words "State Government after consultation with the Chief Justice for which proposal will be initiated by the State Government." In other words, the power of appointments with the State Government has been retained but the same has to be exercised in consultation with the Chief Justice of the High Court as directed by the High Court in Sanjai Kumar Srivastava case.44. Appointment of the Chairman, Vice-Chairman (Judicial) and (Administrative) and members has now to be made in consultation with the Chief Justice of the High Court. Submission that the amendment carried out in Section 3 regarding appo9intment of Chairman, Vice-Chairmen (Judicial) as well as (Administrative) and members is not in conformity with the corresponding provisions of Administrative Tribunals Act, 1985 has no substance.Appointment of the Chairman, Vice-Chairman (Judicial) and (Administrative) and members has now to be made in consultation with the Chief Justice of the High Court. Submission that the amendment carried out in Section 3 regarding appo9intment of Chairman, Vice-Chairmen (Judicial) as well as (Administrative) and members is not in conformity with the corresponding provisions of Administrative Tribunals Act, 1985 has nofind that the State Legislature was competent to enact the impugned provisions. Further that the provisions enacted are not arbitrary and therefore not violative of Articles 14, 16 or any other provisions of the Constitution. They are not against the basic structure of the Constitution of India either.
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M/s. Karam Chand Thapar & Brothers (P) Ltd Vs. Commissioner of Income Tax (Central), Calcutta | the case as found by the tribunal, the sum of Rs. 18,00,000/paid to the company was a revenue receipt and as such assessable to income-tax.6. Curiously enough despite the fact that the question referred to the High Court for its opinion did not in any manner challenge the correctness of the facts found by the tribunal, the High Court proceeded to rexamine the material on record and reversed the findings of fact reached by the tribunal. It came to the conclusion that all the proceedings relating to the termination of the managing agency of the company were not genuine transactions. It further came to the conclusion that the managing agencies held by the company were its stock-in-trade and therefore the amount of 18 lakhs paid by managed company to the company must be considered as a revenue receipt.7. In our opinion, it was wholly impermissible for the High Court to disturb the findings of fact reached by the Tribunal. The tribunal was the final fact finding authority. The facts found by it could have been challenged only on certain recognised grounds. Neither the High Court nor this Court has jurisdiction to re-appreciate the material on record to find out whether the facts found by the tribunal are correct or not. The High Court should not have taken upon itself the responsibility to go into the question whether the findings of facts reached by the tribunal are correct. The only question that the High Court was called upon to determine was whether on the facts found by the tribunal, the receipt in question should not have been considered by the tribunal as revenue receipt.8. As held by this Court in Commissioner of Income-tax, Madras v. Chari and Chari Ltd., (1965) 57 ITR 400 = (AIR 1966 SC 54 ) that ordinarily compensation for loss of office or agency is regarded as a capital receipt, but this rule is subject to an exception that payment received even for termination of an agency agreement would be revenue and not capital in the case where the agency was one of many which the assessee held and its termination did not impair the profit-making structure of the assessee but was within the framework of the business, it being a necessary incident of the business that existing agencies may be terminated and fresh agencies may be taken. But it is for the Income-tax department to clearly establish that the case fell within the exception to the ordinary rule. In the present case according to the findings of the tribunal, the termination of the agency in question had resulted in the destruction of a source of income of the company. The tribunal had arrived at the conclusion that the managing agencies held by the company represented the sources from which it received its income by way of commission.9. In the determination of the question whether a receipt is capital or income, it is not possible to lay down any single test as infallible or any single criterion as decisive. The question must ultimately depend on the facts of the particular case, and the authorities bearing on the question are valuable only as indicating the matters that have to be taken into account in reaching a decision. That, however is not to say that the question is one of fact, for these questions between capital and income trading profit or no trading profit, are questions which, though they may depend to a very great extent on the particular facts of each case, do involve conclusion of law to be drawn from those facts- see Commr. of Income-tax, Nagpur v. Raj Bahadur Jairam Valji, (1959) 35 ITR 148 = (AIR 1959 SC 291 ); P. V. Divecha (deceased) and after him his legal Representatives v. Commr, of I. T., Bombay City, (1963) 48 ITR 222 = (AIR 1964 SC 758 ); Kettlewell Bullen and Co, Ltd. v. Commr, of I. T., Calcutta, (1964) 53 ITR 261 = (AIR 1965 SC 65 ); Gillanders Arbuthnot and Co. Ltd, v. Commr. of Income-tax, Calcutta, (1964) 53 ITR 283 = (AIR 1965 SC 452 ) and Commr, of Income-tax, Madras v. Best and Co. (P) Ltd., (1966) 60 ITR 11 = (AIR 1966 SC 1325 ).10. The question whether a particular income arising from the termination of one of the agencies of a multi-agency concern is a capital receipt or a revenue receipt or a undoubtedly a difficult question to be answered. The difficulty is inherent in the problem itself. Decisions on this question are numerous. But none of them has laid down a precise principle of universal application but various workable rules have been evolved for guidance. One of us speaking for the Court in Kettlewell Bullen Co.s case, (1964) 53 ITR 261 (AIR 1965 SC 65) (supra) has laid down the following guidelines for finding out the true nature of such a receipt. The relevant observations read thus:"Where, on a consideration of the circumstances, payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business, nor deprive him of what in substance is his, source of income, termination of the contract being a normal incident of the business, and such cancellation leaves him free to carry on his trade (freed from the contract terminated) the receipt is revenue: where by the cancellation of an agency the trading structure of the assessee is impaired, or such cancellation results in loss of what may be regarded as the source of the assessees income, the payment made to compensate for cancellation of the agency agreement is normally a capital receipt".11. On applying these tests to the facts jound by the tribunal in this case, the receipt must be considered as a capital receipt.12. Before we part with this case we deem it necessary to observe that we would be indulging in judicial impropriety if we indulged in the rhetoric in which one of the learned judges in the High Court indulged in. | 1[ds]7. In our opinion, it was wholly impermissible for the High Court to disturb the findings of fact reached by the Tribunal. The tribunal was the final fact finding authority. The facts found by it could have been challenged only on certain recognised grounds. Neither the High Court nor this Court has jurisdiction tothe material on record to find out whether the facts found by the tribunal are correct or not. The High Court should not have taken upon itself the responsibility to go into the question whether the findings of facts reached by the tribunal are correct. The only question that the High Court was called upon to determine was whether on the facts found by the tribunal, the receipt in question should not have been considered by the tribunal as revenuethe present case according to the findings of the tribunal, the termination of the agency in question had resulted in the destruction of a source of income of the company. The tribunal had arrived at the conclusion that the managing agencies held by the company represented the sources from which it received its income by way of commission.9. In the determination of the question whether a receipt is capital or income, it is not possible to lay down any single test as infallible or any single criterion as decisive. The question must ultimately depend on the facts of the particular case, and the authorities bearing on the question are valuable only as indicating the matters that have to be taken into account in reaching a decision. That, however is not to say that the question is one of fact, for these questions between capital and income trading profit or no trading profit, are questions which, though they may depend to a very great extent on the particular facts of each case, do involve conclusion of law to be drawn from those factssee Commr. ofNagpur v. Raj Bahadur Jairam Valji, (1959) 35 ITR 148 = (AIR 1959 SC 291 ); P. V. Divecha (deceased) and after him his legal Representatives v. Commr, of I. T., Bombay City, (1963) 48 ITR 222 = (AIR 1964 SC 758 ); Kettlewell Bullen and Co, Ltd. v. Commr, of I. T., Calcutta, (1964) 53 ITR 261 = (AIR 1965 SC 65 ); Gillanders Arbuthnot and Co. Ltd, v. Commr. ofCalcutta, (1964) 53 ITR 283 = (AIR 1965 SC 452 ) and Commr, ofMadras v. Best and Co. (P) Ltd., (1966) 60 ITR 11 = (AIR 1966 SC 1325 ).On applying these tests to the facts jound by the tribunal in this case, the receipt must be considered as a capital receipt.12. Before we part with this case we deem it necessary to observe that we would be indulging in judicial impropriety if we indulged in the rhetoric in which one of the learned judges in the High Court indulged in. | 1 | 2,070 | 541 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the case as found by the tribunal, the sum of Rs. 18,00,000/paid to the company was a revenue receipt and as such assessable to income-tax.6. Curiously enough despite the fact that the question referred to the High Court for its opinion did not in any manner challenge the correctness of the facts found by the tribunal, the High Court proceeded to rexamine the material on record and reversed the findings of fact reached by the tribunal. It came to the conclusion that all the proceedings relating to the termination of the managing agency of the company were not genuine transactions. It further came to the conclusion that the managing agencies held by the company were its stock-in-trade and therefore the amount of 18 lakhs paid by managed company to the company must be considered as a revenue receipt.7. In our opinion, it was wholly impermissible for the High Court to disturb the findings of fact reached by the Tribunal. The tribunal was the final fact finding authority. The facts found by it could have been challenged only on certain recognised grounds. Neither the High Court nor this Court has jurisdiction to re-appreciate the material on record to find out whether the facts found by the tribunal are correct or not. The High Court should not have taken upon itself the responsibility to go into the question whether the findings of facts reached by the tribunal are correct. The only question that the High Court was called upon to determine was whether on the facts found by the tribunal, the receipt in question should not have been considered by the tribunal as revenue receipt.8. As held by this Court in Commissioner of Income-tax, Madras v. Chari and Chari Ltd., (1965) 57 ITR 400 = (AIR 1966 SC 54 ) that ordinarily compensation for loss of office or agency is regarded as a capital receipt, but this rule is subject to an exception that payment received even for termination of an agency agreement would be revenue and not capital in the case where the agency was one of many which the assessee held and its termination did not impair the profit-making structure of the assessee but was within the framework of the business, it being a necessary incident of the business that existing agencies may be terminated and fresh agencies may be taken. But it is for the Income-tax department to clearly establish that the case fell within the exception to the ordinary rule. In the present case according to the findings of the tribunal, the termination of the agency in question had resulted in the destruction of a source of income of the company. The tribunal had arrived at the conclusion that the managing agencies held by the company represented the sources from which it received its income by way of commission.9. In the determination of the question whether a receipt is capital or income, it is not possible to lay down any single test as infallible or any single criterion as decisive. The question must ultimately depend on the facts of the particular case, and the authorities bearing on the question are valuable only as indicating the matters that have to be taken into account in reaching a decision. That, however is not to say that the question is one of fact, for these questions between capital and income trading profit or no trading profit, are questions which, though they may depend to a very great extent on the particular facts of each case, do involve conclusion of law to be drawn from those facts- see Commr. of Income-tax, Nagpur v. Raj Bahadur Jairam Valji, (1959) 35 ITR 148 = (AIR 1959 SC 291 ); P. V. Divecha (deceased) and after him his legal Representatives v. Commr, of I. T., Bombay City, (1963) 48 ITR 222 = (AIR 1964 SC 758 ); Kettlewell Bullen and Co, Ltd. v. Commr, of I. T., Calcutta, (1964) 53 ITR 261 = (AIR 1965 SC 65 ); Gillanders Arbuthnot and Co. Ltd, v. Commr. of Income-tax, Calcutta, (1964) 53 ITR 283 = (AIR 1965 SC 452 ) and Commr, of Income-tax, Madras v. Best and Co. (P) Ltd., (1966) 60 ITR 11 = (AIR 1966 SC 1325 ).10. The question whether a particular income arising from the termination of one of the agencies of a multi-agency concern is a capital receipt or a revenue receipt or a undoubtedly a difficult question to be answered. The difficulty is inherent in the problem itself. Decisions on this question are numerous. But none of them has laid down a precise principle of universal application but various workable rules have been evolved for guidance. One of us speaking for the Court in Kettlewell Bullen Co.s case, (1964) 53 ITR 261 (AIR 1965 SC 65) (supra) has laid down the following guidelines for finding out the true nature of such a receipt. The relevant observations read thus:"Where, on a consideration of the circumstances, payment is made to compensate a person for cancellation of a contract which does not affect the trading structure of his business, nor deprive him of what in substance is his, source of income, termination of the contract being a normal incident of the business, and such cancellation leaves him free to carry on his trade (freed from the contract terminated) the receipt is revenue: where by the cancellation of an agency the trading structure of the assessee is impaired, or such cancellation results in loss of what may be regarded as the source of the assessees income, the payment made to compensate for cancellation of the agency agreement is normally a capital receipt".11. On applying these tests to the facts jound by the tribunal in this case, the receipt must be considered as a capital receipt.12. Before we part with this case we deem it necessary to observe that we would be indulging in judicial impropriety if we indulged in the rhetoric in which one of the learned judges in the High Court indulged in.
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1
### Explanation:
7. In our opinion, it was wholly impermissible for the High Court to disturb the findings of fact reached by the Tribunal. The tribunal was the final fact finding authority. The facts found by it could have been challenged only on certain recognised grounds. Neither the High Court nor this Court has jurisdiction tothe material on record to find out whether the facts found by the tribunal are correct or not. The High Court should not have taken upon itself the responsibility to go into the question whether the findings of facts reached by the tribunal are correct. The only question that the High Court was called upon to determine was whether on the facts found by the tribunal, the receipt in question should not have been considered by the tribunal as revenuethe present case according to the findings of the tribunal, the termination of the agency in question had resulted in the destruction of a source of income of the company. The tribunal had arrived at the conclusion that the managing agencies held by the company represented the sources from which it received its income by way of commission.9. In the determination of the question whether a receipt is capital or income, it is not possible to lay down any single test as infallible or any single criterion as decisive. The question must ultimately depend on the facts of the particular case, and the authorities bearing on the question are valuable only as indicating the matters that have to be taken into account in reaching a decision. That, however is not to say that the question is one of fact, for these questions between capital and income trading profit or no trading profit, are questions which, though they may depend to a very great extent on the particular facts of each case, do involve conclusion of law to be drawn from those factssee Commr. ofNagpur v. Raj Bahadur Jairam Valji, (1959) 35 ITR 148 = (AIR 1959 SC 291 ); P. V. Divecha (deceased) and after him his legal Representatives v. Commr, of I. T., Bombay City, (1963) 48 ITR 222 = (AIR 1964 SC 758 ); Kettlewell Bullen and Co, Ltd. v. Commr, of I. T., Calcutta, (1964) 53 ITR 261 = (AIR 1965 SC 65 ); Gillanders Arbuthnot and Co. Ltd, v. Commr. ofCalcutta, (1964) 53 ITR 283 = (AIR 1965 SC 452 ) and Commr, ofMadras v. Best and Co. (P) Ltd., (1966) 60 ITR 11 = (AIR 1966 SC 1325 ).On applying these tests to the facts jound by the tribunal in this case, the receipt must be considered as a capital receipt.12. Before we part with this case we deem it necessary to observe that we would be indulging in judicial impropriety if we indulged in the rhetoric in which one of the learned judges in the High Court indulged in.
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State of Uttar Pradesh & Others Vs. Ram Naresh Lal | only the appointing authority who would be competent to pass the order of dismissal. He held that the appointing authority was the Superintending Engineer and not the Development Commissioner. 8. The learned Single Judge then dealt with the other points raised before him, but those points have not been raised before us and we need not consider them. The learned Single Judge, accordingly, held that the order of dismissal had been passed by an authority which was not competent to dismiss the respondent. 9. In the special appeal by the State of Uttar Pradesh the Division Bench came substantially to the same conclusion. The Division Bench held that he respondent held a permanent post as a junior clerk in the Irrigation Department with effect from April 1, 1955, and as no formal order was issued by the Development Commissioner appointing the respondent to the Planning Department on a permanent basis the lien of the respondent in the Irrigation Department continued. The Division Bench further held that being an employee of the Irrigation Department, the respondent could not be dismissed by the Development Commissioner. They relied on the notification dated August 3, 1932, which reads."In exercise of the powers conferred by Rule 54 of the Civil Service (Classification, Control and Appeal) Rules made by the Secretary of State in Council .... the Government of the United Provinces hereby delegate, without prejudice to the provisions of any law for the time being in force, power to inflict the following punishments on members of the subordinate services to every officer who is competent under existing orders to appoint them with or without reference to or with or without the sanction of higher authority." The Division Bench further held that the notification dated March 4, 1960, had no direct bearing on the competence of the Development Commissioner to dismiss an official from service. The Division Bench further relied on clause (a) of Rule 14-A of the Fundamental Rules which read:"A government servants lien on a post may in no circumstances be terminated, even with his consent if the result will be to leave him without a lien or a suspended lien upon a permanent post." The Division Bench observed that"the notification dated 3-8-1932 must be read subject to R. 14-A of the Fundamental Rules. It was not open to the Development Commissioner to put an end to the lien held by R. N. Lal to a post in the Irrigation Department." 10. The learned Counsel for the appellant, Mr. G. N. Dixit, contends (1) that the respondent was permanently transferred to the Planning Department by virtue of the order of Government dated May 21 1958 and the option exercised by the respondent not to go back to his parent department, and (2) that, at any rate by virtue of the order dated March 4, 1960, read with the notification dated August 3, 1932, and May 21, 1958, the Development Commissioner was the competent authority to dismiss the respondent. 11. Regarding the first point, it seems to us that it was not necessary that the Development Commissioner should have issued a fresh order for appointment of the respondent. The respondent was a member of the Subordinate Service and by having been transferred to the Planning Department he had not ceased to be a member of the service. If a person is a member of the service and he is transferred from one department to another it is not necessary that he should be reappointed to the service or he should be appointed to the department to which he is transferred. As soon as he is transferred permanently he begins to hold the permanent post which he starts holding in the transferee department.It is true that the letter dated May 21, 1958, contemplated that a fresh appointment of staff who elected to remain in the Planning Department would be made but apparently later on the Government realised that it was not necessary to pass such an order of reappointment.It seems to us that the respondent, having elected not to go back to his parent department, became an employee in the Planning Department and, therefore, the Development Commissioner was entitled to dismiss the respondent. 12. Assuming that the respondent had not been permanently transferred and further assuming that he was still on deputation in the Planning Department, even then the Development Commissioner was entitled to dismiss the respondent by virtue of various orders. The order dated May 21, 1958, which has been extracted above, clearly places the control over the entire staff on deputation from the Irrigation Department to the Planning Department with the Development Commissioner.The word "control" is a wide word and includes disciplinary jurisdiction. In the context there is no doubt that it was the intention to give disciplinary jurisdiction over the entire staff on deputation to the Development Commissioner. The previous order dated July 15, 1956, had vested the power of transfer and punishment in the Development Commissioner. It seems to us that the later order in no way confers lesser powers on the Development Commissioner. There is nothing in the Constitution which debars the Government from conferring powers on an officer other than the appointing authority to dismiss a Government servant provided he is not subordinate in rank to the appointing officer or authority.These three orders, (viz., D/- August 3, 1932, May 21, 1958 and March 4, 1960) which we have mentioned above, read together clearly confer powers on the Development Commissioner to dismiss person on deputation in the Planning Department. 13. In considering this question we have not been able to appreciate the relevance of clause (a) of Rule 14A of the Fundamental Rules relied on by the Division Bench. Whether a person has a lien in one department or in other department, the Government is entitled, subject to the provisions of Article 311 (1), to delegate power of dismissal to any officer. We are unable to understand how Rule 14-A has the effect of modifying the notification dated August 3, 1932. | 1[ds]11. Regarding the first point, it seems to us that it was not necessary that the Development Commissioner should have issued a fresh order for appointment of the respondent. The respondent was a member of the Subordinate Service and by having been transferred to the Planning Department he had not ceased to be a member of the service. If a person is a member of the service and he is transferred from one department to another it is not necessary that he should be reappointed to the service or he should be appointed to the department to which he is transferred. As soon as he is transferred permanently he begins to hold the permanent post which he starts holding in the transferee department.It is true that the letter dated May 21, 1958, contemplated that a fresh appointment of staff who elected to remain in the Planning Department would be made but apparently later on the Government realised that it was not necessary to pass such an order of reappointment.It seems to us that the respondent, having elected not to go back to his parent department, became an employee in the Planning Department and, therefore, the Development Commissioner was entitled to dismiss the respondent12. Assuming that the respondent had not been permanently transferred and further assuming that he was still on deputation in the Planning Department, even then the Development Commissioner was entitled to dismiss the respondent by virtue of various orders. The order dated May 21, 1958, which has been extracted above, clearly places the control over the entire staff on deputation from the Irrigation Department to the Planning Department with the Development Commissioner.The word "control" is a wide word and includes disciplinary jurisdiction. In the context there is no doubt that it was the intention to give disciplinary jurisdiction over the entire staff on deputation to the Development Commissioner. The previous order dated July 15, 1956, had vested the power of transfer and punishment in the Development Commissioner. It seems to us that the later order in no way confers lesser powers on the Development Commissioner. There is nothing in the Constitution which debars the Government from conferring powers on an officer other than the appointing authority to dismiss a Government servant provided he is not subordinate in rank to the appointing officer or authority.These three orders, (viz., D/August 3, 1932, May 21, 1958 and March 4, 1960) which we have mentioned above, read together clearly confer powers on the Development Commissioner to dismiss person on deputation in the Planning Department13. In considering this question we have not been able to appreciate the relevance of clause (a) of Rule14A of the FundamentalRulesrelied on by the Division Bench. Whether a person has a lien in one department or in other department, the Government is entitled, subject to the provisions of Article 311 (1), to delegate power of dismissal to any officer. We are unable to understand how Rule14Ahas the effect of modifying the notification dated August 3, 1932. | 1 | 2,239 | 548 | ### 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:
only the appointing authority who would be competent to pass the order of dismissal. He held that the appointing authority was the Superintending Engineer and not the Development Commissioner. 8. The learned Single Judge then dealt with the other points raised before him, but those points have not been raised before us and we need not consider them. The learned Single Judge, accordingly, held that the order of dismissal had been passed by an authority which was not competent to dismiss the respondent. 9. In the special appeal by the State of Uttar Pradesh the Division Bench came substantially to the same conclusion. The Division Bench held that he respondent held a permanent post as a junior clerk in the Irrigation Department with effect from April 1, 1955, and as no formal order was issued by the Development Commissioner appointing the respondent to the Planning Department on a permanent basis the lien of the respondent in the Irrigation Department continued. The Division Bench further held that being an employee of the Irrigation Department, the respondent could not be dismissed by the Development Commissioner. They relied on the notification dated August 3, 1932, which reads."In exercise of the powers conferred by Rule 54 of the Civil Service (Classification, Control and Appeal) Rules made by the Secretary of State in Council .... the Government of the United Provinces hereby delegate, without prejudice to the provisions of any law for the time being in force, power to inflict the following punishments on members of the subordinate services to every officer who is competent under existing orders to appoint them with or without reference to or with or without the sanction of higher authority." The Division Bench further held that the notification dated March 4, 1960, had no direct bearing on the competence of the Development Commissioner to dismiss an official from service. The Division Bench further relied on clause (a) of Rule 14-A of the Fundamental Rules which read:"A government servants lien on a post may in no circumstances be terminated, even with his consent if the result will be to leave him without a lien or a suspended lien upon a permanent post." The Division Bench observed that"the notification dated 3-8-1932 must be read subject to R. 14-A of the Fundamental Rules. It was not open to the Development Commissioner to put an end to the lien held by R. N. Lal to a post in the Irrigation Department." 10. The learned Counsel for the appellant, Mr. G. N. Dixit, contends (1) that the respondent was permanently transferred to the Planning Department by virtue of the order of Government dated May 21 1958 and the option exercised by the respondent not to go back to his parent department, and (2) that, at any rate by virtue of the order dated March 4, 1960, read with the notification dated August 3, 1932, and May 21, 1958, the Development Commissioner was the competent authority to dismiss the respondent. 11. Regarding the first point, it seems to us that it was not necessary that the Development Commissioner should have issued a fresh order for appointment of the respondent. The respondent was a member of the Subordinate Service and by having been transferred to the Planning Department he had not ceased to be a member of the service. If a person is a member of the service and he is transferred from one department to another it is not necessary that he should be reappointed to the service or he should be appointed to the department to which he is transferred. As soon as he is transferred permanently he begins to hold the permanent post which he starts holding in the transferee department.It is true that the letter dated May 21, 1958, contemplated that a fresh appointment of staff who elected to remain in the Planning Department would be made but apparently later on the Government realised that it was not necessary to pass such an order of reappointment.It seems to us that the respondent, having elected not to go back to his parent department, became an employee in the Planning Department and, therefore, the Development Commissioner was entitled to dismiss the respondent. 12. Assuming that the respondent had not been permanently transferred and further assuming that he was still on deputation in the Planning Department, even then the Development Commissioner was entitled to dismiss the respondent by virtue of various orders. The order dated May 21, 1958, which has been extracted above, clearly places the control over the entire staff on deputation from the Irrigation Department to the Planning Department with the Development Commissioner.The word "control" is a wide word and includes disciplinary jurisdiction. In the context there is no doubt that it was the intention to give disciplinary jurisdiction over the entire staff on deputation to the Development Commissioner. The previous order dated July 15, 1956, had vested the power of transfer and punishment in the Development Commissioner. It seems to us that the later order in no way confers lesser powers on the Development Commissioner. There is nothing in the Constitution which debars the Government from conferring powers on an officer other than the appointing authority to dismiss a Government servant provided he is not subordinate in rank to the appointing officer or authority.These three orders, (viz., D/- August 3, 1932, May 21, 1958 and March 4, 1960) which we have mentioned above, read together clearly confer powers on the Development Commissioner to dismiss person on deputation in the Planning Department. 13. In considering this question we have not been able to appreciate the relevance of clause (a) of Rule 14A of the Fundamental Rules relied on by the Division Bench. Whether a person has a lien in one department or in other department, the Government is entitled, subject to the provisions of Article 311 (1), to delegate power of dismissal to any officer. We are unable to understand how Rule 14-A has the effect of modifying the notification dated August 3, 1932.
### Response:
1
### Explanation:
11. Regarding the first point, it seems to us that it was not necessary that the Development Commissioner should have issued a fresh order for appointment of the respondent. The respondent was a member of the Subordinate Service and by having been transferred to the Planning Department he had not ceased to be a member of the service. If a person is a member of the service and he is transferred from one department to another it is not necessary that he should be reappointed to the service or he should be appointed to the department to which he is transferred. As soon as he is transferred permanently he begins to hold the permanent post which he starts holding in the transferee department.It is true that the letter dated May 21, 1958, contemplated that a fresh appointment of staff who elected to remain in the Planning Department would be made but apparently later on the Government realised that it was not necessary to pass such an order of reappointment.It seems to us that the respondent, having elected not to go back to his parent department, became an employee in the Planning Department and, therefore, the Development Commissioner was entitled to dismiss the respondent12. Assuming that the respondent had not been permanently transferred and further assuming that he was still on deputation in the Planning Department, even then the Development Commissioner was entitled to dismiss the respondent by virtue of various orders. The order dated May 21, 1958, which has been extracted above, clearly places the control over the entire staff on deputation from the Irrigation Department to the Planning Department with the Development Commissioner.The word "control" is a wide word and includes disciplinary jurisdiction. In the context there is no doubt that it was the intention to give disciplinary jurisdiction over the entire staff on deputation to the Development Commissioner. The previous order dated July 15, 1956, had vested the power of transfer and punishment in the Development Commissioner. It seems to us that the later order in no way confers lesser powers on the Development Commissioner. There is nothing in the Constitution which debars the Government from conferring powers on an officer other than the appointing authority to dismiss a Government servant provided he is not subordinate in rank to the appointing officer or authority.These three orders, (viz., D/August 3, 1932, May 21, 1958 and March 4, 1960) which we have mentioned above, read together clearly confer powers on the Development Commissioner to dismiss person on deputation in the Planning Department13. In considering this question we have not been able to appreciate the relevance of clause (a) of Rule14A of the FundamentalRulesrelied on by the Division Bench. Whether a person has a lien in one department or in other department, the Government is entitled, subject to the provisions of Article 311 (1), to delegate power of dismissal to any officer. We are unable to understand how Rule14Ahas the effect of modifying the notification dated August 3, 1932.
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Ram Kumar Agarwalla And Brothers Vs. Commissioner Of Income-Tax, Central, Calcutta | and it was not open to the third Member to ignore that finding and to arrive at a different conclusion. We are unable to agree with that contention. On a difference of opinion the appeal in its entirety and not any specific question, was referred to the third Member. Again only the Accountant Member was of the view that the receipt of Rs. 2 lakhs to the assessees arose not in the course of their business, but because they agreed to refrain from competing with M/s. Mangturam Jaipuria in that firms attempt to acquire the controlling interest in the Company: the Judicial Member did not accept that view. 4. The terms of the letter addressed by M/s. Mangturam Jaipuria to David Mitchell make it abundantly clear that Rs. 6 lakhs were agreed to be paid primarily as remuneration for services to be rendered. The expression:"in the event of your securing the same (controlling interest in the Swadeshi Cotton Mills) for us, and upon your giving up all claims to purchase the same, and assigning to us and our associates any interest that you may have acquired, we hereby agree to pay you ** sum of Rs. 6,00,000" evidences that object. The Tribunal had also called for a report from the Appellate Assistant Commissioner and that Officer, as we have already observed expressly recorded that the payment made to the assessees and their associates was for services rendered in acquiring the controlling interest for M/s. Mangturam Jaipuria and not for dissuading them in competing for the purchase of the shares. The Tribunal accepted the report of the Appellate Assistant Commissioner, and observed that the assessees had no intention to buy the controlling interest in the Company. The principal business of the assessees was in paper, and they were doing some business in shares and brokerage in shares. The evidence does not disclose how it was intended by the assessees to finance such a large transaction. The Tribunal was apparently of the view that a solicitor, an auditor and a firm of share-brokers and paper merchants could not have been associated in a genuine project of acquiring the controlling interest in one of the largest textile units in the country which was expected to and did cost Rs. 4 crores. The Tribunal had directed that certain persons including Ram Kumar Agarwalla the principal partner of the assessees be examined as witnesses. The principal partner of the assessees did not give evidence. Ramgopal Agarwalla another partner of the firm who appeared before the Appellate Assistant Commissioner pleaded that he had no personal knowledge about the details of the negotiations or "as to the financial part of the aspect of the matter, since it was being dealt with by the senior partner Ram Kumar Agarwalla." David Mitchell and Rowen Hodge had it appears left India, and they also could not be examined. The conclusion recorded by the Tribunal that the assessees, David Mitchell and Rowen Hodge had no intention to acquire the controlling interest, but were seeking to associate themselves in a venture in the nature of trade, cannot in the circumstances be said to be without evidence. The conclusion that the assessees and their two associates received Rs. 6,00,000 not in consideration of refraining from competing in the purchase of the controlling interest, but as remuneration for services rendered is based on evidence before the Tribunal. The receipt must, therefore, be regarded as a revenue receipt earned in the course of the business of the assessees. 5. It is unnecessary to make a detailed reference to the decisions which were cited at the Bar, e.g., Higgs v. Oliver, (1952) 33 Tax Cas 136 and in Commissioner of Income-tax, Bombay Presidency, Sind and Baluchistan v. Mills Store Co., Karachi, 1941-9 ITR 642: (AIR 1942 Sind 53). In Higgss case, (1952) 33 Tax Cas 136, a professional actor who had agreed to give his, exclusive services to a film company in consideration of a fixed sum, and a proportion of the net profits from exploitation of a film, was, after the agreement was fulfilled, given a sum of ?15,000 as consideration for an undertaking not to act, produce or direct any film for any person for a period of eighteen months. It was held that the amount paid was not for carrying on business, but for refraining from carrying on the business and was not taxable. In the Mills Store Companys case, 1941-9 ITR 642: (AIR 1942 Sind 53), under an agreement for a stated consideration the assessee Company parted with the oil tanks and installations and other structures and goodwill and leasehold rights held by it in respect of the land on which its business of storing petroleum and petroleum products was carried, and agreed not to import petroleum for ten years, and not to act on behalf of any one else as importers of petroleum for five years. By another agreement in consideration of extending the latter restriction to ten years, the assessee was paid Rs. 10,000 annually during the subsistence of the restriction. It was held by the Chief Court of Sind that the sum of Rs. 10.000 was not the direct result of the profit or gains accruing to the assessees as a result of the business actually carried on by them, and did not fall under the head Profits and gains of business, profession or vocation. These cases have, on the findings recorded by the Tribunal, no relevance. 6. Under S. 4 (3) (vii) receipts which are of a casual and non-recurring nature are not liable to be included in the computation of the total income of the assessee; but the rule in express terms does not apply to capital gains, receipts arising from business or the exercise of a profession or vocation and receipts by way of addition to the remuneration of an employee. On the finding recorded by the Tribunal, the receipt arose from the business of the assessees, and is not exempt under S. 4 (3) (vii). | 0[ds]5. It is unnecessary to make a detailed reference to the decisions which were cited at the Bar, e.g.,Higgs v. Oliver, (1952) 33 Tax Cas 136and in Commissioner of Income-tax, Bombay Presidency, Sind and Baluchistan v. Mills Store Co., Karachi, 1941-9 ITR 642: (AIR 1942 Sind 53). In Higgss case, (1952) 33 Tax Cas 136, a professional actor who had agreed to give his, exclusive services to a film company in consideration of a fixed sum, and a proportion of the net profits from exploitation of a film, was, after the agreement was fulfilled, given a sum of ?15,000 as consideration for an undertaking not to act, produce or direct any film for any person for a period of eighteen months. It was held that the amount paid was not for carrying on business, but for refraining from carrying on the business and was not taxable. In the Mills Store Companys case, 1941-9 ITR 642: (AIR 1942 Sind 53), under an agreement for a stated consideration the assessee Company parted with the oil tanks and installations and other structures and goodwill and leasehold rights held by it in respect of the land on which its business of storing petroleum and petroleum products was carried, and agreed not to import petroleum for ten years, and not to act on behalf of any one else as importers of petroleum for five years. By another agreement in consideration of extending the latter restriction to ten years, the assessee was paid Rs. 10,000 annually during the subsistence of the restriction. It was held by the Chief Court of Sind that the sum of Rs. 10.000 was not the direct result of the profit or gains accruing to the assessees as a result of the business actually carried on by them, and did not fall under the head Profits and gains of business, profession or vocation. These cases have, on the findings recorded by the Tribunal, no relevance6. Under S. 4 (3) (vii) receipts which are of a casual and non-recurring nature are not liable to be included in the computation of the total income of the assessee; but the rule in express terms does not apply to capital gains, receipts arising from business or the exercise of a profession or vocation and receipts by way of addition to the remuneration of an employee. On the finding recorded by the Tribunal, the receipt arose from the business of the assessees, and is not exempt under S. 4 (3) (vii)We are unable to agree with that contention. On a difference of opinion the appeal in its entirety and not any specific question, was referred to the third Member. Again only the Accountant Member was of the view that the receipt of Rs. 2 lakhs to the assessees arose not in the course of their business, but because they agreed to refrain from competing with M/s. Mangturam Jaipuria in that firms attempt to acquire the controlling interest in the Company: the Judicial Member did not accept that view4. The terms of the letter addressed by M/s. Mangturam Jaipuria to David Mitchell make it abundantly clear that Rs. 6 lakhs were agreed to be paid primarily as remuneration for services to be rendered. The expression"in the event of your securing the same (controlling interest in the Swadeshi Cotton Mills) for us, and upon your giving up all claims to purchase the same, and assigning to us and our associates any interest that you may have acquired, we hereby agree to pay you ** sum of Rs. 6,00,000"evidences that object. The Tribunal had also called for a report from the Appellate Assistant Commissioner and that Officer, as we have already observed expressly recorded that the payment made to the assessees and their associates was for services rendered in acquiring the controlling interest for M/s. Mangturam Jaipuria and not for dissuading them in competing for the purchase of the shares. The Tribunal accepted the report of the Appellate Assistant Commissioner, and observed that the assessees had no intention to buy the controlling interest in the Company. The principal business of the assessees was in paper, and they were doing some business in shares and brokerage in shares. The evidence does not disclose how it was intended by the assessees to finance such a large transaction. The Tribunal was apparently of the view that a solicitor, an auditor and a firm ofs and paper merchants could not have been associated in a genuine project of acquiring the controlling interest in one of the largest textile units in the country which was expected to and did cost Rs. 4 crores. The Tribunal had directed that certain persons including Ram Kumar Agarwalla the principal partner of the assessees be examined as witnesses. The principal partner of the assessees did not give evidence. Ramgopal Agarwalla another partner of the firm who appeared before the Appellate Assistant Commissioner pleaded that he had no personal knowledge about the details of the negotiations or "as to the financial part of the aspect of the matter, since it was being dealt with by the senior partner Ram Kumar Agarwalla." David Mitchell and Rowen Hodge had it appears left India, and they also could not be examined. The conclusion recorded by the Tribunal that the assessees, David Mitchell and Rowen Hodge had no intention to acquire the controlling interest, but were seeking to associate themselves in a venture in the nature of trade, cannot in the circumstances be said to be without evidence. The conclusion that the assessees and their two associates received Rs. 6,00,000 not in consideration of refraining from competing in the purchase of the controlling interest, but as remuneration for services rendered is based on evidence before the Tribunal. The receipt must, therefore, be regarded as a revenue receipt earned in the course of the business of the assessees. | 0 | 2,110 | 1,091 | ### 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:
and it was not open to the third Member to ignore that finding and to arrive at a different conclusion. We are unable to agree with that contention. On a difference of opinion the appeal in its entirety and not any specific question, was referred to the third Member. Again only the Accountant Member was of the view that the receipt of Rs. 2 lakhs to the assessees arose not in the course of their business, but because they agreed to refrain from competing with M/s. Mangturam Jaipuria in that firms attempt to acquire the controlling interest in the Company: the Judicial Member did not accept that view. 4. The terms of the letter addressed by M/s. Mangturam Jaipuria to David Mitchell make it abundantly clear that Rs. 6 lakhs were agreed to be paid primarily as remuneration for services to be rendered. The expression:"in the event of your securing the same (controlling interest in the Swadeshi Cotton Mills) for us, and upon your giving up all claims to purchase the same, and assigning to us and our associates any interest that you may have acquired, we hereby agree to pay you ** sum of Rs. 6,00,000" evidences that object. The Tribunal had also called for a report from the Appellate Assistant Commissioner and that Officer, as we have already observed expressly recorded that the payment made to the assessees and their associates was for services rendered in acquiring the controlling interest for M/s. Mangturam Jaipuria and not for dissuading them in competing for the purchase of the shares. The Tribunal accepted the report of the Appellate Assistant Commissioner, and observed that the assessees had no intention to buy the controlling interest in the Company. The principal business of the assessees was in paper, and they were doing some business in shares and brokerage in shares. The evidence does not disclose how it was intended by the assessees to finance such a large transaction. The Tribunal was apparently of the view that a solicitor, an auditor and a firm of share-brokers and paper merchants could not have been associated in a genuine project of acquiring the controlling interest in one of the largest textile units in the country which was expected to and did cost Rs. 4 crores. The Tribunal had directed that certain persons including Ram Kumar Agarwalla the principal partner of the assessees be examined as witnesses. The principal partner of the assessees did not give evidence. Ramgopal Agarwalla another partner of the firm who appeared before the Appellate Assistant Commissioner pleaded that he had no personal knowledge about the details of the negotiations or "as to the financial part of the aspect of the matter, since it was being dealt with by the senior partner Ram Kumar Agarwalla." David Mitchell and Rowen Hodge had it appears left India, and they also could not be examined. The conclusion recorded by the Tribunal that the assessees, David Mitchell and Rowen Hodge had no intention to acquire the controlling interest, but were seeking to associate themselves in a venture in the nature of trade, cannot in the circumstances be said to be without evidence. The conclusion that the assessees and their two associates received Rs. 6,00,000 not in consideration of refraining from competing in the purchase of the controlling interest, but as remuneration for services rendered is based on evidence before the Tribunal. The receipt must, therefore, be regarded as a revenue receipt earned in the course of the business of the assessees. 5. It is unnecessary to make a detailed reference to the decisions which were cited at the Bar, e.g., Higgs v. Oliver, (1952) 33 Tax Cas 136 and in Commissioner of Income-tax, Bombay Presidency, Sind and Baluchistan v. Mills Store Co., Karachi, 1941-9 ITR 642: (AIR 1942 Sind 53). In Higgss case, (1952) 33 Tax Cas 136, a professional actor who had agreed to give his, exclusive services to a film company in consideration of a fixed sum, and a proportion of the net profits from exploitation of a film, was, after the agreement was fulfilled, given a sum of ?15,000 as consideration for an undertaking not to act, produce or direct any film for any person for a period of eighteen months. It was held that the amount paid was not for carrying on business, but for refraining from carrying on the business and was not taxable. In the Mills Store Companys case, 1941-9 ITR 642: (AIR 1942 Sind 53), under an agreement for a stated consideration the assessee Company parted with the oil tanks and installations and other structures and goodwill and leasehold rights held by it in respect of the land on which its business of storing petroleum and petroleum products was carried, and agreed not to import petroleum for ten years, and not to act on behalf of any one else as importers of petroleum for five years. By another agreement in consideration of extending the latter restriction to ten years, the assessee was paid Rs. 10,000 annually during the subsistence of the restriction. It was held by the Chief Court of Sind that the sum of Rs. 10.000 was not the direct result of the profit or gains accruing to the assessees as a result of the business actually carried on by them, and did not fall under the head Profits and gains of business, profession or vocation. These cases have, on the findings recorded by the Tribunal, no relevance. 6. Under S. 4 (3) (vii) receipts which are of a casual and non-recurring nature are not liable to be included in the computation of the total income of the assessee; but the rule in express terms does not apply to capital gains, receipts arising from business or the exercise of a profession or vocation and receipts by way of addition to the remuneration of an employee. On the finding recorded by the Tribunal, the receipt arose from the business of the assessees, and is not exempt under S. 4 (3) (vii).
### Response:
0
### Explanation:
5. It is unnecessary to make a detailed reference to the decisions which were cited at the Bar, e.g.,Higgs v. Oliver, (1952) 33 Tax Cas 136and in Commissioner of Income-tax, Bombay Presidency, Sind and Baluchistan v. Mills Store Co., Karachi, 1941-9 ITR 642: (AIR 1942 Sind 53). In Higgss case, (1952) 33 Tax Cas 136, a professional actor who had agreed to give his, exclusive services to a film company in consideration of a fixed sum, and a proportion of the net profits from exploitation of a film, was, after the agreement was fulfilled, given a sum of ?15,000 as consideration for an undertaking not to act, produce or direct any film for any person for a period of eighteen months. It was held that the amount paid was not for carrying on business, but for refraining from carrying on the business and was not taxable. In the Mills Store Companys case, 1941-9 ITR 642: (AIR 1942 Sind 53), under an agreement for a stated consideration the assessee Company parted with the oil tanks and installations and other structures and goodwill and leasehold rights held by it in respect of the land on which its business of storing petroleum and petroleum products was carried, and agreed not to import petroleum for ten years, and not to act on behalf of any one else as importers of petroleum for five years. By another agreement in consideration of extending the latter restriction to ten years, the assessee was paid Rs. 10,000 annually during the subsistence of the restriction. It was held by the Chief Court of Sind that the sum of Rs. 10.000 was not the direct result of the profit or gains accruing to the assessees as a result of the business actually carried on by them, and did not fall under the head Profits and gains of business, profession or vocation. These cases have, on the findings recorded by the Tribunal, no relevance6. Under S. 4 (3) (vii) receipts which are of a casual and non-recurring nature are not liable to be included in the computation of the total income of the assessee; but the rule in express terms does not apply to capital gains, receipts arising from business or the exercise of a profession or vocation and receipts by way of addition to the remuneration of an employee. On the finding recorded by the Tribunal, the receipt arose from the business of the assessees, and is not exempt under S. 4 (3) (vii)We are unable to agree with that contention. On a difference of opinion the appeal in its entirety and not any specific question, was referred to the third Member. Again only the Accountant Member was of the view that the receipt of Rs. 2 lakhs to the assessees arose not in the course of their business, but because they agreed to refrain from competing with M/s. Mangturam Jaipuria in that firms attempt to acquire the controlling interest in the Company: the Judicial Member did not accept that view4. The terms of the letter addressed by M/s. Mangturam Jaipuria to David Mitchell make it abundantly clear that Rs. 6 lakhs were agreed to be paid primarily as remuneration for services to be rendered. The expression"in the event of your securing the same (controlling interest in the Swadeshi Cotton Mills) for us, and upon your giving up all claims to purchase the same, and assigning to us and our associates any interest that you may have acquired, we hereby agree to pay you ** sum of Rs. 6,00,000"evidences that object. The Tribunal had also called for a report from the Appellate Assistant Commissioner and that Officer, as we have already observed expressly recorded that the payment made to the assessees and their associates was for services rendered in acquiring the controlling interest for M/s. Mangturam Jaipuria and not for dissuading them in competing for the purchase of the shares. The Tribunal accepted the report of the Appellate Assistant Commissioner, and observed that the assessees had no intention to buy the controlling interest in the Company. The principal business of the assessees was in paper, and they were doing some business in shares and brokerage in shares. The evidence does not disclose how it was intended by the assessees to finance such a large transaction. The Tribunal was apparently of the view that a solicitor, an auditor and a firm ofs and paper merchants could not have been associated in a genuine project of acquiring the controlling interest in one of the largest textile units in the country which was expected to and did cost Rs. 4 crores. The Tribunal had directed that certain persons including Ram Kumar Agarwalla the principal partner of the assessees be examined as witnesses. The principal partner of the assessees did not give evidence. Ramgopal Agarwalla another partner of the firm who appeared before the Appellate Assistant Commissioner pleaded that he had no personal knowledge about the details of the negotiations or "as to the financial part of the aspect of the matter, since it was being dealt with by the senior partner Ram Kumar Agarwalla." David Mitchell and Rowen Hodge had it appears left India, and they also could not be examined. The conclusion recorded by the Tribunal that the assessees, David Mitchell and Rowen Hodge had no intention to acquire the controlling interest, but were seeking to associate themselves in a venture in the nature of trade, cannot in the circumstances be said to be without evidence. The conclusion that the assessees and their two associates received Rs. 6,00,000 not in consideration of refraining from competing in the purchase of the controlling interest, but as remuneration for services rendered is based on evidence before the Tribunal. The receipt must, therefore, be regarded as a revenue receipt earned in the course of the business of the assessees.
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Subbiah Thevar Vs. State of Tamil Nadu | we issued notice to the State of Tamil Nadu on the question of the propriety of sentence of death imposed upon the appellant-petitioner and dismissed the application of the other petitioners.2. In pursuance to the notice the State has entered appearance. After hearing counsel on both sides, we granted special leave limited to the question of sentence and heard the appeal itself and passed an order on December 22, 1972 reducing the sentence to imprisonment for life for reasons to be given later.3. The prosecution case was as follows. PW-1 was running a grocery shop. Accused No. 1 and his wife Lakshmi used to purchase provisions from the shop. About a month prior to the date of the occurrence, PW-1 went to the house of Accused No. 1 in his absence for getting an amount of Rupees 2/- due to PW-1 on account of the purchase of grains from the shop. This conduct of PW-1 in having visited his house in his absence aroused the suspicion of Accused No. 1. PW-1 apprehended an attack from Accused No. 1 for this reason and so he left the village for the time being. During his absence from the village, a meeting of the village panchayat was held to judge the propriety of his conduct in having visited the house of Accused No. 1 in his absence. PW-1 was found guilty and a fine of Rs. 30/- was imposed on PW-1 and that was paid on behalf of PW-1. On April 26, 1970, the day prior to the date of occurrence. Accused No. 1 came to the shop of PW-1 at about 3 P.M and beat him with a chappal for visiting his house in his absence. On April 27, 1970, at about 8.30 A.M. the deceased Lakshmi Ammal, mother of PW-1, PW-2, PW-3 and one Alagiriswami Pillai went to the house of Accused No. 1 to ask him why he beat PW-1 with a chappal on the previous day in spite of the fact that a fine of Rs. 30/- was imposed on PW-1. Then Accused No. 1 came out of the house with an aruval but the aruval was caught hold of by Alagiriswami Pillai. The deceased then beat Accused No. 1 with a broomstick. This was considered to be a great humiliation not only by Accused No. 1 but also by all neighbouring members of the Marva (Thevar) community to which Accused No. 1 belongs. On the same day at about 1 P.M. the deceased was sitting in front of the shop of PW-1 which was situate very near to the house of Accused No. 1. Then Subbammal, wife of Accused No. 6 and Alagammal, wife of Accused No. 3 came in front of the house of Accused No. 1 and said that since a Vellala woman (deceased ) beat a Maravaman (Accused No. 1) with a broomstick, Vellala women should be molested. On hearing this, Accused No. 4 said that the Vellala woman need not be molested, but, on the other hand, Vellala men who came in the morning to the house of Accused No. 1 should be properly dealt with. On hearing the utterance of Accused No. 4, Lakhshmi Ammal, the deceased said that PW-1 was beaten with a chappal and made some sarcastic remark indicating that Thevars (Marvas) are not very special people. On hearing this, Accused No. 7, who was standing in front of the house of Accused No. 1 said :"Come (fellows). We will find out whether the Thevars flag flies or the flag of Vellalas".This was a retort to the sarcastic remark of the deceased and a challenge. Thereafter, Accused Nos. 1 to 7 proceeded towards the house of PW-1 from the house of Accused No. 1. Accused No. 1 was armed with an aruval. Accused No. 2 and Accused No. 3 were armed with a vel stick. On seeing Accused Nos. 1 to 7 advancing towards the shop. PW-1 threw soda bottles to scare them away. The accused came in front of the shop, and Accused No. 1 cut the deceased, who was sitting in front of the shop, on the head with the aruval. Thereafter, Accused No. 2 and Accused No. 3 stabbed the deceased with a vel stick. Lakshmi Ammal died on the spot instantaneously.4. The trial Court disbelieved the prosecution case that all the accused formed themselves into an unlawful assembly with the common object of causing the death of the deceased but found, on the basis of the evidence of PW-1, PW 2 and PW-5 that the injury on the head of the deceased inflicted by Accused No. 1 caused her death and that he was guilty of an offence under S. 302 of the I.P.C. and sentenced him to death. The Court further found that Accused Nos. 2 to 4 were guilty of various offences under the I.P.C. and sentenced them with imprisonment of various descriptions. And as there was no evidence against Accused Nos. 5 to 7, they were acquitted.5. The High Court confirmed the convictions and sentences.6. We think that on the evidence it is clear that all the accused who were Thevars felt humiliated by reason of the fact that a woman belonging to the Vellala community beat Accused No. 1 with a broomstick. The deceased indulged in a sarcastic expression indicating that the community to which the accused belong is not a special one implying that beating a member of the community with a broomstick need not be considered as great insult.The altercation between the accused and the deceased would show that the accused were smarting under the feeling that their community itself was humiliated by one of its members being beaten with broom stick and that the attack was prompted by that feeling and the insolent attitude of the deceased towards their community. In these circumstances, we fell that the extreme penalty of death was not called for and that the lesser sentence of imprisonment for life would meet the ends of justice. | 1[ds]6. We think that on the evidence it is clear that all the accused who were Thevars felt humiliated by reason of the fact that a woman belonging to the Vellala community beat Accused No. 1 with a broomstick. The deceased indulged in a sarcastic expression indicating that the community to which the accused belong is not a special one implying that beating a member of the community with a broomstick need not be considered as great insult.The altercation between the accused and the deceased would show that the accused were smarting under the feeling that their community itself was humiliated by one of its members being beaten with broom stick and that the attack was prompted by that feeling and the insolent attitude of the deceased towards their community. In these circumstances, we fell that the extreme penalty of death was not called for and that the lesser sentence of imprisonment for life would meet the ends of justice. | 1 | 1,141 | 170 | ### Instruction:
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we issued notice to the State of Tamil Nadu on the question of the propriety of sentence of death imposed upon the appellant-petitioner and dismissed the application of the other petitioners.2. In pursuance to the notice the State has entered appearance. After hearing counsel on both sides, we granted special leave limited to the question of sentence and heard the appeal itself and passed an order on December 22, 1972 reducing the sentence to imprisonment for life for reasons to be given later.3. The prosecution case was as follows. PW-1 was running a grocery shop. Accused No. 1 and his wife Lakshmi used to purchase provisions from the shop. About a month prior to the date of the occurrence, PW-1 went to the house of Accused No. 1 in his absence for getting an amount of Rupees 2/- due to PW-1 on account of the purchase of grains from the shop. This conduct of PW-1 in having visited his house in his absence aroused the suspicion of Accused No. 1. PW-1 apprehended an attack from Accused No. 1 for this reason and so he left the village for the time being. During his absence from the village, a meeting of the village panchayat was held to judge the propriety of his conduct in having visited the house of Accused No. 1 in his absence. PW-1 was found guilty and a fine of Rs. 30/- was imposed on PW-1 and that was paid on behalf of PW-1. On April 26, 1970, the day prior to the date of occurrence. Accused No. 1 came to the shop of PW-1 at about 3 P.M and beat him with a chappal for visiting his house in his absence. On April 27, 1970, at about 8.30 A.M. the deceased Lakshmi Ammal, mother of PW-1, PW-2, PW-3 and one Alagiriswami Pillai went to the house of Accused No. 1 to ask him why he beat PW-1 with a chappal on the previous day in spite of the fact that a fine of Rs. 30/- was imposed on PW-1. Then Accused No. 1 came out of the house with an aruval but the aruval was caught hold of by Alagiriswami Pillai. The deceased then beat Accused No. 1 with a broomstick. This was considered to be a great humiliation not only by Accused No. 1 but also by all neighbouring members of the Marva (Thevar) community to which Accused No. 1 belongs. On the same day at about 1 P.M. the deceased was sitting in front of the shop of PW-1 which was situate very near to the house of Accused No. 1. Then Subbammal, wife of Accused No. 6 and Alagammal, wife of Accused No. 3 came in front of the house of Accused No. 1 and said that since a Vellala woman (deceased ) beat a Maravaman (Accused No. 1) with a broomstick, Vellala women should be molested. On hearing this, Accused No. 4 said that the Vellala woman need not be molested, but, on the other hand, Vellala men who came in the morning to the house of Accused No. 1 should be properly dealt with. On hearing the utterance of Accused No. 4, Lakhshmi Ammal, the deceased said that PW-1 was beaten with a chappal and made some sarcastic remark indicating that Thevars (Marvas) are not very special people. On hearing this, Accused No. 7, who was standing in front of the house of Accused No. 1 said :"Come (fellows). We will find out whether the Thevars flag flies or the flag of Vellalas".This was a retort to the sarcastic remark of the deceased and a challenge. Thereafter, Accused Nos. 1 to 7 proceeded towards the house of PW-1 from the house of Accused No. 1. Accused No. 1 was armed with an aruval. Accused No. 2 and Accused No. 3 were armed with a vel stick. On seeing Accused Nos. 1 to 7 advancing towards the shop. PW-1 threw soda bottles to scare them away. The accused came in front of the shop, and Accused No. 1 cut the deceased, who was sitting in front of the shop, on the head with the aruval. Thereafter, Accused No. 2 and Accused No. 3 stabbed the deceased with a vel stick. Lakshmi Ammal died on the spot instantaneously.4. The trial Court disbelieved the prosecution case that all the accused formed themselves into an unlawful assembly with the common object of causing the death of the deceased but found, on the basis of the evidence of PW-1, PW 2 and PW-5 that the injury on the head of the deceased inflicted by Accused No. 1 caused her death and that he was guilty of an offence under S. 302 of the I.P.C. and sentenced him to death. The Court further found that Accused Nos. 2 to 4 were guilty of various offences under the I.P.C. and sentenced them with imprisonment of various descriptions. And as there was no evidence against Accused Nos. 5 to 7, they were acquitted.5. The High Court confirmed the convictions and sentences.6. We think that on the evidence it is clear that all the accused who were Thevars felt humiliated by reason of the fact that a woman belonging to the Vellala community beat Accused No. 1 with a broomstick. The deceased indulged in a sarcastic expression indicating that the community to which the accused belong is not a special one implying that beating a member of the community with a broomstick need not be considered as great insult.The altercation between the accused and the deceased would show that the accused were smarting under the feeling that their community itself was humiliated by one of its members being beaten with broom stick and that the attack was prompted by that feeling and the insolent attitude of the deceased towards their community. In these circumstances, we fell that the extreme penalty of death was not called for and that the lesser sentence of imprisonment for life would meet the ends of justice.
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6. We think that on the evidence it is clear that all the accused who were Thevars felt humiliated by reason of the fact that a woman belonging to the Vellala community beat Accused No. 1 with a broomstick. The deceased indulged in a sarcastic expression indicating that the community to which the accused belong is not a special one implying that beating a member of the community with a broomstick need not be considered as great insult.The altercation between the accused and the deceased would show that the accused were smarting under the feeling that their community itself was humiliated by one of its members being beaten with broom stick and that the attack was prompted by that feeling and the insolent attitude of the deceased towards their community. In these circumstances, we fell that the extreme penalty of death was not called for and that the lesser sentence of imprisonment for life would meet the ends of justice.
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The Idol of Sri Renganathaswamy Represented by its Executive Officer, Joint Commissioner Vs. P K Thoppulan Chettiar, Ramanuja Koodam Anandhana Trust, Rep. by its Managing Trustee and Ors | under Section 6(19) of the Act of 1959. 20. In the present case, the Deed of Settlement states that the charity is to be carried on for the benefit of the devotees of Sri Renganathaswamy who visit during the Chithirai Gajendra Moksham and Padi Eighteen festivals. The devotees as the ultimate beneficiaries of the charity are not an identifiable group of individuals, but constitute an uncertain and fluctuating body of persons. The devotees as a class of beneficiaries are not definitive. The respondent trust is a public trust. The Deed of Settlement spells out that the charitable acts carried out by the settlor: during Chithirai Gajendra Motcham and padi 18 festivals and for the benefit of the devotees during these festivals has been erecting water shed and distributing millet pooridge for three days The activities of the first respondent trust have a connection with Chithirai Gajendra Moksham and Padi Eighteen festivals and the charity is to be carried on for the benefit of the devotees of Sri Renganathaswamy sanctum. The festivals are Hindu religious festivals and the use of the expression devotees indicates that there exists a direct nexus and association between the public charity described in the Deed of Settlement and the Hindu religious festivals. Reference to devotees in the Deed of Settlement also indicates that the endowment is not of a secular nature. The charity which is described in the Deed of Settlement is a public charity associated with a Hindu religious festival. The charity is a religious charity under Section 6(16). Applying the reasoning set out in M J Thulasiraman to the facts of the present case, where money (or property) is endowed for the performance of a religious charity, a specific endowment as defined in Section 6(19) is created. Therefore, the first respondent trust is a specific endowment under the Act of 1959. 21. The appellant in the present case has asserted that there existed a specific endowment in its favour. The Deed of Settlement reveals that even though there was no dedication of the suit property in the name of the appellant, Thoppulan Chettiar had dedicated the property for the purpose of carrying out the charity. The charity of offering services to devotees of Sri Renganathaswamy who visited during particular Hindu religious festivals was of a religious nature. DW 5, the Assistant Superintendent of the appellant temple, admitted during his cross- examination that the appellant temple did not exercise control over the respondent trust and there is no dedication of the suit property in its favour. In these circumstances, it is evident that the Deed of Settlement did not create a specific endowment in favour of the appellant. However, as we have seen, the activities of the first respondent trust do satisfy the definition of a religious charity under the Act of 1959. Therefore, we note that the specific endowment created by the Deed of Settlement is not in favour of the appellant idol but an endowment to a religious charity. 22. Based on the above observations and findings, we find that the Deed of Settlement does create a specific endowment as regulated by the Act of 1959. The specific endowment created is an absolute endowment in favour of the religious charity as understood under the Act of 1959. Section 108 of the Act of 1959 bars the jurisdiction of civil courts to try matters regulated by the provisions of the Act of 1959. Section 108 provides thus: Bar of suits in respect of administration or management of religious institutions, etc.-No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act. In view of Section 108, no suit or legal proceedings in respect of the administration or management of a religious institution or any other matter for determining or deciding which provision is made in the Act shall be instituted in a civil court. Any dispute with respect of administration or management of religious institutions is governed in accordance with the provisions of the Act of 1959. In the present case, the suit filed by the first respondent is not maintainable as under Section 34 of the Act of 1959, the Commissioner is the appropriate authority to approve the proposed sale of land by the first respondent. 23. Learned Senior Counsel appearing for the respondents has raised the argument that under Section 3 12 of the Act of 1959, the provisions of the Act are applicable to charitable endowments only upon the issuance of a notification by the government on grounds of mismanagement by the trustees. It has been argued that in the present case, absent any such notification, the provisions of the Act of 1959 will have no applicability to the first respondent. However, the above submission cannot be accepted. The applicability of Section 3 is restricted to cases where the government has reasons to believe that a Hindu public charitable endowment is being mismanaged. Section 3 empowers the government to cause an inquiry into the affairs of such charitable endowment and in the interests of the administration of such charitable endowment extend the provisions of the Act of 1959. In the present case, absent any such allegations or the Government having any reasons to believe that the trust is being mismanaged, the first respondent cannot place reliance upon Section 3 to exclude itself from the applicability of the provisions of the Act of 1959. As long as there exists a specific endowment as defined in Section 6(19), the provisions of the Act of 1959 will apply to first respondent. As shown above, in the present case, the specific endowment created is an absolute endowment in favour of the religious charity as understood under the Act of 1959. Therefore, the provisions of the Act of 1959 are applicable to the first respondent. | 1[ds]The following points emerge from the Deed of Settlement:(i) Thoppulan Chettiar purchased the suit property in 1877 for the purpose of performing charitable work in reference to Sri Renganathaswamy sanctum. In a part of the suit property, a black stone structure was constructed for Sri Renganathaswamy. During the Hindu festivals of Gajendra Moksham and Aadi, the deity was invited and placed on the black stone structure and Thoppulan Chettiar used to receive providence from the deity;(ii) During the Hindu festivals, Thoppulan Chettiar also erected a water shed and performed charitable activities of distributing millet porridge for the benefit of the devotees who visited the Sri Renganathaswamy sanctum on the suit property. He had been performing the charities for fourteen years prior to the Deed of Settlement;(iii) During the lifetime of Thoppulan Chettiar, these charitable activities were financed out of the Mahimai fund (Gods account), which was replenished by both the settlors own business income and the income arising from the suit property;(iv) After the settlors lifetime, he wished his three sons and their descendants to continue this charitable work and continue receiving providence from the deity. His three sons were to bear the expenditure for the charity out of their business. If, after meeting all the expenditure for undertaking the charity, the heirs possessed excess income, the excess amount was to be transferred to a family fund to be used at a future date for funding the charitable activities in case the family income was insufficient; and(v) There was an absolute prohibition on the sale or mortgage of the suit property, which was reserved and allotted for charitable work. Similarly, the family fund could not be used for clearing debts incurred by the three sonsA specific endowment can result from the allocation of either property or money (or both). Further, the allocation of the property or money can be for either a specific charity or service in a particular math or temple. Alternatively, it can be for the performance of any other religious charity11. During the lifetime of Thoppulan Chettiar, the charitable activities were financed out of the income arising from the suit property. However, the Deed of Settlement makes no mention of the income arising out of the suit property and instead creates an obligation on the settlors legal heirs to fund the charitable activities out of their own business incomes. Therefore, in the present case, no question arises of any endowment of money14. The Deed of Settlement must be examined as a whole to determine the true intention of the settlor. Where the settlor seeks to divest himself of the property entirely for a religious purpose, a public religious charity is created. In the present case, the Deed of Settlement creates an absolute prohibition on the subsequent sale or mortgage of the suit property. The Deed of Settlement provides that, The settler purchased the punja land mentioned in the schedule of property... for the performance of charity work in reference to Sri Renganathanswamy sanctum. The property outlined in the schedule of the Deed of Settlement is described as, Property allotted for charity work. With respect to the legal heirs, the Deed of Settlement creates an obligation on the settlors legal heirs to continue the charitable activities at the suit property out of their business incomes. The settlor had a clear intent to divest himself and his legal heirs of the property and endow it for the continuation of the charitable activities at the suit property. The purpose of the endowment was to carry on charitable work. The Deed of Settlement obligates the legal heirs to continue the charitable activities at the suit propertyIn the present case, the Deed of Settlement states that the charity is to be carried for the benefit of the devotees who visit during certain Hindu religious festivals. The charity is one which benefits the public and the beneficial interest is created in an uncertain and fluctuating body of persons. The devotees as a class of beneficiaries are not definitive and therefore, the respondent trust is a public trustThe decision of the three judge bench in M J Thulasiraman makes it abundantly clear where the charity has a public character, and is associated with a Hindu festival, the charity falls within the definition of specific endowment under Section 6(19) of the Act of 195920. In the present case, the Deed of Settlement states that the charity is to be carried on for the benefit of the devotees of Sri Renganathaswamy who visit during the Chithirai Gajendra Moksham and Padi Eighteen festivals. The devotees as the ultimate beneficiaries of the charity are not an identifiable group of individuals, but constitute an uncertain and fluctuating body of persons. The devotees as a class of beneficiaries are not definitive. The respondent trust is a public trust. The Deed of Settlement spells out that the charitable acts carried out by the settlor:during Chithirai Gajendra Motcham and padi 18 festivals and for the benefit of the devotees during these festivals has been erecting water shed and distributing millet pooridge for three daysThe activities of the first respondent trust have a connection with Chithirai Gajendra Moksham and Padi Eighteen festivals and the charity is to be carried on for the benefit of the devotees of Sri Renganathaswamy sanctum. The festivals are Hindu religious festivals and the use of the expression devotees indicates that there exists a direct nexus and association between the public charity described in the Deed of Settlement and the Hindu religious festivals. Reference to devotees in the Deed of Settlement also indicates that the endowment is not of a secular nature. The charity which is described in the Deed of Settlement is a public charity associated with a Hindu religious festival. The charity is a religious charity under Section 6(16). Applying the reasoning set out in M J Thulasiraman to the facts of the present case, where money (or property) is endowed for the performance of a religious charity, a specific endowment as defined in Section 6(19) is created. Therefore, the first respondent trust is a specific endowment under the Act of 195921. The appellant in the present case has asserted that there existed a specific endowment in its favour. The Deed of Settlement reveals that even though there was no dedication of the suit property in the name of the appellant, Thoppulan Chettiar had dedicated the property for the purpose of carrying out the charity. The charity of offering services to devotees of Sri Renganathaswamy who visited during particular Hindu religious festivals was of a religious nature. DW 5, the Assistant Superintendent of the appellant temple, admitted during his cross- examination that the appellant temple did not exercise control over the respondent trust and there is no dedication of the suit property in its favour. In these circumstances, it is evident that the Deed of Settlement did not create a specific endowment in favour of the appellant. However, as we have seen, the activities of the first respondent trust do satisfy the definition of a religious charity under the Act of 1959. Therefore, we note that the specific endowment created by the Deed of Settlement is not in favour of the appellant idol but an endowment to a religious charity22. Based on the above observations and findings, we find that the Deed of Settlement does create a specific endowment as regulated by the Act of 1959. The specific endowment created is an absolute endowment in favour of the religious charity as understood under the Act of 1959In view of Section 108, no suit or legal proceedings in respect of the administration or management of a religious institution or any other matter for determining or deciding which provision is made in the Act shall be instituted in a civil court. Any dispute with respect of administration or management of religious institutions is governed in accordance with the provisions of the Act of 1959. In the present case, the suit filed by the first respondent is not maintainable as under Section 34 of the Act of 1959, the Commissioner is the appropriate authority to approve the proposed sale of land by the first respondentHowever, the above submission cannot be accepted. The applicability of Section 3 is restricted to cases where the government has reasons to believe that a Hindu public charitable endowment is being mismanaged. Section 3 empowers the government to cause an inquiry into the affairs of such charitable endowment and in the interests of the administration of such charitable endowment extend the provisions of the Act of 1959. In the present case, absent any such allegations or the Government having any reasons to believe that the trust is being mismanaged, the first respondent cannot place reliance upon Section 3 to exclude itself from the applicability of the provisions of the Act of 1959. As long as there exists a specific endowment as defined in Section 6(19), the provisions of the Act of 1959 will apply to first respondent. As shown above, in the presentcase, the specific endowment created is an absolute endowment in favour of the religious charity as understood under the Act of 1959. Therefore, the provisions of the Act of 1959 are applicable to the first respondent. | 1 | 6,290 | 1,679 | ### Instruction:
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under Section 6(19) of the Act of 1959. 20. In the present case, the Deed of Settlement states that the charity is to be carried on for the benefit of the devotees of Sri Renganathaswamy who visit during the Chithirai Gajendra Moksham and Padi Eighteen festivals. The devotees as the ultimate beneficiaries of the charity are not an identifiable group of individuals, but constitute an uncertain and fluctuating body of persons. The devotees as a class of beneficiaries are not definitive. The respondent trust is a public trust. The Deed of Settlement spells out that the charitable acts carried out by the settlor: during Chithirai Gajendra Motcham and padi 18 festivals and for the benefit of the devotees during these festivals has been erecting water shed and distributing millet pooridge for three days The activities of the first respondent trust have a connection with Chithirai Gajendra Moksham and Padi Eighteen festivals and the charity is to be carried on for the benefit of the devotees of Sri Renganathaswamy sanctum. The festivals are Hindu religious festivals and the use of the expression devotees indicates that there exists a direct nexus and association between the public charity described in the Deed of Settlement and the Hindu religious festivals. Reference to devotees in the Deed of Settlement also indicates that the endowment is not of a secular nature. The charity which is described in the Deed of Settlement is a public charity associated with a Hindu religious festival. The charity is a religious charity under Section 6(16). Applying the reasoning set out in M J Thulasiraman to the facts of the present case, where money (or property) is endowed for the performance of a religious charity, a specific endowment as defined in Section 6(19) is created. Therefore, the first respondent trust is a specific endowment under the Act of 1959. 21. The appellant in the present case has asserted that there existed a specific endowment in its favour. The Deed of Settlement reveals that even though there was no dedication of the suit property in the name of the appellant, Thoppulan Chettiar had dedicated the property for the purpose of carrying out the charity. The charity of offering services to devotees of Sri Renganathaswamy who visited during particular Hindu religious festivals was of a religious nature. DW 5, the Assistant Superintendent of the appellant temple, admitted during his cross- examination that the appellant temple did not exercise control over the respondent trust and there is no dedication of the suit property in its favour. In these circumstances, it is evident that the Deed of Settlement did not create a specific endowment in favour of the appellant. However, as we have seen, the activities of the first respondent trust do satisfy the definition of a religious charity under the Act of 1959. Therefore, we note that the specific endowment created by the Deed of Settlement is not in favour of the appellant idol but an endowment to a religious charity. 22. Based on the above observations and findings, we find that the Deed of Settlement does create a specific endowment as regulated by the Act of 1959. The specific endowment created is an absolute endowment in favour of the religious charity as understood under the Act of 1959. Section 108 of the Act of 1959 bars the jurisdiction of civil courts to try matters regulated by the provisions of the Act of 1959. Section 108 provides thus: Bar of suits in respect of administration or management of religious institutions, etc.-No suit or other legal proceeding in respect of the administration or management of a religious institution or any other matter or dispute for determining or deciding which provision is made in this Act shall be instituted in any Court of Law, except under, and in conformity with, the provisions of this Act. In view of Section 108, no suit or legal proceedings in respect of the administration or management of a religious institution or any other matter for determining or deciding which provision is made in the Act shall be instituted in a civil court. Any dispute with respect of administration or management of religious institutions is governed in accordance with the provisions of the Act of 1959. In the present case, the suit filed by the first respondent is not maintainable as under Section 34 of the Act of 1959, the Commissioner is the appropriate authority to approve the proposed sale of land by the first respondent. 23. Learned Senior Counsel appearing for the respondents has raised the argument that under Section 3 12 of the Act of 1959, the provisions of the Act are applicable to charitable endowments only upon the issuance of a notification by the government on grounds of mismanagement by the trustees. It has been argued that in the present case, absent any such notification, the provisions of the Act of 1959 will have no applicability to the first respondent. However, the above submission cannot be accepted. The applicability of Section 3 is restricted to cases where the government has reasons to believe that a Hindu public charitable endowment is being mismanaged. Section 3 empowers the government to cause an inquiry into the affairs of such charitable endowment and in the interests of the administration of such charitable endowment extend the provisions of the Act of 1959. In the present case, absent any such allegations or the Government having any reasons to believe that the trust is being mismanaged, the first respondent cannot place reliance upon Section 3 to exclude itself from the applicability of the provisions of the Act of 1959. As long as there exists a specific endowment as defined in Section 6(19), the provisions of the Act of 1959 will apply to first respondent. As shown above, in the present case, the specific endowment created is an absolute endowment in favour of the religious charity as understood under the Act of 1959. Therefore, the provisions of the Act of 1959 are applicable to the first respondent.
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heirs to continue the charitable activities at the suit property out of their business incomes. The settlor had a clear intent to divest himself and his legal heirs of the property and endow it for the continuation of the charitable activities at the suit property. The purpose of the endowment was to carry on charitable work. The Deed of Settlement obligates the legal heirs to continue the charitable activities at the suit propertyIn the present case, the Deed of Settlement states that the charity is to be carried for the benefit of the devotees who visit during certain Hindu religious festivals. The charity is one which benefits the public and the beneficial interest is created in an uncertain and fluctuating body of persons. The devotees as a class of beneficiaries are not definitive and therefore, the respondent trust is a public trustThe decision of the three judge bench in M J Thulasiraman makes it abundantly clear where the charity has a public character, and is associated with a Hindu festival, the charity falls within the definition of specific endowment under Section 6(19) of the Act of 195920. In the present case, the Deed of Settlement states that the charity is to be carried on for the benefit of the devotees of Sri Renganathaswamy who visit during the Chithirai Gajendra Moksham and Padi Eighteen festivals. The devotees as the ultimate beneficiaries of the charity are not an identifiable group of individuals, but constitute an uncertain and fluctuating body of persons. The devotees as a class of beneficiaries are not definitive. The respondent trust is a public trust. The Deed of Settlement spells out that the charitable acts carried out by the settlor:during Chithirai Gajendra Motcham and padi 18 festivals and for the benefit of the devotees during these festivals has been erecting water shed and distributing millet pooridge for three daysThe activities of the first respondent trust have a connection with Chithirai Gajendra Moksham and Padi Eighteen festivals and the charity is to be carried on for the benefit of the devotees of Sri Renganathaswamy sanctum. The festivals are Hindu religious festivals and the use of the expression devotees indicates that there exists a direct nexus and association between the public charity described in the Deed of Settlement and the Hindu religious festivals. Reference to devotees in the Deed of Settlement also indicates that the endowment is not of a secular nature. The charity which is described in the Deed of Settlement is a public charity associated with a Hindu religious festival. The charity is a religious charity under Section 6(16). Applying the reasoning set out in M J Thulasiraman to the facts of the present case, where money (or property) is endowed for the performance of a religious charity, a specific endowment as defined in Section 6(19) is created. Therefore, the first respondent trust is a specific endowment under the Act of 195921. The appellant in the present case has asserted that there existed a specific endowment in its favour. The Deed of Settlement reveals that even though there was no dedication of the suit property in the name of the appellant, Thoppulan Chettiar had dedicated the property for the purpose of carrying out the charity. The charity of offering services to devotees of Sri Renganathaswamy who visited during particular Hindu religious festivals was of a religious nature. DW 5, the Assistant Superintendent of the appellant temple, admitted during his cross- examination that the appellant temple did not exercise control over the respondent trust and there is no dedication of the suit property in its favour. In these circumstances, it is evident that the Deed of Settlement did not create a specific endowment in favour of the appellant. However, as we have seen, the activities of the first respondent trust do satisfy the definition of a religious charity under the Act of 1959. Therefore, we note that the specific endowment created by the Deed of Settlement is not in favour of the appellant idol but an endowment to a religious charity22. Based on the above observations and findings, we find that the Deed of Settlement does create a specific endowment as regulated by the Act of 1959. The specific endowment created is an absolute endowment in favour of the religious charity as understood under the Act of 1959In view of Section 108, no suit or legal proceedings in respect of the administration or management of a religious institution or any other matter for determining or deciding which provision is made in the Act shall be instituted in a civil court. Any dispute with respect of administration or management of religious institutions is governed in accordance with the provisions of the Act of 1959. In the present case, the suit filed by the first respondent is not maintainable as under Section 34 of the Act of 1959, the Commissioner is the appropriate authority to approve the proposed sale of land by the first respondentHowever, the above submission cannot be accepted. The applicability of Section 3 is restricted to cases where the government has reasons to believe that a Hindu public charitable endowment is being mismanaged. Section 3 empowers the government to cause an inquiry into the affairs of such charitable endowment and in the interests of the administration of such charitable endowment extend the provisions of the Act of 1959. In the present case, absent any such allegations or the Government having any reasons to believe that the trust is being mismanaged, the first respondent cannot place reliance upon Section 3 to exclude itself from the applicability of the provisions of the Act of 1959. As long as there exists a specific endowment as defined in Section 6(19), the provisions of the Act of 1959 will apply to first respondent. As shown above, in the presentcase, the specific endowment created is an absolute endowment in favour of the religious charity as understood under the Act of 1959. Therefore, the provisions of the Act of 1959 are applicable to the first respondent.
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M/s. Madhya Pradesh Industries Ltd Vs. M/s. Rai Bahadur Shriram Durga Prasad Ltd | can be hardly any doubt that the sellers did not comply with the terms of Cl. (5) of the agreement. Analysis both by M/s. Hughes and Davies and M/s. J. S. Williams was an essential part of the contract. In fact at the time of the arguments, we were told that M/s. Hughes and Davies were the nominees of the sellers and M/s. J. S. Williams were the nominees of the buyers. The condition that the samples of the ore to be supplied should be analysis both by M/s. Hughes and Davies and by M/s. J. S. Williams is one of the essential conditions of the contract. It was not open to the sellers to ignore that term. It is true that the contract does not provide for the contingency of either M/s. Hughes and Davies or M/s. J. S. Williams refusing or being unable to analysis the samples taken. We are unable to agree with the contention of Mr. M. C. Chagla, learned Counsel for the sellers that cl. (5) of the contract is not an essential part of the contract. It is clear from the terms of the contract that the parties considered the quality of the ore to be supplied as one of the essential conditions of the contract. When M/s. J. S. Williams refused to analyse the samples, the sellers did not even call upon the buyers to nominate someone else in the place of M/s. J. S. Williams. On the other hand the sellers intimated to the buyers that they were willing to send the samples for analysis to a particular company at Calcutta and if the buyers did not accept that offer, the analysis made by M/s. Hughes and Davies would become final. The buyers rejected that ultimatum. Under the circumstances we are of the opinion that the offers made in May and June were not in accordance with the terms of the contract. 6. According to the buyers the true import of cl. (5) of the contract is that in respect of each supply the parties must first make effort to jointly draw the samples. It is only if there is any dispute between them as regards the drawing of samples in respect of any supply, the parties can call upon M/s. Hughes and Davies to draw the samples. In respect of the supplies made in March and April, the sellers did not afford any opportunity to the buyers to draw the samples jointly. That being so, the samples drawn in respect of those supplies were not drawn in accordance with the contract. But according to the sellers even as far back as January, 1954 they began to entertain a doubt that when samples were drawn jointly, the representative of the buyers indulged in certain manipulations and therefore it decided once and for all that in future samples should be drawn only by M/s. Hughes and Davies. It is contended on behalf of the sellers that after they came to the conclusion that the buyers representative indulged in manipulations at the time of drawing samples jointly, there was no purpose in going through the farce of attempting to draw samples jointly before calling upon M/s. Hughes and Davies to draw samples. The High Court has accepted the construction contended for on behalf of the buyers. We have not thought it necessary to examine as to which of these contentions is the correct one because in our opinion in view of the fact that the supplies made by the sellers in January, February, May and June were not in accordance with the terms of the contract, the sellers were responsible for the breach of the contract. 7. The contention of the sellers that each supply should be considered as a separate contract is untenable. The contract between the parties is one and indivisible. It is a contract to sell and purchase 7500 tons of ore of specified quality. It is true that the sellers were permitted to supply the agreed quantity in instalments but that did not convert each supply into a separate contract. 8. Even if we come to the conclusion that the supplies made in March and April were in accordance with the terms of the contract those supplies would amount to only 2510 tons of ore. The buyers had contracted to purchase 7500 tons. A supply of 2510 tons of ore cannot be considered as complying with the contract. Hence we agree with the trial court as well as with the High Court that it is the sellers who committed the breach of the contract. 9. From the material on record, it is clear that the buyers were waiting for an opportunity to breach the contract. After the contract was entered into, there was a steep fall in the price of manganese ore. It came down from 121 per ton in January, 1954 to Rs. 88/8/- in May of that year. There was slight rise in June but that was very insignificant. Evidently because of that reason, the buyers were looking out for an opportunity to get out of the contract but unfortunately the sellers gave them that opportunity. The rejection by the buyers of the ore supplied in March and April appears to be quite unreasonable. We are satisfied that in this case the conduct of the buyers was not above board. 10. The contract does not provide for payment of any interest on the advance made. Hence the question whether interest should be given on that amount is within the discretion of the court. Similarly the question of interest on that advance during the pendency of the suit is within the discretion of the court. We think under the circumstances of the case, it will be just and proper to disallow the buyers, any interest on the advance made till the date of the decree of the trial court. For the same reason we think that in this Court the parties should be asked to bear their own costs. | 0[ds]It is clear from the terms of the contract that the parties considered the quality of the ore to be supplied as one of the essential conditions of the contract. When M/s. J. S. Williams refused to analyse the samples, the sellers did not even call upon the buyers to nominate someone else in the place of M/s. J. S. Williams. On the other hand the sellers intimated to the buyers that they were willing to send the samples for analysis to a particular company at Calcutta and if the buyers did not accept that offer, the analysis made by M/s. Hughes and Davies would become final. The buyers rejected that ultimatum. Under the circumstances we are of the opinion that the offers made in May and June were not in accordance with the terms of the contractThe High Court has accepted the construction contended for on behalf of the buyers. We have not thought it necessary to examine as to which of these contentions is the correct one because in our opinion in view of the fact that the supplies made by the sellers in January, February, May and June were not in accordance with the terms of the contract, the sellers were responsible for the breach of the contract7. The contention of the sellers that each supply should be considered as a separate contract is untenable. The contract between the parties is one and indivisible. It is a contract to sell and purchase 7500 tons of ore of specified quality. It is true that the sellers were permitted to supply the agreed quantity in instalments but that did not convert each supply into a separate contract8. Even if we come to the conclusion that the supplies made in March and April were in accordance with the terms of the contract those supplies would amount to only 2510 tons of ore. The buyers had contracted to purchase 7500 tons. A supply of 2510 tons of ore cannot be considered as complying with the contract. Hence we agree with the trial court as well as with the High Court that it is the sellers who committed the breach of the contract9. From the material on record, it is clear that the buyers were waiting for an opportunity to breach the contract. After the contract was entered into, there was a steep fall in the price of manganese ore. It came down from 121 per ton in January, 1954 to Rs. 88/8/in May of that year. There was slight rise in June but that was very insignificant. Evidently because of that reason, the buyers were looking out for an opportunity to get out of the contract but unfortunately the sellers gave them that opportunity. The rejection by the buyers of the ore supplied in March and April appears to be quite unreasonable. We are satisfied that in this case the conduct of the buyers was not above board10. The contract does not provide for payment of any interest on the advance made. Hence the question whether interest should be given on that amount is within the discretion of the court. Similarly the question of interest on that advance during the pendency of the suit is within the discretion of the court. We think under the circumstances of the case, it will be just and proper to disallow the buyers, any interest on the advance made till the date of the decree of the trial court. For the same reason we think that in this Court the parties should be asked to bear their own costs. | 0 | 2,272 | 640 | ### 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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can be hardly any doubt that the sellers did not comply with the terms of Cl. (5) of the agreement. Analysis both by M/s. Hughes and Davies and M/s. J. S. Williams was an essential part of the contract. In fact at the time of the arguments, we were told that M/s. Hughes and Davies were the nominees of the sellers and M/s. J. S. Williams were the nominees of the buyers. The condition that the samples of the ore to be supplied should be analysis both by M/s. Hughes and Davies and by M/s. J. S. Williams is one of the essential conditions of the contract. It was not open to the sellers to ignore that term. It is true that the contract does not provide for the contingency of either M/s. Hughes and Davies or M/s. J. S. Williams refusing or being unable to analysis the samples taken. We are unable to agree with the contention of Mr. M. C. Chagla, learned Counsel for the sellers that cl. (5) of the contract is not an essential part of the contract. It is clear from the terms of the contract that the parties considered the quality of the ore to be supplied as one of the essential conditions of the contract. When M/s. J. S. Williams refused to analyse the samples, the sellers did not even call upon the buyers to nominate someone else in the place of M/s. J. S. Williams. On the other hand the sellers intimated to the buyers that they were willing to send the samples for analysis to a particular company at Calcutta and if the buyers did not accept that offer, the analysis made by M/s. Hughes and Davies would become final. The buyers rejected that ultimatum. Under the circumstances we are of the opinion that the offers made in May and June were not in accordance with the terms of the contract. 6. According to the buyers the true import of cl. (5) of the contract is that in respect of each supply the parties must first make effort to jointly draw the samples. It is only if there is any dispute between them as regards the drawing of samples in respect of any supply, the parties can call upon M/s. Hughes and Davies to draw the samples. In respect of the supplies made in March and April, the sellers did not afford any opportunity to the buyers to draw the samples jointly. That being so, the samples drawn in respect of those supplies were not drawn in accordance with the contract. But according to the sellers even as far back as January, 1954 they began to entertain a doubt that when samples were drawn jointly, the representative of the buyers indulged in certain manipulations and therefore it decided once and for all that in future samples should be drawn only by M/s. Hughes and Davies. It is contended on behalf of the sellers that after they came to the conclusion that the buyers representative indulged in manipulations at the time of drawing samples jointly, there was no purpose in going through the farce of attempting to draw samples jointly before calling upon M/s. Hughes and Davies to draw samples. The High Court has accepted the construction contended for on behalf of the buyers. We have not thought it necessary to examine as to which of these contentions is the correct one because in our opinion in view of the fact that the supplies made by the sellers in January, February, May and June were not in accordance with the terms of the contract, the sellers were responsible for the breach of the contract. 7. The contention of the sellers that each supply should be considered as a separate contract is untenable. The contract between the parties is one and indivisible. It is a contract to sell and purchase 7500 tons of ore of specified quality. It is true that the sellers were permitted to supply the agreed quantity in instalments but that did not convert each supply into a separate contract. 8. Even if we come to the conclusion that the supplies made in March and April were in accordance with the terms of the contract those supplies would amount to only 2510 tons of ore. The buyers had contracted to purchase 7500 tons. A supply of 2510 tons of ore cannot be considered as complying with the contract. Hence we agree with the trial court as well as with the High Court that it is the sellers who committed the breach of the contract. 9. From the material on record, it is clear that the buyers were waiting for an opportunity to breach the contract. After the contract was entered into, there was a steep fall in the price of manganese ore. It came down from 121 per ton in January, 1954 to Rs. 88/8/- in May of that year. There was slight rise in June but that was very insignificant. Evidently because of that reason, the buyers were looking out for an opportunity to get out of the contract but unfortunately the sellers gave them that opportunity. The rejection by the buyers of the ore supplied in March and April appears to be quite unreasonable. We are satisfied that in this case the conduct of the buyers was not above board. 10. The contract does not provide for payment of any interest on the advance made. Hence the question whether interest should be given on that amount is within the discretion of the court. Similarly the question of interest on that advance during the pendency of the suit is within the discretion of the court. We think under the circumstances of the case, it will be just and proper to disallow the buyers, any interest on the advance made till the date of the decree of the trial court. For the same reason we think that in this Court the parties should be asked to bear their own costs.
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It is clear from the terms of the contract that the parties considered the quality of the ore to be supplied as one of the essential conditions of the contract. When M/s. J. S. Williams refused to analyse the samples, the sellers did not even call upon the buyers to nominate someone else in the place of M/s. J. S. Williams. On the other hand the sellers intimated to the buyers that they were willing to send the samples for analysis to a particular company at Calcutta and if the buyers did not accept that offer, the analysis made by M/s. Hughes and Davies would become final. The buyers rejected that ultimatum. Under the circumstances we are of the opinion that the offers made in May and June were not in accordance with the terms of the contractThe High Court has accepted the construction contended for on behalf of the buyers. We have not thought it necessary to examine as to which of these contentions is the correct one because in our opinion in view of the fact that the supplies made by the sellers in January, February, May and June were not in accordance with the terms of the contract, the sellers were responsible for the breach of the contract7. The contention of the sellers that each supply should be considered as a separate contract is untenable. The contract between the parties is one and indivisible. It is a contract to sell and purchase 7500 tons of ore of specified quality. It is true that the sellers were permitted to supply the agreed quantity in instalments but that did not convert each supply into a separate contract8. Even if we come to the conclusion that the supplies made in March and April were in accordance with the terms of the contract those supplies would amount to only 2510 tons of ore. The buyers had contracted to purchase 7500 tons. A supply of 2510 tons of ore cannot be considered as complying with the contract. Hence we agree with the trial court as well as with the High Court that it is the sellers who committed the breach of the contract9. From the material on record, it is clear that the buyers were waiting for an opportunity to breach the contract. After the contract was entered into, there was a steep fall in the price of manganese ore. It came down from 121 per ton in January, 1954 to Rs. 88/8/in May of that year. There was slight rise in June but that was very insignificant. Evidently because of that reason, the buyers were looking out for an opportunity to get out of the contract but unfortunately the sellers gave them that opportunity. The rejection by the buyers of the ore supplied in March and April appears to be quite unreasonable. We are satisfied that in this case the conduct of the buyers was not above board10. The contract does not provide for payment of any interest on the advance made. Hence the question whether interest should be given on that amount is within the discretion of the court. Similarly the question of interest on that advance during the pendency of the suit is within the discretion of the court. We think under the circumstances of the case, it will be just and proper to disallow the buyers, any interest on the advance made till the date of the decree of the trial court. For the same reason we think that in this Court the parties should be asked to bear their own costs.
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Shyamalika Das Vs. General Manager, Gridco & Another | to be sustained by the plaintiff can be compensated in money value which is the cardinal principle prescribed under section 38 of the Specific Relief Act under which the suit for permanent injunction was filed. .... Keeping the above aspects of the case in view, it would have been apt for the court to find ways and means to see that public inconvenience is avoided while protecting the interest of the plaintiff. For the above, aid may be drawn from section 89 of the Code of Civil Procedure. It would be apt to state here that it is by now well settled that no legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law, which are necessary for proper discharge of functions and duties imposed upon them by law. .... Thus, applying the inherent power under section 151 CPC along with the provisions of section 89 CPC in consideration of the nature of dispute involved in this appeal, without referring the matter for a settlement out of court, this Court takes up the matter to find out a via media for deciding the case finally and orders that on the appellant paying a sum of Rs.1,75,000/- as compensation for raising High Tension Tower over the land of the respondent, to the respondent, they shall be permitted to draw the transmission line of 220 KV over the land of the respondent as per the scheme. ..." 5. The learned Single Judge misconstrued the scope of section 89 of the Code and the nature of the powers of a court under sections 89 and 151 of the Code. Section 89 merely enables the court to refer the subject matter of the suit to either of the following alternative dispute resolution processes : (a) arbitration; (b) conciliation; (c) judicial settlement; (d) lok adalat; and (e) mediation. Arbitration is an adjudicatory process. The four other processes are non-adjudicatory dispute resolution processes. In a non-adjudicatory process (conciliation or mediation or lok adalat or judicial settlement), there is no `decision but there can only be a settlement by mutual consent of the parties. Where there are no negotiations for a settlement and where the parties do not arrive at a settlement, there cannot obviously be an order by the court rendering a decision in exercise of power under section 89 of the Code. [See : generally Afcons Infrastructure Ltd vs. Cherian Varkey Construction Company Pvt Ltd - 2010 (7) SCALE 293 ). 6. We may usefully refer to the following observations made by this Court in State of Punjab vs. Jalour Singh - (2008) 2 SCC 660 made with reference to lok adalat which will equally apply to the other forms of non- adjudicatory dispute resolution process : "It is evident from the said provisions that Lok Adalats have no adjudicatory or judicial functions. Their functions relate purely to conciliation. A Lok Adalat determines a reference on the basis of a compromise or settlement between the parties at its instance, and put its seal of confirmation by making an award in terms of the compromise or settlement. When the Lok Adalat is not able to arrive at a settlement or compromise, no award is made and the case record is returned to the court from which the reference was received, for disposal in accordance with law. No Lok Adalat has the power to "hear" parties to adjudicate cases as a court does. It discusses the subject matter with the parties and persuades them to arrive at a just settlement. In their conciliatory role, the Lok Adalats are guided by principles of justice, equity, fair play. When the LSA Act refers to determination by the Lok Adalat and award by the Lok Adalat, the said Act does not contemplate nor require an adjudicatory judicial determination, but a non-adjudicatory determination based on a compromise or settlement, arrived at by the parties, with guidance and assistance from the Lok Adalat. The award of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat." 7. In this case, the decision of the High Court is neither in the exercise of its judicial power to decide the lis before it, nor as a consequence of the learned Single Judge acting as a facilitator (that is as a Conciliator or Mediator or Lok Adalat) enabling the parties to arrive at a settlement. Nor was any `judicial settlement attempted or arrived at. There were no negotiations between the parties and no settlement between the parties. What the court has assumed is a jurisdiction, which is an extraordinary amalgamation of imagined judicial and conciliatory power, unknown to the system of law which is followed in Indian Courts. The High Court has heard the parties and rendered a judgment where the decision is not based either on any judicial reasoning or any settlement between the parties but based on what the learned Judge considered as a just and expeditious solution to the dispute under section 89 read with section 151 of the Code. Neither section 89 or section 151 of the Code authorizes or enables the court to pass such an order. 8. As noticed above, the suit was for a permanent injunction. In such a suit, the court cannot issue a direction permitting the respondents to erect the tower and direct respondents to pay compensation of Rs.1,75,000/-, without such questions being in issue and without any material being placed before it by either parties. The enthusiasm of the learned Single Judge to render quick justice has persuaded him to overlook the provisions of law and assume non-existing powers under sections 89 and 151 of the Code. | 1[ds]7. In this case, the decision of the High Court is neither in the exercise of its judicial power to decide the lis before it, nor as a consequence of the learned Single Judge acting as a facilitator (that is as a Conciliator or Mediator or Lok Adalat) enabling the parties to arrive at a settlement. Nor was any `judicial settlement attempted or arrived at. There were no negotiations between the parties and no settlement between the parties. What the court has assumed is a jurisdiction, which is an extraordinary amalgamation of imagined judicial and conciliatory power, unknown to the system of law which is followed in Indian Courts. The High Court has heard the parties and rendered a judgment where the decision is not based either on any judicial reasoning or any settlement between the parties but based on what the learned Judge considered as a just and expeditious solution to the dispute under section 89 read with section 151 of the Code. Neither section 89 or section 151 of the Code authorizes or enables the court to pass such an order.As noticed above, the suit was for a permanent injunction. In such a suit, the court cannot issue a direction permitting the respondents to erect the tower and direct respondents to pay compensation ofwithout such questions being in issue and without any material being placed before it by either parties. The enthusiasm of the learned Single Judge to render quick justice has persuaded him to overlook the provisions of law and assumepowers under sections 89 and 151 of the Code. | 1 | 1,584 | 285 | ### Instruction:
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to be sustained by the plaintiff can be compensated in money value which is the cardinal principle prescribed under section 38 of the Specific Relief Act under which the suit for permanent injunction was filed. .... Keeping the above aspects of the case in view, it would have been apt for the court to find ways and means to see that public inconvenience is avoided while protecting the interest of the plaintiff. For the above, aid may be drawn from section 89 of the Code of Civil Procedure. It would be apt to state here that it is by now well settled that no legislative enactment dealing with procedure can provide for all cases that may possibly arise. The courts, therefore, have inherent powers apart from express provisions of law, which are necessary for proper discharge of functions and duties imposed upon them by law. .... Thus, applying the inherent power under section 151 CPC along with the provisions of section 89 CPC in consideration of the nature of dispute involved in this appeal, without referring the matter for a settlement out of court, this Court takes up the matter to find out a via media for deciding the case finally and orders that on the appellant paying a sum of Rs.1,75,000/- as compensation for raising High Tension Tower over the land of the respondent, to the respondent, they shall be permitted to draw the transmission line of 220 KV over the land of the respondent as per the scheme. ..." 5. The learned Single Judge misconstrued the scope of section 89 of the Code and the nature of the powers of a court under sections 89 and 151 of the Code. Section 89 merely enables the court to refer the subject matter of the suit to either of the following alternative dispute resolution processes : (a) arbitration; (b) conciliation; (c) judicial settlement; (d) lok adalat; and (e) mediation. Arbitration is an adjudicatory process. The four other processes are non-adjudicatory dispute resolution processes. In a non-adjudicatory process (conciliation or mediation or lok adalat or judicial settlement), there is no `decision but there can only be a settlement by mutual consent of the parties. Where there are no negotiations for a settlement and where the parties do not arrive at a settlement, there cannot obviously be an order by the court rendering a decision in exercise of power under section 89 of the Code. [See : generally Afcons Infrastructure Ltd vs. Cherian Varkey Construction Company Pvt Ltd - 2010 (7) SCALE 293 ). 6. We may usefully refer to the following observations made by this Court in State of Punjab vs. Jalour Singh - (2008) 2 SCC 660 made with reference to lok adalat which will equally apply to the other forms of non- adjudicatory dispute resolution process : "It is evident from the said provisions that Lok Adalats have no adjudicatory or judicial functions. Their functions relate purely to conciliation. A Lok Adalat determines a reference on the basis of a compromise or settlement between the parties at its instance, and put its seal of confirmation by making an award in terms of the compromise or settlement. When the Lok Adalat is not able to arrive at a settlement or compromise, no award is made and the case record is returned to the court from which the reference was received, for disposal in accordance with law. No Lok Adalat has the power to "hear" parties to adjudicate cases as a court does. It discusses the subject matter with the parties and persuades them to arrive at a just settlement. In their conciliatory role, the Lok Adalats are guided by principles of justice, equity, fair play. When the LSA Act refers to determination by the Lok Adalat and award by the Lok Adalat, the said Act does not contemplate nor require an adjudicatory judicial determination, but a non-adjudicatory determination based on a compromise or settlement, arrived at by the parties, with guidance and assistance from the Lok Adalat. The award of the Lok Adalat does not mean any independent verdict or opinion arrived at by any decision making process. The making of the award is merely an administrative act of incorporating the terms of settlement or compromise agreed by parties in the presence of the Lok Adalat, in the form of an executable order under the signature and seal of the Lok Adalat." 7. In this case, the decision of the High Court is neither in the exercise of its judicial power to decide the lis before it, nor as a consequence of the learned Single Judge acting as a facilitator (that is as a Conciliator or Mediator or Lok Adalat) enabling the parties to arrive at a settlement. Nor was any `judicial settlement attempted or arrived at. There were no negotiations between the parties and no settlement between the parties. What the court has assumed is a jurisdiction, which is an extraordinary amalgamation of imagined judicial and conciliatory power, unknown to the system of law which is followed in Indian Courts. The High Court has heard the parties and rendered a judgment where the decision is not based either on any judicial reasoning or any settlement between the parties but based on what the learned Judge considered as a just and expeditious solution to the dispute under section 89 read with section 151 of the Code. Neither section 89 or section 151 of the Code authorizes or enables the court to pass such an order. 8. As noticed above, the suit was for a permanent injunction. In such a suit, the court cannot issue a direction permitting the respondents to erect the tower and direct respondents to pay compensation of Rs.1,75,000/-, without such questions being in issue and without any material being placed before it by either parties. The enthusiasm of the learned Single Judge to render quick justice has persuaded him to overlook the provisions of law and assume non-existing powers under sections 89 and 151 of the Code.
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7. In this case, the decision of the High Court is neither in the exercise of its judicial power to decide the lis before it, nor as a consequence of the learned Single Judge acting as a facilitator (that is as a Conciliator or Mediator or Lok Adalat) enabling the parties to arrive at a settlement. Nor was any `judicial settlement attempted or arrived at. There were no negotiations between the parties and no settlement between the parties. What the court has assumed is a jurisdiction, which is an extraordinary amalgamation of imagined judicial and conciliatory power, unknown to the system of law which is followed in Indian Courts. The High Court has heard the parties and rendered a judgment where the decision is not based either on any judicial reasoning or any settlement between the parties but based on what the learned Judge considered as a just and expeditious solution to the dispute under section 89 read with section 151 of the Code. Neither section 89 or section 151 of the Code authorizes or enables the court to pass such an order.As noticed above, the suit was for a permanent injunction. In such a suit, the court cannot issue a direction permitting the respondents to erect the tower and direct respondents to pay compensation ofwithout such questions being in issue and without any material being placed before it by either parties. The enthusiasm of the learned Single Judge to render quick justice has persuaded him to overlook the provisions of law and assumepowers under sections 89 and 151 of the Code.
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M. S. Venkitanarayana Iyer Vs. Collector of Central Excise, Madras | A. R. Sarkar, J.1. This is a petition under Article 32 of the Constitution for a writ quashing the order of the Collector of Customs confiscating certain gold and imposing a fine of Rs. 1, 00, 000/- on the petitioner.2. The facts may be shortly put. Upon information received that contraband gold was being carried by certain persons by train leaving Kohzi Kode station, some Customs Officers attended the station and found one person carrying 50 gold bars. That person was then arrested. Another person standing nearby thereupon threw away a belt which was found to contain another 50 gold bars. That person was also arrested. This happened after 0.30 a.m. on March 16, 1957. Upon the basis of certain statements made by the arrested persons a watch was kept outside the house of the petitioner and about 5.15 a.m. the same morning a person was observed coming out of the house and on searching him a third lot of 50 gold bars was found on his possession. The whole lot of 150 bars was seized by the Customs Officer in charge of the operations. It is not in dispute that the petitioner had sent all this gold through the three persons with whom it was found. The petitioner made a statement to the Customs Officer after his house was searched in which he said that the gold had been supplied to him by one Sreedharan and was smuggled gold. Later he said that he had been coerced into making this statement.3. Notice to show cause why action should not be taken under Section 167(8) of the Sea Customs Act, 1878 was served on the petitioner. In answer to the notice he stated that he had bought the gold through a broker named Koyo for which he had paid Rs. 3, 000/- and had undertaken to pay the balance at the rate of Rs. 99/8/- per tola for 1501 tolas which was the total weight of the gold. The Collector of Customs gave full opportunity to the petitioner to explain the possession of the gold but the petitioner did not call any witness to support his explanation. The Collector, relying on Section 178A of the Sea Customs Act which puts the burden of proving that the gold was not smuggled gold on the person claiming to be entitled to it, passed the order sought to be impugned by the petitioner. He found the gold to be smuggled gold.4. In Ujjam Bai v. The State of Uttar Pradesh - Writ Petition No. 79 of 1959, this Court held that the validity of an order made by a quasi-judicial authority under a statute which was intra vires and in the undoubted exercise of its jurisdiction could not be questioned by a petition under Article 32 of the Constitution. It seems to us that the present case is governed by this decision and therefore the petition is not maintainable. The order challenged was made by the Collector of Customs, a quasi-judicial authority, in the undoubted exercise of his jurisdiction under the Sea Customs Act which is fully intra vires. Even Section 178A of the Act has been held by this Court to be fully valid : See Collector of Customs v. Nathella Sampathu Chetty - AIR 1962 SC 316.5. Learned Advocate for the petitioner contended that the order had been passed without jurisdiction. He first said that the seizing officer had no reason to think that the gold had been smuggled and the Collector had therefore no jurisdiction to act under Section 178A. This contention is entirely unfounded. We will assume that it raises a question of jurisdiction. The notice to show cause itself mentions that there was reason to believe that the goods seized had been imported clandestinely. On the facts of this case which we have earlier summarised it is perfectly clear that a belief could reasonably be entertained that the gold dealt with was smuggled gold. One does not send out emissaries with gold at 5 oclock in the morning or at 12 oclock at night. The petitioner never contended before the Collector that the seizing officer did not at the time of the seizure have reason to believe that the gold was smuggled. He cannot therefore, now complain if the belief was not specifically referred to in the order that the Collector passed. He never took the point that the Collector had no jurisdiction to apply Section 178A. We may also add here that the gold bars bore the number 999 which is a number found on imported gold only.6. Then it was said that the notice was bad because it was issued by the seizing officer. We will assume that it was so issued. We are not however satisfied that such a notice will be bad. No authority in support of such a contention had been cited to us.7. Lastly, it was contended that the penalty of Rs. 1, 00, 000/- had been wrongly imposed because the petitioner could not on the facts be said to have been concerned in the act of smuggling the gold. We think it enough to dispose of this point by saying that we are dealing with this matter on a writ petition under Article 32 and as no error of jurisdiction is alleged, there is no violation of any fundamental right. | 0[ds]It seems to us that the present case is governed by this decision and therefore the petition is not maintainable. The order challenged was made by the Collector of Customs, aauthority, in the undoubted exercise of his jurisdiction under the Sea Customs Act which is fully intra vires. Even Section 178A of the Act has been held by this Court to be fully valid : See Collector of Customs v. Nathella Sampathu ChettyAIR 1962 SCcontention is entirely unfounded. We will assume that it raises a question of jurisdiction. The notice to show cause itself mentions that there was reason to believe that the goods seized had been imported clandestinely. On the facts of this case which we have earlier summarised it is perfectly clear that a belief could reasonably be entertained that the gold dealt with was smuggled gold. One does not send out emissaries with gold at 5 oclock in the morning or at 12 oclock at night. The petitioner never contended before the Collector that the seizing officer did not at the time of the seizure have reason to believe that the gold was smuggled. He cannot therefore, now complain if the belief was not specifically referred to in the order that the Collector passed. He never took the point that the Collector had no jurisdiction to apply Section 178A. We may also add here that the gold bars bore the number 999 which is a number found on imported gold only.6. Then it was said that the notice was bad because it was issued by the seizing officer. We will assume that it was so issued. We are not however satisfied that such a notice will be bad. No authority in support of such a contention had been cited tothink it enough to dispose of this point by saying that we are dealing with this matter on a writ petition under Article 32 and as no error of jurisdiction is alleged, there is no violation of any fundamental right. | 0 | 954 | 356 | ### 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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A. R. Sarkar, J.1. This is a petition under Article 32 of the Constitution for a writ quashing the order of the Collector of Customs confiscating certain gold and imposing a fine of Rs. 1, 00, 000/- on the petitioner.2. The facts may be shortly put. Upon information received that contraband gold was being carried by certain persons by train leaving Kohzi Kode station, some Customs Officers attended the station and found one person carrying 50 gold bars. That person was then arrested. Another person standing nearby thereupon threw away a belt which was found to contain another 50 gold bars. That person was also arrested. This happened after 0.30 a.m. on March 16, 1957. Upon the basis of certain statements made by the arrested persons a watch was kept outside the house of the petitioner and about 5.15 a.m. the same morning a person was observed coming out of the house and on searching him a third lot of 50 gold bars was found on his possession. The whole lot of 150 bars was seized by the Customs Officer in charge of the operations. It is not in dispute that the petitioner had sent all this gold through the three persons with whom it was found. The petitioner made a statement to the Customs Officer after his house was searched in which he said that the gold had been supplied to him by one Sreedharan and was smuggled gold. Later he said that he had been coerced into making this statement.3. Notice to show cause why action should not be taken under Section 167(8) of the Sea Customs Act, 1878 was served on the petitioner. In answer to the notice he stated that he had bought the gold through a broker named Koyo for which he had paid Rs. 3, 000/- and had undertaken to pay the balance at the rate of Rs. 99/8/- per tola for 1501 tolas which was the total weight of the gold. The Collector of Customs gave full opportunity to the petitioner to explain the possession of the gold but the petitioner did not call any witness to support his explanation. The Collector, relying on Section 178A of the Sea Customs Act which puts the burden of proving that the gold was not smuggled gold on the person claiming to be entitled to it, passed the order sought to be impugned by the petitioner. He found the gold to be smuggled gold.4. In Ujjam Bai v. The State of Uttar Pradesh - Writ Petition No. 79 of 1959, this Court held that the validity of an order made by a quasi-judicial authority under a statute which was intra vires and in the undoubted exercise of its jurisdiction could not be questioned by a petition under Article 32 of the Constitution. It seems to us that the present case is governed by this decision and therefore the petition is not maintainable. The order challenged was made by the Collector of Customs, a quasi-judicial authority, in the undoubted exercise of his jurisdiction under the Sea Customs Act which is fully intra vires. Even Section 178A of the Act has been held by this Court to be fully valid : See Collector of Customs v. Nathella Sampathu Chetty - AIR 1962 SC 316.5. Learned Advocate for the petitioner contended that the order had been passed without jurisdiction. He first said that the seizing officer had no reason to think that the gold had been smuggled and the Collector had therefore no jurisdiction to act under Section 178A. This contention is entirely unfounded. We will assume that it raises a question of jurisdiction. The notice to show cause itself mentions that there was reason to believe that the goods seized had been imported clandestinely. On the facts of this case which we have earlier summarised it is perfectly clear that a belief could reasonably be entertained that the gold dealt with was smuggled gold. One does not send out emissaries with gold at 5 oclock in the morning or at 12 oclock at night. The petitioner never contended before the Collector that the seizing officer did not at the time of the seizure have reason to believe that the gold was smuggled. He cannot therefore, now complain if the belief was not specifically referred to in the order that the Collector passed. He never took the point that the Collector had no jurisdiction to apply Section 178A. We may also add here that the gold bars bore the number 999 which is a number found on imported gold only.6. Then it was said that the notice was bad because it was issued by the seizing officer. We will assume that it was so issued. We are not however satisfied that such a notice will be bad. No authority in support of such a contention had been cited to us.7. Lastly, it was contended that the penalty of Rs. 1, 00, 000/- had been wrongly imposed because the petitioner could not on the facts be said to have been concerned in the act of smuggling the gold. We think it enough to dispose of this point by saying that we are dealing with this matter on a writ petition under Article 32 and as no error of jurisdiction is alleged, there is no violation of any fundamental right.
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### Explanation:
It seems to us that the present case is governed by this decision and therefore the petition is not maintainable. The order challenged was made by the Collector of Customs, aauthority, in the undoubted exercise of his jurisdiction under the Sea Customs Act which is fully intra vires. Even Section 178A of the Act has been held by this Court to be fully valid : See Collector of Customs v. Nathella Sampathu ChettyAIR 1962 SCcontention is entirely unfounded. We will assume that it raises a question of jurisdiction. The notice to show cause itself mentions that there was reason to believe that the goods seized had been imported clandestinely. On the facts of this case which we have earlier summarised it is perfectly clear that a belief could reasonably be entertained that the gold dealt with was smuggled gold. One does not send out emissaries with gold at 5 oclock in the morning or at 12 oclock at night. The petitioner never contended before the Collector that the seizing officer did not at the time of the seizure have reason to believe that the gold was smuggled. He cannot therefore, now complain if the belief was not specifically referred to in the order that the Collector passed. He never took the point that the Collector had no jurisdiction to apply Section 178A. We may also add here that the gold bars bore the number 999 which is a number found on imported gold only.6. Then it was said that the notice was bad because it was issued by the seizing officer. We will assume that it was so issued. We are not however satisfied that such a notice will be bad. No authority in support of such a contention had been cited tothink it enough to dispose of this point by saying that we are dealing with this matter on a writ petition under Article 32 and as no error of jurisdiction is alleged, there is no violation of any fundamental right.
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H.V. Nirmala & Another Vs. R. Sharmila & Another | wife died on 24.02.1989 and Ramaiah died on 26.11.1995. 7. On 11.10.1995, Umesh (defendant No.1) filed a civil suit being O.S. No.7266 of 1996 against Nirmala and Rakesh Babu. This suit was filed for partition of the properties owned by late Ramaiah Reddy. It was based on the Will dated 20.05.1995 said to have been executed by Ramaiah in favour of three parties to the suit. 8. The parties compromised the suit and accordingly the compromise decree was passed on 25.01.1997 without any contest on merits. 9. On 04.11.2000, Sharmila - daughter from first wife filed a civil suit being OS No.7592 of 2000 in the Court of City Civil Judge, Bangalore against Nirmala, Umesh and Rakesh Babu, out of which the present appeal arises. This suit was for a declaration that the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996 is not binding on her; that she is the lawful owner of the properties specified in the schedule on the basis of the Will dated 12.03.1980 executed by Ramaiah in her favour. 10. The three defendants filed the written statement. They denied the Will dated 12.03.1980 set up by the plaintiff and supported the compromise decree obtained by them on 25.01.1997 in O.S. No.7266 of 1996. The Trial Court framed the issues. Parties adduced their evidence. The Trial Court, by its judgment and order dated 28.08.2008, dismissed the suit. It was held that the plaintiff having failed to prove the original Will dated 12.03.1980, the suit must fail. In other words, the Trial Court was of the view that it is not possible to hold, in the absence of sufficient evidence adduced by the plaintiff, that the Will dated 12.03.1980 is proved in accordance with law. 11. The plaintiff, felt aggrieved by the dismissal of her suit, filed first appeal before the High Court of Karnataka, out of which this appeal arises. 12. By the impugned judgment/decree, the High Court allowed the appeal, set aside the judgment/decree of the Trial Court and decreed the plaintiffs suit. The High Court held that the plaintiff was able to prove the Will dated 12.03.1980 in accordance with law with the evidence adduced by her and hence she was entitled for a declaration as claimed by her in the suit relating to the suit properties. Defendant Nos. 2 and 3 felt aggrieved by the impugned judgment of the High Court and filed this appeal by special leave in this Court. 13. 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 High Court appears to be right in its reasoning and the conclusion. 14. The fate of this appeal depends upon one question, namely, whether the Plaintiff (Respondent No.1 herein) was able to prove the Will dated 12.03.1980 in accordance with law. 15. As mentioned above, the Trial Court decided the question against the plaintiff whereas the first Appellate Court decided the question in plaintiffs favour. 16. Having examined, we are inclined to concur with the reasoning of the High Court and accordingly answer the question in favour of respondent No.1, i.e., the plaintiff and against the appellants (defendant Nos. 2 and 3). In other words, we hold that the plaintiff was able to prove the Will dated 12.03.1980 in accordance with law and there is no reason to hold otherwise. This we say for the following reasons. 17. First, the Will dated 12.03.1980 is a registered Will. Second, it was executed by none other than the father-Ramaiah in favour of his minor daughter-Sharmila and minor Son-Umesh born from first wife. Third, when Ramaiah-the father bequeathed his property to his minor children then we find nothing unnatural in it. In our opinion, it is a natural bequeath out of love and affection. Fourth, there is no question of minor daughter and son playing an active role in execution of the Will dated 12.03.1980 in their favour. It is for the simple reason that both were too young to indulge in any kind of illegal acts to grab the suit property. In other words, it was too much to expect from the minor children to play any active role in grabbing their fathers property and create forged Will. Fifth, it has come in the evidence that the original Will dated 12.03.1980 was not in possession of the plaintiff but it was in possession of defendant No.1. For this reason, the plaintiff filed its certified copy after obtaining from Registrars office. Sixth, this explanation was accepted by the High Court and, in our opinion, rightly. Seventh, since the original Will was not in plaintiffs possession, its existence and legality could be proved by the plaintiff by leading the secondary evidence. Eighth, the plaintiff proved the Will dated 12.03.1980 in accordance with the requirement of Section 68 of the Evidence Act, 1872 by adducing her own evidence and by examining one attesting witness of the Will. In our view, such evidence was sufficient to prove the Will. Ninth, it is not in dispute that the later Will dated 20.05.1995 disclosed by the defendants did not find mention therein the fact of execution of first Will dated 12.03.1980 by the testator. In our view, the Will dated 20.05.1995 should have found reference of the earlier Will dated 12.03.1980 because Will dated 12.03.1980 was a registered Will and in order to prevail the last Will over the earlier one, the reference of revocation of the earlier Will dated 12.03.1980 was necessary in the later Will. It was not so. Tenth, since the plaintiff was not a party to the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996, it was not binding on her. Lastly, once the Will dated 12.03.1980 is held proved, in accordance with law, the plaintiff becomes entitled to claim a declaration in her favour that she is the owner of the properties bequeathed to her by the testator as specified in the Will. | 0[ds]13. 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 High Court appears to be right in its reasoning and the conclusion16. Having examined, we are inclined to concur with the reasoning of the High Court and accordingly answer the question in favour of respondent No.1, i.e., the plaintiff and against the appellants (defendant Nos. 2 and 3). In other words, we hold that the plaintiff was able to prove the Will dated 12.03.1980 in accordance with law and there is no reason to hold otherwise. This we say for the following reasons17. First, the Will dated 12.03.1980 is a registered Will. Second, it was executed by none other than theh in favour of his minorh born from first wife. Third, whene father bequeathed his property to his minor children then we find nothing unnatural in it. In our opinion, it is a natural bequeath out of love and affection. Fourth, there is no question of minor daughter and son playing an active role in execution of the Will dated 12.03.1980 in their favour. It is for the simple reason that both were too young to indulge in any kind of illegal acts to grab the suit property. In other words, it was too much to expect from the minor children to play any active role in grabbing their fathers property and create forged Will. Fifth, it has come in the evidence that the original Will dated 12.03.1980 was not in possession of the plaintiff but it was in possession of defendant No.1. For this reason, the plaintiff filed its certified copy after obtaining from Registrars office. Sixth, this explanation was accepted by the High Court and, in our opinion, rightly. Seventh, since the original Will was not in plaintiffs possession, its existence and legality could be proved by the plaintiff by leading the secondary evidence. Eighth, the plaintiff proved the Will dated 12.03.1980 in accordance with the requirement of Section 68 of the Evidence Act, 1872 by adducing her own evidence and by examining one attesting witness of the Will. In our view, such evidence was sufficient to prove the Will. Ninth, it is not in dispute that the later Will dated 20.05.1995 disclosed by the defendants did not find mention therein the fact of execution of first Will dated 12.03.1980 by the testator. In our view, the Will dated 20.05.1995 should have found reference of the earlier Will dated 12.03.1980 because Will dated 12.03.1980 was a registered Will and in order to prevail the last Will over the earlier one, the reference of revocation of the earlier Will dated 12.03.1980 was necessary in the later Will. It was not so. Tenth, since the plaintiff was not a party to the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996, it was not binding on her. Lastly, once the Will dated 12.03.1980 is held proved, in accordance with law, the plaintiff becomes entitled to claim a declaration in her favour that she is the owner of the properties bequeathed to her by the testator as specified in the Will. | 0 | 1,400 | 591 | ### 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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wife died on 24.02.1989 and Ramaiah died on 26.11.1995. 7. On 11.10.1995, Umesh (defendant No.1) filed a civil suit being O.S. No.7266 of 1996 against Nirmala and Rakesh Babu. This suit was filed for partition of the properties owned by late Ramaiah Reddy. It was based on the Will dated 20.05.1995 said to have been executed by Ramaiah in favour of three parties to the suit. 8. The parties compromised the suit and accordingly the compromise decree was passed on 25.01.1997 without any contest on merits. 9. On 04.11.2000, Sharmila - daughter from first wife filed a civil suit being OS No.7592 of 2000 in the Court of City Civil Judge, Bangalore against Nirmala, Umesh and Rakesh Babu, out of which the present appeal arises. This suit was for a declaration that the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996 is not binding on her; that she is the lawful owner of the properties specified in the schedule on the basis of the Will dated 12.03.1980 executed by Ramaiah in her favour. 10. The three defendants filed the written statement. They denied the Will dated 12.03.1980 set up by the plaintiff and supported the compromise decree obtained by them on 25.01.1997 in O.S. No.7266 of 1996. The Trial Court framed the issues. Parties adduced their evidence. The Trial Court, by its judgment and order dated 28.08.2008, dismissed the suit. It was held that the plaintiff having failed to prove the original Will dated 12.03.1980, the suit must fail. In other words, the Trial Court was of the view that it is not possible to hold, in the absence of sufficient evidence adduced by the plaintiff, that the Will dated 12.03.1980 is proved in accordance with law. 11. The plaintiff, felt aggrieved by the dismissal of her suit, filed first appeal before the High Court of Karnataka, out of which this appeal arises. 12. By the impugned judgment/decree, the High Court allowed the appeal, set aside the judgment/decree of the Trial Court and decreed the plaintiffs suit. The High Court held that the plaintiff was able to prove the Will dated 12.03.1980 in accordance with law with the evidence adduced by her and hence she was entitled for a declaration as claimed by her in the suit relating to the suit properties. Defendant Nos. 2 and 3 felt aggrieved by the impugned judgment of the High Court and filed this appeal by special leave in this Court. 13. 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 High Court appears to be right in its reasoning and the conclusion. 14. The fate of this appeal depends upon one question, namely, whether the Plaintiff (Respondent No.1 herein) was able to prove the Will dated 12.03.1980 in accordance with law. 15. As mentioned above, the Trial Court decided the question against the plaintiff whereas the first Appellate Court decided the question in plaintiffs favour. 16. Having examined, we are inclined to concur with the reasoning of the High Court and accordingly answer the question in favour of respondent No.1, i.e., the plaintiff and against the appellants (defendant Nos. 2 and 3). In other words, we hold that the plaintiff was able to prove the Will dated 12.03.1980 in accordance with law and there is no reason to hold otherwise. This we say for the following reasons. 17. First, the Will dated 12.03.1980 is a registered Will. Second, it was executed by none other than the father-Ramaiah in favour of his minor daughter-Sharmila and minor Son-Umesh born from first wife. Third, when Ramaiah-the father bequeathed his property to his minor children then we find nothing unnatural in it. In our opinion, it is a natural bequeath out of love and affection. Fourth, there is no question of minor daughter and son playing an active role in execution of the Will dated 12.03.1980 in their favour. It is for the simple reason that both were too young to indulge in any kind of illegal acts to grab the suit property. In other words, it was too much to expect from the minor children to play any active role in grabbing their fathers property and create forged Will. Fifth, it has come in the evidence that the original Will dated 12.03.1980 was not in possession of the plaintiff but it was in possession of defendant No.1. For this reason, the plaintiff filed its certified copy after obtaining from Registrars office. Sixth, this explanation was accepted by the High Court and, in our opinion, rightly. Seventh, since the original Will was not in plaintiffs possession, its existence and legality could be proved by the plaintiff by leading the secondary evidence. Eighth, the plaintiff proved the Will dated 12.03.1980 in accordance with the requirement of Section 68 of the Evidence Act, 1872 by adducing her own evidence and by examining one attesting witness of the Will. In our view, such evidence was sufficient to prove the Will. Ninth, it is not in dispute that the later Will dated 20.05.1995 disclosed by the defendants did not find mention therein the fact of execution of first Will dated 12.03.1980 by the testator. In our view, the Will dated 20.05.1995 should have found reference of the earlier Will dated 12.03.1980 because Will dated 12.03.1980 was a registered Will and in order to prevail the last Will over the earlier one, the reference of revocation of the earlier Will dated 12.03.1980 was necessary in the later Will. It was not so. Tenth, since the plaintiff was not a party to the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996, it was not binding on her. Lastly, once the Will dated 12.03.1980 is held proved, in accordance with law, the plaintiff becomes entitled to claim a declaration in her favour that she is the owner of the properties bequeathed to her by the testator as specified in the Will.
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### Explanation:
13. 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 High Court appears to be right in its reasoning and the conclusion16. Having examined, we are inclined to concur with the reasoning of the High Court and accordingly answer the question in favour of respondent No.1, i.e., the plaintiff and against the appellants (defendant Nos. 2 and 3). In other words, we hold that the plaintiff was able to prove the Will dated 12.03.1980 in accordance with law and there is no reason to hold otherwise. This we say for the following reasons17. First, the Will dated 12.03.1980 is a registered Will. Second, it was executed by none other than theh in favour of his minorh born from first wife. Third, whene father bequeathed his property to his minor children then we find nothing unnatural in it. In our opinion, it is a natural bequeath out of love and affection. Fourth, there is no question of minor daughter and son playing an active role in execution of the Will dated 12.03.1980 in their favour. It is for the simple reason that both were too young to indulge in any kind of illegal acts to grab the suit property. In other words, it was too much to expect from the minor children to play any active role in grabbing their fathers property and create forged Will. Fifth, it has come in the evidence that the original Will dated 12.03.1980 was not in possession of the plaintiff but it was in possession of defendant No.1. For this reason, the plaintiff filed its certified copy after obtaining from Registrars office. Sixth, this explanation was accepted by the High Court and, in our opinion, rightly. Seventh, since the original Will was not in plaintiffs possession, its existence and legality could be proved by the plaintiff by leading the secondary evidence. Eighth, the plaintiff proved the Will dated 12.03.1980 in accordance with the requirement of Section 68 of the Evidence Act, 1872 by adducing her own evidence and by examining one attesting witness of the Will. In our view, such evidence was sufficient to prove the Will. Ninth, it is not in dispute that the later Will dated 20.05.1995 disclosed by the defendants did not find mention therein the fact of execution of first Will dated 12.03.1980 by the testator. In our view, the Will dated 20.05.1995 should have found reference of the earlier Will dated 12.03.1980 because Will dated 12.03.1980 was a registered Will and in order to prevail the last Will over the earlier one, the reference of revocation of the earlier Will dated 12.03.1980 was necessary in the later Will. It was not so. Tenth, since the plaintiff was not a party to the compromise decree dated 25.01.1997 passed in OS No.7266 of 1996, it was not binding on her. Lastly, once the Will dated 12.03.1980 is held proved, in accordance with law, the plaintiff becomes entitled to claim a declaration in her favour that she is the owner of the properties bequeathed to her by the testator as specified in the Will.
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Smt. P. Grover Vs. State Of Haryana And Anr | CHINNAPPA REDDY, J. 1. Special leave granted. 2. Smt. P. Grover w as an outstanding teacher. In 1968-69, the Government of Haryana honoured her by presenting the State Award for teachers. She attained the age of superannuation on August 2s0, 1978. About two years before she attained the age of superannuation, she was promoted as acting District Education Officer with effect from July 19, 1976. The Government of Haryana had taken a policy decision as early as in 1965 that the Services of teachers, who had received the National or State Awards, should be extended until they attained the age of 60 years, on an year by year basis, if their service record continued to be good otherwise. Pursuant to the policy decision, Smt. Grovers services were extended first by one year and later by another year. During the period of extension of service, she worked as Principal, Government Higher Secondary School, Mahendergarh. She finally retired from service on August 31, 1980. 3. We mentioned that she was promoted as an acting District Education officer with effect from July 19, 1976. The order of promotion contained a super-added condition that she would draw her own pay scale which apparently meant that she would continue to draw her salary on her pay scale prior to promotion. The initial order extending her services recited that she was an acting District Education Officer, but contained a super-added condition that her pay would not be more than the maximum of the Principals grade. Smt. Grover claims that having been promoted as District Education officer, she was entitled to the pay of a District Education officer and there was no justification for denying the same to her. A writ petition filed by her was dismissed by the High Court of Punjab and Haryana and she is before us by way of special leave under Art. 136 of the Constitution. The counter-affidavit filed on behalf of the Government of Haryana offers no rational explanation for denying the pay of District Education Officer to Smt. P. Grover after she was promoted to act as District Education officer. All that was said in the counter-affidavit was that there were no Class-I post available and therefore, she was not entitled to be paid the salary of District Education officer. We are un able to understand the reason given in the counter- affidavit. She was promoted to the post of District Education officer, a Class-I post, on an acting basis. Our attention was not invited to any rule which provides that promotion on an acting basis would not entitle the officer promoted to the pay of the post. | 1[ds]We mentioned that she was promoted as an acting District Education officer with effect from July 19, 1976. The order of promotion contained ad condition that she would draw her own pay scale which apparently meant that she would continue to draw her salary on her pay scale prior to promotion. The initial order extending her services recited that she was an acting District Education Officer, but contained ad condition that her pay would not be more than the maximum of the Principals grade. Smt. Grover claims that having been promoted as District Education officer, she was entitled to the pay of a District Education officer and there was no justification for denying the same to her. A writ petition filed by her was dismissed by the High Court of Punjab and Haryana and she is before us by way of special leave under Art. 136 of the Constitution.The counter-affidavit filed on behalf of the Government of Haryana offers no rational explanation for denying the pay of District Education Officer to Smt. P. Grover after she was promoted to act as District Education officer. All that was said in the counter-affidavit was that there were no Class-I post available and therefore, she was not entitled to be paid the salary of District Education officer. We are un able to understand the reason given in the counter- affidavit. She was promoted to the post of District Education officer, a Class-I post, on an acting basis. Our attention was not invited to any rule which provides that promotion on an acting basis would not entitle the officer promoted to the pay of the post. In the absence of any rule justifying such refusal to pay to an officer promoted to a higher post the salary of such higher post (the validity of such a rule would be doubtful if it existed), we must hold that Smt. Grover is entitled to be paid the salary of a District Education officer from the date she was promoted to the post, that is, July 19, 1976, until she retired from service on August 31, 1980. | 1 | 486 | 382 | ### Instruction:
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CHINNAPPA REDDY, J. 1. Special leave granted. 2. Smt. P. Grover w as an outstanding teacher. In 1968-69, the Government of Haryana honoured her by presenting the State Award for teachers. She attained the age of superannuation on August 2s0, 1978. About two years before she attained the age of superannuation, she was promoted as acting District Education Officer with effect from July 19, 1976. The Government of Haryana had taken a policy decision as early as in 1965 that the Services of teachers, who had received the National or State Awards, should be extended until they attained the age of 60 years, on an year by year basis, if their service record continued to be good otherwise. Pursuant to the policy decision, Smt. Grovers services were extended first by one year and later by another year. During the period of extension of service, she worked as Principal, Government Higher Secondary School, Mahendergarh. She finally retired from service on August 31, 1980. 3. We mentioned that she was promoted as an acting District Education officer with effect from July 19, 1976. The order of promotion contained a super-added condition that she would draw her own pay scale which apparently meant that she would continue to draw her salary on her pay scale prior to promotion. The initial order extending her services recited that she was an acting District Education Officer, but contained a super-added condition that her pay would not be more than the maximum of the Principals grade. Smt. Grover claims that having been promoted as District Education officer, she was entitled to the pay of a District Education officer and there was no justification for denying the same to her. A writ petition filed by her was dismissed by the High Court of Punjab and Haryana and she is before us by way of special leave under Art. 136 of the Constitution. The counter-affidavit filed on behalf of the Government of Haryana offers no rational explanation for denying the pay of District Education Officer to Smt. P. Grover after she was promoted to act as District Education officer. All that was said in the counter-affidavit was that there were no Class-I post available and therefore, she was not entitled to be paid the salary of District Education officer. We are un able to understand the reason given in the counter- affidavit. She was promoted to the post of District Education officer, a Class-I post, on an acting basis. Our attention was not invited to any rule which provides that promotion on an acting basis would not entitle the officer promoted to the pay of the post.
### Response:
1
### Explanation:
We mentioned that she was promoted as an acting District Education officer with effect from July 19, 1976. The order of promotion contained ad condition that she would draw her own pay scale which apparently meant that she would continue to draw her salary on her pay scale prior to promotion. The initial order extending her services recited that she was an acting District Education Officer, but contained ad condition that her pay would not be more than the maximum of the Principals grade. Smt. Grover claims that having been promoted as District Education officer, she was entitled to the pay of a District Education officer and there was no justification for denying the same to her. A writ petition filed by her was dismissed by the High Court of Punjab and Haryana and she is before us by way of special leave under Art. 136 of the Constitution.The counter-affidavit filed on behalf of the Government of Haryana offers no rational explanation for denying the pay of District Education Officer to Smt. P. Grover after she was promoted to act as District Education officer. All that was said in the counter-affidavit was that there were no Class-I post available and therefore, she was not entitled to be paid the salary of District Education officer. We are un able to understand the reason given in the counter- affidavit. She was promoted to the post of District Education officer, a Class-I post, on an acting basis. Our attention was not invited to any rule which provides that promotion on an acting basis would not entitle the officer promoted to the pay of the post. In the absence of any rule justifying such refusal to pay to an officer promoted to a higher post the salary of such higher post (the validity of such a rule would be doubtful if it existed), we must hold that Smt. Grover is entitled to be paid the salary of a District Education officer from the date she was promoted to the post, that is, July 19, 1976, until she retired from service on August 31, 1980.
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NAWAL KISHORE SHARMA Vs. UNION OF INDIA AND ORS | and Disability Compensation. 11. As can be seen from above, 100% compensation is payable to a seaman under Clause 5.9. F (ii) in a situation where a seaman is found medically unfit for sea service, as a result of injury, while in employment. But it is not the case of either side that the appellant had suffered anyaccidental injury in course of his engagement in the sea vessel. The question then is, whether the term injury, should be construed in the manner suggested by the appellants counsel as anything which diminishes the health status of a seaman. Such broad interpretation in the context of the specific expression in the agreement would in our view,efface the intent of the agreement between the parties. Merely because of the beneficial objective, the clear expression in the agreement must not be ignored to give another meaning which could not have been the intention or the understanding, of the contracting parties. 12. To secure coverage of Clause 5.9.F (ii), the incapacity must relate to injury being suffered whilst in employment.In the present case, the appellant never claimed to have suffered any injury during his ship duty. Moreover, the impaired heart function cannot reasonably be attributed to his nine month engagement. In such circumstances, although the seaman commenced his engagement with a fitness certificate, it would be unreasonable, in our view,to relate the medical condition of the appellantas having causal connection with his sea voyage engagement. 13. In the above context, we have also perused the extracted passage from the article on marine safety and cardiovascular disease of MrDilipan Thomas. According to the author, Cardio-vascular disease is as commonly found in seafaring community as in the general population. Thus, it can at best be a general observation relating to both seamen and people in general and not specific for the seafaring community. 14. Insofar as the other extract relied by the appellants counsel, there is some confusion. This is because the extract was attributed to MrMarkas Ollie Barkarbut a search on the origin of the quoted portion revealed that this was actually lifted from the abstract of the article titled Risk of Cardiovascular Diseases in Seafarers by MrMarcus Oldenburg, in the International Maritime Health,2014. Since the concerned passage was quoted in the High Courts judgment and also relied upon by the appellant, we have examined the context in which it was written. It is then seen that subject of the studyi.e.German seafarers, were only assumed to have slightly increased risk of coronary disease, even though they displayed similar predicated risk as the reference population for comparison.The concerned passagespeaks of job- related cardio risk factors for seafarers. But in the present case no material is produced to correlate the appellants impaired heart function with the 9 month engagement in the ship. In the absence of any connecting link between the job and the medical condition, thedisability compensationin our opinion is not merited. 15. The Clause 21 applies to a case of total disability but this is not a case of 100% disablement.To say it another way, the Dilated Cardiomyopathy condition may prevent the man from performing sea service but the same will not be an impediment for him to perform other jobs. With this interpretation,the High Court held that only severance compensation under Clause 25 is payable for the seaman. We see no reason to reach another conclusion on the implication of Clause 21 andClause 25,for the appellant. 16. The appellants counsel has relied on, Divisional Controller, NEKRTC vs. Sangamma and Ors. 2005 (2) LLN 776, and Mackinnon Mackenzie & Co. Pvt. Ltd. vs. Rita Fernandez 1969 (2) LLJ 812. In these cases, the impairment had occurred in the course of employment. For instance, in Sangammacase, the bus conductor suffered chest pain while on duty and was admitted to the hospital.Howeverin the case in hand, no linkage between the on ship duty and the appellants medical condition, could be established. Thus, the first cited case will be of no assistance to the appellant. 17. In the Rita Fernandez (supra), which related to a seafarers cardiac ailment, the log-book of the ship had recorded entry relating to the employees hospitalization for treatment of cardiac ailment. But in the present case nosuch log entry from the vessel had been produced.In Rita Fernandez judgement, the Court itself had highlighted the need for establishing the causal connection for considering compensation under Section 3 of the Workmen Compensation Act,1923.But in the present case, the appellants medical condition could not be linked to his shortterm engagement.Therefore, the cited ratio is of no assistance for the disability compensation claim. 18. Let us now deal with the appellants argument that his heart ailment should be understood as a disability under the Disability Act and consequential benefits be accorded to him. Section 2(i) of the Act takes into account visual disability, locomotor disability, mental illness,mental retardation, hearing impairment and leprosy. A heart ailment is not covered within the definition of disabilityin the Act and we would hesitate to import words, which the legislature chose not to, in their definition of disability. When the 1995 Act was replaced by the Rights of Persons with Disabilities Act, 2016, a person with disabilities was defined under Section 2(s) as a person with long term physical, mental, intellectual, or sensory impairment which prevent his full and effective participation in society. Section 2(zc) defines, specified disability as those mentioned in the Schedule to the 2016 Act. In the said Schedule, physical disability, intellectual disability, mentalbehaviour, are specified.The dilated Cardiomyopathy conditionof the appellantis neither a specified disability noris the same relatable to the broad spectrum ofimpairments, which hindershis full and effective participation in society. Therefore, we are of the considered opinion that Dilated Cardiomyopathy condition of the appellant does not bring his case within the ambit of either the 1995 Act or of the 2016 Act.The High Court, therefore, was correct in concluding that Dilated Cardiomyopathy condition would not facilitate any benefit to the appellant under Section 47 of the Disability Act. | 0[ds]11. As can be seen from above, 100% compensation is payable to a seaman under Clause 5.9. F (ii) in a situation where a seaman is found medically unfit for sea service, as a result of injury, while in employment. But it is not the case of either side that the appellant had suffered anyaccidental injury in course of his engagement in the sea vessel.Such broad interpretation in the context of the specific expression in the agreement would in our view,efface the intent of the agreement between the parties. Merely because of the beneficial objective, the clear expression in the agreement must not be ignored to give another meaning which could not have been the intention or the understanding, of the contracting parties.12. To secure coverage of Clause 5.9.F (ii), the incapacity must relate to injury being suffered whilst in employment.In the present case, the appellant never claimed to have suffered any injury during his ship duty. Moreover, the impaired heart function cannot reasonably be attributed to his nine month engagement. In such circumstances, although the seaman commenced his engagement with a fitness certificate, it would be unreasonable, in our view,to relate the medical condition of the appellantas having causal connection with his sea voyage engagement.13. In the above context, we have also perused the extracted passage from the article on marine safety and cardiovascular disease of MrDilipan Thomas. According to the author, Cardio-vascular disease is as commonly found in seafaring community as in the general population. Thus, it can at best be a general observation relating to both seamen and people in general and not specific for the seafaring community.14. Insofar as the other extract relied by the appellants counsel, there is some confusion. This is because the extract was attributed to MrMarkas Ollie Barkarbut a search on the origin of the quoted portion revealed that this was actually lifted from the abstract of the article titled Risk of Cardiovascular Diseases in Seafarers by MrMarcus Oldenburg, in the International Maritime Health,2014. Since the concerned passage was quoted in the High Courts judgment and also relied upon by the appellant, we have examined the context in which it was written. It is then seen that subject of the studyi.e.German seafarers, were only assumed to have slightly increased risk of coronary disease, even though they displayed similar predicated risk as the reference population for comparison.The concerned passagespeaks of job- related cardio risk factors for seafarers. But in the present case no material is produced to correlate the appellants impaired heart function with the 9 month engagement in the ship. In the absence of any connecting link between the job and the medical condition, thedisability compensationin our opinion is not merited.15. The Clause 21 applies to a case of total disability but this is not a case of 100% disablement.To say it another way, the Dilated Cardiomyopathy condition may prevent the man from performing sea service but the same will not be an impediment for him to perform other jobs. With this interpretation,the High Court held that only severance compensation under Clause 25 is payable for the seaman. We see no reason to reach another conclusion on the implication of Clause 21 andClause 25,for the appellant.16. The appellants counsel has relied on, Divisional Controller, NEKRTC vs. Sangamma and Ors. 2005 (2) LLN 776, and Mackinnon Mackenzie & Co. Pvt. Ltd. vs. Rita Fernandez 1969 (2) LLJ 812. In these cases, the impairment had occurred in the course of employment. For instance, in Sangammacase, the bus conductor suffered chest pain while on duty and was admitted to the hospital.Howeverin the case in hand, no linkage between the on ship duty and the appellants medical condition, could be established. Thus, the first cited case will be of no assistance to the appellant.17. In the Rita Fernandez (supra), which related to a seafarers cardiac ailment, the log-book of the ship had recorded entry relating to the employees hospitalization for treatment of cardiac ailment. But in the present case nosuch log entry from the vessel had been produced.In Rita Fernandez judgement, the Court itself had highlighted the need for establishing the causal connection for considering compensation under Section 3 of the Workmen Compensation Act,1923.But in the present case, the appellants medical condition could not be linked to his shortterm engagement.Therefore, the cited ratio is of no assistance for the disability compensation claim.Section 2(i) of the Act takes into account visual disability, locomotor disability, mental illness,mental retardation, hearing impairment and leprosy. A heart ailment is not covered within the definition of disabilityin the Act and we would hesitate to import words, which the legislature chose not to, in their definition of disability. When the 1995 Act was replaced by the Rights of Persons with Disabilities Act, 2016, a person with disabilities was defined under Section 2(s) as a person with long term physical, mental, intellectual, or sensory impairment which prevent his full and effective participation in society. Section 2(zc) defines, specified disability as those mentioned in the Schedule to the 2016 Act. In the said Schedule, physical disability, intellectual disability, mentalbehaviour, are specified.The dilated Cardiomyopathy conditionof the appellantis neither a specified disability noris the same relatable to the broad spectrum ofimpairments, which hindershis full and effective participation in society. Therefore, we are of the considered opinion that Dilated Cardiomyopathy condition of the appellant does not bring his case within the ambit of either the 1995 Act or of the 2016 Act.The High Court, therefore, was correct in concluding that Dilated Cardiomyopathy condition would not facilitate any benefit to the appellant under Section 47 of the Disability Act. | 0 | 2,597 | 1,053 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
and Disability Compensation. 11. As can be seen from above, 100% compensation is payable to a seaman under Clause 5.9. F (ii) in a situation where a seaman is found medically unfit for sea service, as a result of injury, while in employment. But it is not the case of either side that the appellant had suffered anyaccidental injury in course of his engagement in the sea vessel. The question then is, whether the term injury, should be construed in the manner suggested by the appellants counsel as anything which diminishes the health status of a seaman. Such broad interpretation in the context of the specific expression in the agreement would in our view,efface the intent of the agreement between the parties. Merely because of the beneficial objective, the clear expression in the agreement must not be ignored to give another meaning which could not have been the intention or the understanding, of the contracting parties. 12. To secure coverage of Clause 5.9.F (ii), the incapacity must relate to injury being suffered whilst in employment.In the present case, the appellant never claimed to have suffered any injury during his ship duty. Moreover, the impaired heart function cannot reasonably be attributed to his nine month engagement. In such circumstances, although the seaman commenced his engagement with a fitness certificate, it would be unreasonable, in our view,to relate the medical condition of the appellantas having causal connection with his sea voyage engagement. 13. In the above context, we have also perused the extracted passage from the article on marine safety and cardiovascular disease of MrDilipan Thomas. According to the author, Cardio-vascular disease is as commonly found in seafaring community as in the general population. Thus, it can at best be a general observation relating to both seamen and people in general and not specific for the seafaring community. 14. Insofar as the other extract relied by the appellants counsel, there is some confusion. This is because the extract was attributed to MrMarkas Ollie Barkarbut a search on the origin of the quoted portion revealed that this was actually lifted from the abstract of the article titled Risk of Cardiovascular Diseases in Seafarers by MrMarcus Oldenburg, in the International Maritime Health,2014. Since the concerned passage was quoted in the High Courts judgment and also relied upon by the appellant, we have examined the context in which it was written. It is then seen that subject of the studyi.e.German seafarers, were only assumed to have slightly increased risk of coronary disease, even though they displayed similar predicated risk as the reference population for comparison.The concerned passagespeaks of job- related cardio risk factors for seafarers. But in the present case no material is produced to correlate the appellants impaired heart function with the 9 month engagement in the ship. In the absence of any connecting link between the job and the medical condition, thedisability compensationin our opinion is not merited. 15. The Clause 21 applies to a case of total disability but this is not a case of 100% disablement.To say it another way, the Dilated Cardiomyopathy condition may prevent the man from performing sea service but the same will not be an impediment for him to perform other jobs. With this interpretation,the High Court held that only severance compensation under Clause 25 is payable for the seaman. We see no reason to reach another conclusion on the implication of Clause 21 andClause 25,for the appellant. 16. The appellants counsel has relied on, Divisional Controller, NEKRTC vs. Sangamma and Ors. 2005 (2) LLN 776, and Mackinnon Mackenzie & Co. Pvt. Ltd. vs. Rita Fernandez 1969 (2) LLJ 812. In these cases, the impairment had occurred in the course of employment. For instance, in Sangammacase, the bus conductor suffered chest pain while on duty and was admitted to the hospital.Howeverin the case in hand, no linkage between the on ship duty and the appellants medical condition, could be established. Thus, the first cited case will be of no assistance to the appellant. 17. In the Rita Fernandez (supra), which related to a seafarers cardiac ailment, the log-book of the ship had recorded entry relating to the employees hospitalization for treatment of cardiac ailment. But in the present case nosuch log entry from the vessel had been produced.In Rita Fernandez judgement, the Court itself had highlighted the need for establishing the causal connection for considering compensation under Section 3 of the Workmen Compensation Act,1923.But in the present case, the appellants medical condition could not be linked to his shortterm engagement.Therefore, the cited ratio is of no assistance for the disability compensation claim. 18. Let us now deal with the appellants argument that his heart ailment should be understood as a disability under the Disability Act and consequential benefits be accorded to him. Section 2(i) of the Act takes into account visual disability, locomotor disability, mental illness,mental retardation, hearing impairment and leprosy. A heart ailment is not covered within the definition of disabilityin the Act and we would hesitate to import words, which the legislature chose not to, in their definition of disability. When the 1995 Act was replaced by the Rights of Persons with Disabilities Act, 2016, a person with disabilities was defined under Section 2(s) as a person with long term physical, mental, intellectual, or sensory impairment which prevent his full and effective participation in society. Section 2(zc) defines, specified disability as those mentioned in the Schedule to the 2016 Act. In the said Schedule, physical disability, intellectual disability, mentalbehaviour, are specified.The dilated Cardiomyopathy conditionof the appellantis neither a specified disability noris the same relatable to the broad spectrum ofimpairments, which hindershis full and effective participation in society. Therefore, we are of the considered opinion that Dilated Cardiomyopathy condition of the appellant does not bring his case within the ambit of either the 1995 Act or of the 2016 Act.The High Court, therefore, was correct in concluding that Dilated Cardiomyopathy condition would not facilitate any benefit to the appellant under Section 47 of the Disability Act.
### Response:
0
### Explanation:
11. As can be seen from above, 100% compensation is payable to a seaman under Clause 5.9. F (ii) in a situation where a seaman is found medically unfit for sea service, as a result of injury, while in employment. But it is not the case of either side that the appellant had suffered anyaccidental injury in course of his engagement in the sea vessel.Such broad interpretation in the context of the specific expression in the agreement would in our view,efface the intent of the agreement between the parties. Merely because of the beneficial objective, the clear expression in the agreement must not be ignored to give another meaning which could not have been the intention or the understanding, of the contracting parties.12. To secure coverage of Clause 5.9.F (ii), the incapacity must relate to injury being suffered whilst in employment.In the present case, the appellant never claimed to have suffered any injury during his ship duty. Moreover, the impaired heart function cannot reasonably be attributed to his nine month engagement. In such circumstances, although the seaman commenced his engagement with a fitness certificate, it would be unreasonable, in our view,to relate the medical condition of the appellantas having causal connection with his sea voyage engagement.13. In the above context, we have also perused the extracted passage from the article on marine safety and cardiovascular disease of MrDilipan Thomas. According to the author, Cardio-vascular disease is as commonly found in seafaring community as in the general population. Thus, it can at best be a general observation relating to both seamen and people in general and not specific for the seafaring community.14. Insofar as the other extract relied by the appellants counsel, there is some confusion. This is because the extract was attributed to MrMarkas Ollie Barkarbut a search on the origin of the quoted portion revealed that this was actually lifted from the abstract of the article titled Risk of Cardiovascular Diseases in Seafarers by MrMarcus Oldenburg, in the International Maritime Health,2014. Since the concerned passage was quoted in the High Courts judgment and also relied upon by the appellant, we have examined the context in which it was written. It is then seen that subject of the studyi.e.German seafarers, were only assumed to have slightly increased risk of coronary disease, even though they displayed similar predicated risk as the reference population for comparison.The concerned passagespeaks of job- related cardio risk factors for seafarers. But in the present case no material is produced to correlate the appellants impaired heart function with the 9 month engagement in the ship. In the absence of any connecting link between the job and the medical condition, thedisability compensationin our opinion is not merited.15. The Clause 21 applies to a case of total disability but this is not a case of 100% disablement.To say it another way, the Dilated Cardiomyopathy condition may prevent the man from performing sea service but the same will not be an impediment for him to perform other jobs. With this interpretation,the High Court held that only severance compensation under Clause 25 is payable for the seaman. We see no reason to reach another conclusion on the implication of Clause 21 andClause 25,for the appellant.16. The appellants counsel has relied on, Divisional Controller, NEKRTC vs. Sangamma and Ors. 2005 (2) LLN 776, and Mackinnon Mackenzie & Co. Pvt. Ltd. vs. Rita Fernandez 1969 (2) LLJ 812. In these cases, the impairment had occurred in the course of employment. For instance, in Sangammacase, the bus conductor suffered chest pain while on duty and was admitted to the hospital.Howeverin the case in hand, no linkage between the on ship duty and the appellants medical condition, could be established. Thus, the first cited case will be of no assistance to the appellant.17. In the Rita Fernandez (supra), which related to a seafarers cardiac ailment, the log-book of the ship had recorded entry relating to the employees hospitalization for treatment of cardiac ailment. But in the present case nosuch log entry from the vessel had been produced.In Rita Fernandez judgement, the Court itself had highlighted the need for establishing the causal connection for considering compensation under Section 3 of the Workmen Compensation Act,1923.But in the present case, the appellants medical condition could not be linked to his shortterm engagement.Therefore, the cited ratio is of no assistance for the disability compensation claim.Section 2(i) of the Act takes into account visual disability, locomotor disability, mental illness,mental retardation, hearing impairment and leprosy. A heart ailment is not covered within the definition of disabilityin the Act and we would hesitate to import words, which the legislature chose not to, in their definition of disability. When the 1995 Act was replaced by the Rights of Persons with Disabilities Act, 2016, a person with disabilities was defined under Section 2(s) as a person with long term physical, mental, intellectual, or sensory impairment which prevent his full and effective participation in society. Section 2(zc) defines, specified disability as those mentioned in the Schedule to the 2016 Act. In the said Schedule, physical disability, intellectual disability, mentalbehaviour, are specified.The dilated Cardiomyopathy conditionof the appellantis neither a specified disability noris the same relatable to the broad spectrum ofimpairments, which hindershis full and effective participation in society. Therefore, we are of the considered opinion that Dilated Cardiomyopathy condition of the appellant does not bring his case within the ambit of either the 1995 Act or of the 2016 Act.The High Court, therefore, was correct in concluding that Dilated Cardiomyopathy condition would not facilitate any benefit to the appellant under Section 47 of the Disability Act.
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M/s. Nalanda Ceramic & Industries Ltd Vs. M/s. N.S. Choudhury & Co. (P) Ltd | CHANDRACHUD, J.1. On September 26, 1973 the appellants and respondents entered into an agreement at Ranchi under which the latter agreed to construct the appellants factory at Getaulsud, Ranchi. That contract contained a clause providing that if any dispute or differences arose out of or in connection with the contract, the same shall be referred to an arbitrator. The contract was terminated on March 19, 1975 by another agreement which was entered into at Calcutta. Thereafter on December 30, 1975 the parties agreed to refer their differences to the arbitration of one A. K. Sen, a consulting engineer. This agreement was entered into within the Ordinary Original Civil Jurisdiction of the Calcutta High Court. On April 19, 1976 the arbitrator made an award under which the appellants became liable to pay to the respondent a sum of Rs. 6, 56, 740.2. On May 1, 1976 the appellants filed an application under Section 33 of the Arbitration Act in the Court of the learned Subordinate Judge, Patna, challenging the existence, legality and validity of the agreement dated September 26, 1973, which was entered into at Ranchi.3. The award, which the arbitrator made on April 9, 1976 was filed in the Calcutta High Court on May 7, 1976 whereupon, the appellants filed an application in the High Court praying that the award be taken off the file or in the alternative that an injunction be issued restraining the parties from taking any steps in regard to matters arising out of the award.4. Two questions appear to have been argued before the Calcutta High Court in the petition filed by the appellants. The first of these can be disposed of with a self-evident answer. That question relates to the jurisdiction of the Calcutta High Court to entertain the proceedings arising out of the filing of the award by the Arbitrator. The award was made in pursuance of an agreement dated December 30, 1975 which was entered into by the parties in Calcutta. There can, therefore, be no doubt that the High Court of Calcutta has jurisdiction to entertain the present proceedings arising out of the filing of the award before it. In fact the judgment of the High Court shows that eventually the appellants Counsel conceded that the High Court had jurisdiction to entertain the proceedings.5. The other question which requires consideration is whether by reason of the provisions contained in Section 31(4) of the Arbitration Act, the Calcutta High Court can proceed with the matter arising out of the filing of the award Section 31(2) of the Arbitration Act provides, in so far as is relevant, that all questions regarding the validity, effect or existence of an arbitration agreement shall be decided by the court in which the award may be filed and by no other Court. The relevant part of sub-section (4) of that section says that where in any reference, any application under the Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and that such proceedings shall not be taken in any other Court. It is urged on behalf of the appellants by Mr. Mukherji that since an application under Section 31(2) has already been filed by the appellants in the Court of the learned Subordinate Judge, Patna no further proceedings can be taken in the High Court of Calcutta by reason of the injunction contained in Section 31(4). The short answer to this contention is that the application filed by the appellants in the Patna Court relates expressly to the agreement of September 26, 1973 and not to the agreement of December 30, 1975 in pursuance of which the award has been made. In other words, whereas the application in the Patna Court arises out of the agreement of 1973 the present proceedings in the Calcutta High Court arise out of the agreement of 1975. The subject- matter of the two proceedings being different, Section 31(4) can have no application and the Calcutta High Court in therefore competent to proceed with the matter before it. | 0[ds]4. Two questions appear to have been argued before the Calcutta High Court in the petition filed by the appellants. The first of these can be disposed of with aanswer. That question relates to the jurisdiction of the Calcutta High Court to entertain the proceedings arising out of the filing of the award by the Arbitrator. The award was made in pursuance of an agreement dated December 30, 1975 which was entered into by the parties in Calcutta. There can, therefore, be no doubt that the High Court of Calcutta has jurisdiction to entertain the present proceedings arising out of the filing of the award before it. In fact the judgment of the High Court shows that eventually the appellants Counsel conceded that the High Court had jurisdiction to entertain therelevant part of(4) of that section says that where in any reference, any application under the Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and that such proceedings shall not be taken in any other Court. It is urged on behalf of the appellants by Mr. Mukherji that since an application under Section 31(2) has already been filed by the appellants in the Court of the learned Subordinate Judge, Patna no further proceedings can be taken in the High Court of Calcutta by reason of the injunction contained in Section 31(4). The short answer to this contention is that the application filed by the appellants in the Patna Court relates expressly to the agreement of September 26, 1973 and not to the agreement of December 30, 1975 in pursuance of which the award has been made. In other words, whereas the application in the Patna Court arises out of the agreement of 1973 the present proceedings in the Calcutta High Court arise out of the agreement of 1975. The subjectmatter of the two proceedings being different, Section 31(4) can have no application and the Calcutta High Court in therefore competent to proceed with the matter before it. | 0 | 752 | 377 | ### 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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CHANDRACHUD, J.1. On September 26, 1973 the appellants and respondents entered into an agreement at Ranchi under which the latter agreed to construct the appellants factory at Getaulsud, Ranchi. That contract contained a clause providing that if any dispute or differences arose out of or in connection with the contract, the same shall be referred to an arbitrator. The contract was terminated on March 19, 1975 by another agreement which was entered into at Calcutta. Thereafter on December 30, 1975 the parties agreed to refer their differences to the arbitration of one A. K. Sen, a consulting engineer. This agreement was entered into within the Ordinary Original Civil Jurisdiction of the Calcutta High Court. On April 19, 1976 the arbitrator made an award under which the appellants became liable to pay to the respondent a sum of Rs. 6, 56, 740.2. On May 1, 1976 the appellants filed an application under Section 33 of the Arbitration Act in the Court of the learned Subordinate Judge, Patna, challenging the existence, legality and validity of the agreement dated September 26, 1973, which was entered into at Ranchi.3. The award, which the arbitrator made on April 9, 1976 was filed in the Calcutta High Court on May 7, 1976 whereupon, the appellants filed an application in the High Court praying that the award be taken off the file or in the alternative that an injunction be issued restraining the parties from taking any steps in regard to matters arising out of the award.4. Two questions appear to have been argued before the Calcutta High Court in the petition filed by the appellants. The first of these can be disposed of with a self-evident answer. That question relates to the jurisdiction of the Calcutta High Court to entertain the proceedings arising out of the filing of the award by the Arbitrator. The award was made in pursuance of an agreement dated December 30, 1975 which was entered into by the parties in Calcutta. There can, therefore, be no doubt that the High Court of Calcutta has jurisdiction to entertain the present proceedings arising out of the filing of the award before it. In fact the judgment of the High Court shows that eventually the appellants Counsel conceded that the High Court had jurisdiction to entertain the proceedings.5. The other question which requires consideration is whether by reason of the provisions contained in Section 31(4) of the Arbitration Act, the Calcutta High Court can proceed with the matter arising out of the filing of the award Section 31(2) of the Arbitration Act provides, in so far as is relevant, that all questions regarding the validity, effect or existence of an arbitration agreement shall be decided by the court in which the award may be filed and by no other Court. The relevant part of sub-section (4) of that section says that where in any reference, any application under the Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and that such proceedings shall not be taken in any other Court. It is urged on behalf of the appellants by Mr. Mukherji that since an application under Section 31(2) has already been filed by the appellants in the Court of the learned Subordinate Judge, Patna no further proceedings can be taken in the High Court of Calcutta by reason of the injunction contained in Section 31(4). The short answer to this contention is that the application filed by the appellants in the Patna Court relates expressly to the agreement of September 26, 1973 and not to the agreement of December 30, 1975 in pursuance of which the award has been made. In other words, whereas the application in the Patna Court arises out of the agreement of 1973 the present proceedings in the Calcutta High Court arise out of the agreement of 1975. The subject- matter of the two proceedings being different, Section 31(4) can have no application and the Calcutta High Court in therefore competent to proceed with the matter before it.
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0
### Explanation:
4. Two questions appear to have been argued before the Calcutta High Court in the petition filed by the appellants. The first of these can be disposed of with aanswer. That question relates to the jurisdiction of the Calcutta High Court to entertain the proceedings arising out of the filing of the award by the Arbitrator. The award was made in pursuance of an agreement dated December 30, 1975 which was entered into by the parties in Calcutta. There can, therefore, be no doubt that the High Court of Calcutta has jurisdiction to entertain the present proceedings arising out of the filing of the award before it. In fact the judgment of the High Court shows that eventually the appellants Counsel conceded that the High Court had jurisdiction to entertain therelevant part of(4) of that section says that where in any reference, any application under the Act has been made in a Court competent to entertain it, that Court alone shall have jurisdiction over the arbitration proceedings and that such proceedings shall not be taken in any other Court. It is urged on behalf of the appellants by Mr. Mukherji that since an application under Section 31(2) has already been filed by the appellants in the Court of the learned Subordinate Judge, Patna no further proceedings can be taken in the High Court of Calcutta by reason of the injunction contained in Section 31(4). The short answer to this contention is that the application filed by the appellants in the Patna Court relates expressly to the agreement of September 26, 1973 and not to the agreement of December 30, 1975 in pursuance of which the award has been made. In other words, whereas the application in the Patna Court arises out of the agreement of 1973 the present proceedings in the Calcutta High Court arise out of the agreement of 1975. The subjectmatter of the two proceedings being different, Section 31(4) can have no application and the Calcutta High Court in therefore competent to proceed with the matter before it.
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Brihanmumbai Mahanagarpalika Vs. Willingdon Sports Club | regulating the places for use of hotels, eating houses, tea or coffee shops and restaurants within the Municipal Borough and in Part I, which contains definitions, "catering establishment" has been defined as meaning any place used for the business of sale of any article of food or drink for consumption on the premises and including hotel, eating house, tea or coffee shop or restaurant, pan bidi shops and sugarcane juice shop. This definition would clearly show that a catering establishment means any place used for the business of sale of articles of food or drink and as pointed out by the Supreme Court in State of Bombay v. Hospital Mazdoor (1960) 62 Bom. L.R. 558:...trade according to Halsbury, in its primary meaning, is exchange of goods for goods or goods for money, and in its secondary meaning it is any business carried on -with a view to profit whether manual or mercantile, as distinguished from the liberal arts or learned professions and from agriculture; whereas business is a wider term not synonymous with trade and means practically anything which is an occupation as distinguished from a pleasure.It would thus be seen that the concept of earning profits is not a necessary appurtenant of the expression "business" and looked at from this point of view, a place used for the business of sale of any article of food or drink does not cease to be so merely because it is not being conducted with a view to earn profits. Anyway, the definition contained in the rules and by-laws of the Borough Municipality is an inclusive definition. After saying that a catering establishment means any place used for the business of sale of any article of food or drink for consumption, it further goes on to say that it includes a hotel or an eating house, etc. and in the same Supreme Court decision, to which a reference has already been made, it has been pointed out that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. Where the Courts are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation. Therefore, having regard to the inclusive definition in this case, it is clear that the definition of "catering establishment" does mean and include a cooperative canteen conducted without any motive of earning profits.If the object and scope of the rules and by-laws framed by the Borough Municipality are examined, there can be no difficulty in holding that a catering establishment does include any canteen, whether conducted for the purpose of earning profits or not. If we examine the rules and by-laws, it is clear that the object with which they have been framed is to promote and preserve sanitation and public health and to prevent the spread of disease within the municipal limits and if that was the object, it is difficult to see how canteens conducted on no loss and no profit basis could be excluded from the definition of a "catering establishment". It is as much necessary to preserve cleanliness, and public health in commercial establishments as in the establishments conducted by co-operative societies like the one in this case. In this connection, the following passage appearing at pages 58 and 59 of Maxwell on the Interpretation of Statutes, 1962 edn., may be quoted with advantage:It is in the interpretation of general words and phrases that the principle of strictly adapting the meaning to the particular subject-matter with reference to which the words are used finds its most frequent application. However wide in the abstract, they are more or less elastic and admit of restriction or expansion to suit the subject-matter. While expressing truly enough all that the legislature intended, they frequently express more in their literal meaning and natural force; and it is necessary to give them the meaning which best suits the scope and object of the statute without extending to ground foreign to the intention. It is, therefore, a canon of interpretation that all words, if they be general and not express and precise, are to be restricted to the fitness of the matter. They are to be construed as particular if the intention be particular; that is, they must be understood as used with reference to the subject- matter in the mind of the legislature, and limited to it.” (emphasis supplied) 25. In Balkrishna Karkera v. K.J. Mishra and another AIR 1979 (Bombay) 198, learned Single Judge interpreted Section 394(1)(e)(i) read with Section 471 of the Act and observed: “Now it is pertinent to note that although the expression "eating house" has been defined under the Bombay Municipal Corporation Act, the expression "catering establishment" has not been defined. It is true that the staff canteen run by Accused No. 2 was not open to the members of the public at large and the admission was restricted solely to the employees of the said Company. To that extent Mr. Shrikrishna would be justified in his submission that the staff canteen could not be termed as an "eating house." However, what is significant is the fact that Accused No. 2 has not been charged with carrying on an "eating house" but he has been charged for carrying on a catering establishment. "Catering establishment" is an expression which is wider in its connotation than the expression "eating house" and whether a staff canteen was open to the public or restricted only to a section of the public, it would still fall within the definition of a "catering establishment". 26. In our view, the aforesaid judgments of the Bombay High Court lay down correct law and ratio thereof deserves to be applied for interpreting Section 394 (1) (e) read with Part IV of Schedule ‘M’ of the Act.27. As a sequel to the above discussion, we hold that the Bombay High Court was not right in relieving the respondents of the obligation to take licence under Section 394(1)(e) of the Act. | 1[ds]25. In Balkrishna Karkera v. K.J. Mishra and another AIR 1979 (Bombay) 198, learned Single Judge interpreted Section 394(1)(e)(i) read with Section 471 of the Act andit is pertinent to note that although the expression "eating house" has been defined under the Bombay Municipal Corporation Act, the expression "catering establishment" has not been defined. It is true that the staff canteen run by Accused No. 2 was not open to the members of the public at large and the admission was restricted solely to the employees of the said Company. To that extent Mr. Shrikrishna would be justified in his submission that the staff canteen could not be termed as an "eating house." However, what is significant is the fact that Accused No. 2 has not been charged with carrying on an "eating house" but he has been charged for carrying on a catering establishment. "Catering establishment" is an expression which is wider in its connotation than the expression "eating house" and whether a staff canteen was open to the public or restricted only to a section of the public, it would still fall within the definition of a "catering establishment".In our view, the aforesaid judgments of the Bombay High Court lay down correct law and ratio thereof deserves to be applied for interpreting Section 394 (1) (e) read with Part IV of Scheduleof the Act.27. As a sequel to the above discussion, we hold that the Bombay High Court was not right in relieving the respondents of the obligation to take licence under Section 394(1)(e) of the | 1 | 8,792 | 313 | ### Instruction:
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regulating the places for use of hotels, eating houses, tea or coffee shops and restaurants within the Municipal Borough and in Part I, which contains definitions, "catering establishment" has been defined as meaning any place used for the business of sale of any article of food or drink for consumption on the premises and including hotel, eating house, tea or coffee shop or restaurant, pan bidi shops and sugarcane juice shop. This definition would clearly show that a catering establishment means any place used for the business of sale of articles of food or drink and as pointed out by the Supreme Court in State of Bombay v. Hospital Mazdoor (1960) 62 Bom. L.R. 558:...trade according to Halsbury, in its primary meaning, is exchange of goods for goods or goods for money, and in its secondary meaning it is any business carried on -with a view to profit whether manual or mercantile, as distinguished from the liberal arts or learned professions and from agriculture; whereas business is a wider term not synonymous with trade and means practically anything which is an occupation as distinguished from a pleasure.It would thus be seen that the concept of earning profits is not a necessary appurtenant of the expression "business" and looked at from this point of view, a place used for the business of sale of any article of food or drink does not cease to be so merely because it is not being conducted with a view to earn profits. Anyway, the definition contained in the rules and by-laws of the Borough Municipality is an inclusive definition. After saying that a catering establishment means any place used for the business of sale of any article of food or drink for consumption, it further goes on to say that it includes a hotel or an eating house, etc. and in the same Supreme Court decision, to which a reference has already been made, it has been pointed out that the words used in an inclusive definition denote extension and cannot be treated as restricted in any sense. Where the Courts are dealing with an inclusive definition it would be inappropriate to put a restrictive interpretation upon terms of wider denotation. Therefore, having regard to the inclusive definition in this case, it is clear that the definition of "catering establishment" does mean and include a cooperative canteen conducted without any motive of earning profits.If the object and scope of the rules and by-laws framed by the Borough Municipality are examined, there can be no difficulty in holding that a catering establishment does include any canteen, whether conducted for the purpose of earning profits or not. If we examine the rules and by-laws, it is clear that the object with which they have been framed is to promote and preserve sanitation and public health and to prevent the spread of disease within the municipal limits and if that was the object, it is difficult to see how canteens conducted on no loss and no profit basis could be excluded from the definition of a "catering establishment". It is as much necessary to preserve cleanliness, and public health in commercial establishments as in the establishments conducted by co-operative societies like the one in this case. In this connection, the following passage appearing at pages 58 and 59 of Maxwell on the Interpretation of Statutes, 1962 edn., may be quoted with advantage:It is in the interpretation of general words and phrases that the principle of strictly adapting the meaning to the particular subject-matter with reference to which the words are used finds its most frequent application. However wide in the abstract, they are more or less elastic and admit of restriction or expansion to suit the subject-matter. While expressing truly enough all that the legislature intended, they frequently express more in their literal meaning and natural force; and it is necessary to give them the meaning which best suits the scope and object of the statute without extending to ground foreign to the intention. It is, therefore, a canon of interpretation that all words, if they be general and not express and precise, are to be restricted to the fitness of the matter. They are to be construed as particular if the intention be particular; that is, they must be understood as used with reference to the subject- matter in the mind of the legislature, and limited to it.” (emphasis supplied) 25. In Balkrishna Karkera v. K.J. Mishra and another AIR 1979 (Bombay) 198, learned Single Judge interpreted Section 394(1)(e)(i) read with Section 471 of the Act and observed: “Now it is pertinent to note that although the expression "eating house" has been defined under the Bombay Municipal Corporation Act, the expression "catering establishment" has not been defined. It is true that the staff canteen run by Accused No. 2 was not open to the members of the public at large and the admission was restricted solely to the employees of the said Company. To that extent Mr. Shrikrishna would be justified in his submission that the staff canteen could not be termed as an "eating house." However, what is significant is the fact that Accused No. 2 has not been charged with carrying on an "eating house" but he has been charged for carrying on a catering establishment. "Catering establishment" is an expression which is wider in its connotation than the expression "eating house" and whether a staff canteen was open to the public or restricted only to a section of the public, it would still fall within the definition of a "catering establishment". 26. In our view, the aforesaid judgments of the Bombay High Court lay down correct law and ratio thereof deserves to be applied for interpreting Section 394 (1) (e) read with Part IV of Schedule ‘M’ of the Act.27. As a sequel to the above discussion, we hold that the Bombay High Court was not right in relieving the respondents of the obligation to take licence under Section 394(1)(e) of the Act.
### Response:
1
### Explanation:
25. In Balkrishna Karkera v. K.J. Mishra and another AIR 1979 (Bombay) 198, learned Single Judge interpreted Section 394(1)(e)(i) read with Section 471 of the Act andit is pertinent to note that although the expression "eating house" has been defined under the Bombay Municipal Corporation Act, the expression "catering establishment" has not been defined. It is true that the staff canteen run by Accused No. 2 was not open to the members of the public at large and the admission was restricted solely to the employees of the said Company. To that extent Mr. Shrikrishna would be justified in his submission that the staff canteen could not be termed as an "eating house." However, what is significant is the fact that Accused No. 2 has not been charged with carrying on an "eating house" but he has been charged for carrying on a catering establishment. "Catering establishment" is an expression which is wider in its connotation than the expression "eating house" and whether a staff canteen was open to the public or restricted only to a section of the public, it would still fall within the definition of a "catering establishment".In our view, the aforesaid judgments of the Bombay High Court lay down correct law and ratio thereof deserves to be applied for interpreting Section 394 (1) (e) read with Part IV of Scheduleof the Act.27. As a sequel to the above discussion, we hold that the Bombay High Court was not right in relieving the respondents of the obligation to take licence under Section 394(1)(e) of the
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M/S. Zoraster And Co Vs. The Commissioner Of Income Tax, Delhi, Ajmer, Rajasthan A | Concessions Order applied to the assessee, a matter not touched by the Tribunal. Thus, though the result is the same so far as the assessment is concerned, the grounds of decision are entirely different...... ...... .... ...... .....Section 66 of the Income-tax Act which confers jurisdiction upon the High Court only permits a reference of a question of law arising out of the order of the Tribunal. It does not confer jurisdiction on the High Court to decide a different question of law not arising out of such order. It is possible that the same question of law may involve different approaches for its solution, and the High Court may amplify the question to take in all the approaches. But the question must still be the one which was before the Tribunal and was decided by it. It must not be an entirely different question which the Tribunal never considered.14. It follows from this that the enquiry in such cases must be to see whether the question decided by the Tribunal admits the consideration of the new point as an integral or even an incidental part thereto. Even so, the supplemental statement which the Tribunal is directed to submit must arise from the facts admitted and/or found by the Tribunal, and should not open the door to fresh evidence. The fact that in Ogale Glass Works case, I. T. Ref. No. 19 of 1949, D/- 17-9-1951 (Bom), the Bombay High Court had asked for a supplemental statement in the same way as in the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ), and this Court did not rule out the new matter, cannot help the assessee in the present cases because the jurisdiction of the High Court was not questioned, as it had been done in the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ), or has been done here. We have thus to see whether in this case the question which was decided and which has been referred to the High Court admits the return of the case for a supplemental statement on the lines indicated by the High Court in the order under appeal.15. At the very start, one notices a difference in the question of law in this case and the Ogale Glass Works case, 1955-1 SCR 185 : (AIR 1954 SC 429 ), on the one hand, and the question of law in the Jehangir Vakil Mills case 1960-1 SCR 249 : (AIR 1959 SC 1177 ), on the other. In the former two cases, the question is very wide, while in the latter it is extremely narrow. This can be seen by placing the three questions side by side as below:Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ): "Whether the receipt of the cheques in Bhavnagar amounted to receipt of the sale proceeds in Bhavnagar?Ogale Glass Works case, 1955-1 SCR 185 : (AIR 1954 SC 429 ): "Whether on the facts of the case, income, profits and gains in respect of sales made to the Government of India was received in British India within the meaning of Sec. 4(1)(a) of the Act?"This case: "Whether on the facts and circumstances of the case the profits and gains in respect of the sales made to the Government of India were received by the assessee in taxable territories?16. It is thus quite plain that the question as framed in this case can include an enquiry into whether there was any request, express or implied, that the amount of the bills be paid by cheques so as to bring the matter within the dicta of this Court in the Ogale Glass Works case, 1955-1 SCR 185 : (AIR 1954 SC 429 ), or Jagdish Mills case, 1960-1 SCR 236 : (AIR 1959 SC 1160 ).The first limit to the jurisdiction of the High Court as laid down by this Court is thus not exceeded by the High Court in exercising its powers under S. 66(4) of the Income-tax Act. The question is wide enough to include the alternative line of approach that if there was a request, express or implied, to send the amount due under the bills by cheque, the post office would be the agent of the assessee, and the income was received in the taxable when the cheques were posted.16-a. The next question is whether the High Court has transgressed the second limitation implicit in S. 66(4), that is to say, that the question must arise out of the facts admitted and/or found by the Tribunal. The High Court has observed that,".....it would be necessary for the Appellate Tribunal to find inter alia whether the cheques were sent to the assessee-firm by post or by hand and what directions, if any, had the assessee-firm given to the Department in that matter.If the Tribunal has to make a fresh enquiry leading to the admission of fresh evidence on the record, then this direction offends against the ruling of this Court in the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ). If, however, the direction be interpreted to mean that the Tribunal in giving the finding must confine itself to the facts admitted and/or found by it, the direction cannot be described as in excess of the jurisdiction of the High Court. It would have been better if the High Court had given direction confined to the record of the case before the Tribunal; but, in the absence of anything expressly to the contrary, we cannot hold that the direction would lead inevitably to the admitting of fresh evidence. This, at least, now cannot be done, since the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ), has prohibited the admission of fresh evidence. In our opinion, the present case does not fall within the rule in the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ), and is distinguishable. | 0[ds]8. Jagdish Mills case, 1960-1 SCR 236 : (AIR 1959 SC 1160 ) and the New Jehangir Vakil Mills case 1960-1 SCR 249 : (AIR 1959 SC 1177 ) were decided by this Court on the same day. In the latter case, the Department had to deal with a non-resident Company which, at all material times, was situate at Bhavnagar, one of the Indian States. Cheques in payment for supplies to Government were sent from British India to Bhavnagar. The Department contended in the case that though the cheques were received at Bhavnagar, they were, in fact, cashed in British India and until such encashment, income could not be said to have been received but that on encashment in British India, the receipt of income was also in British India. The Tribunal held that the cheques having been received at Bhavnagar the income was also received there. In doing so, the Tribunal followed the Bombay decision in Kirloskar Brothers case, 1952-21 ITR 82 : (AIR 1952 Bom 306 ). The Tribunal, however, observed that if the Bombay view which was then under appeal to this Court were not upheld, then an enquiry would have to be made as to whether the Mills bankers at Ahmedabad acted as the Mills agents for collecting the amount due on the cheques. The question whether the posting of the cheques from British India to Bhavnagar at the request, express or implied, of the Mills or otherwise, made any difference was not considered at any stage before the case reached the High Court of Bombay.The reference was held back by the Tribunal till the decision of this Court in Ogale Glass Works case, 1955-1 SCR 185 : (AIR 1954 SC 429 ) and Kirloskar Brothers case, 1954-25 ITR 547 : (AIR 1954 SC 504 ). Even after seeing that in those two cases the request for payment by cheques to be sent by post made all the difference, the Tribunal did not frame its statement of the case or the question to include this aspect, because that aspect of the matter was never considered before. The question referred was thus limited to the legal effect of the receipt of the cheques at Bhavnagar without advertence to the fact whether the cheques were so sent by post at the request, express or implied, of the Mills.the question as framed and the statement which accompanied it brought into controversy the only point till then considered by the Tribunal and the taxing authorities. When the case was heard by it, the High Court desired to consider it from the angle of the Kirloskar Brothers. 1952-21 ITR 82 : (AIR 1952 Bom 306 ) and Ogale Glass works, 1955-1 SCR 185 : (AIR 1954 SC 429 ) cases. It called for a supplemental statement of the case. In doing so, the High Court went beyond the ambit of the controversy as it had existed till then and also the statement of the case and the question.It was also pointed out that the facts admitted and or found by the Tribunal could alone be the foundation of the question of law which might be said to arise out of the Tribunals order. The case thus set two limits to the jurisdiction of the High Court under S. 66(4), and they were that the advisory jurisdiction was confined (a) to the facts on the record and/or found by the Tribunal and (b) the question which would arise from the Tribunals order. It was pointed out by this Court that it was not open to the High Court to order a fresh enquiry into new facts with a view to amplifying the record and further that it was equally not open to the High Court to decide a question of law, which did not arise out of the Tribunals order. This was illustrated by comparing the question as framed by the Tribunal with the question which the High Court desired to decide.It follows from this that the enquiry in such cases must be to see whether the question decided by the Tribunal admits the consideration of the new point as an integral or even an incidental part thereto. Even so, the supplemental statement which the Tribunal is directed to submit must arise from the facts admitted and/or found by the Tribunal, and should not open the door to fresh evidence. The fact that in Ogale Glass Works case, I. T. Ref. No. 19 of 1949, D/- 17-9-1951 (Bom), the Bombay High Court had asked for a supplemental statement in the same way as in the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ), and this Court did not rule out the new matter, cannot help the assessee in the present cases because the jurisdiction of the High Court was not questioned, as it had been done in the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ), or has been done here. We have thus to see whether in this case the question which was decided and which has been referred to the High Court admits the return of the case for a supplemental statement on the lines indicated by the High Court in the order under appeal.It is thus quite plain that the question as framed in this case can include an enquiry into whether there was any request, express or implied, that the amount of the bills be paid by cheques so as to bring the matter within the dicta of this Court in the Ogale Glass Works case, 1955-1 SCR 185 : (AIR 1954 SC 429 ), or Jagdish Mills case, 1960-1 SCR 236 : (AIR 1959 SC 1160 ).The first limit to the jurisdiction of the High Court as laid down by this Court is thus not exceeded by the High Court in exercising its powers under S. 66(4) of the Income-tax Act. The question is wide enough to include the alternative line of approach that if there was a request, express or implied, to send the amount due under the bills by cheque, the post office would be the agent of the assessee, and the income was received in the taxable when the cheques were posted. | 0 | 3,923 | 1,140 | ### 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:
Concessions Order applied to the assessee, a matter not touched by the Tribunal. Thus, though the result is the same so far as the assessment is concerned, the grounds of decision are entirely different...... ...... .... ...... .....Section 66 of the Income-tax Act which confers jurisdiction upon the High Court only permits a reference of a question of law arising out of the order of the Tribunal. It does not confer jurisdiction on the High Court to decide a different question of law not arising out of such order. It is possible that the same question of law may involve different approaches for its solution, and the High Court may amplify the question to take in all the approaches. But the question must still be the one which was before the Tribunal and was decided by it. It must not be an entirely different question which the Tribunal never considered.14. It follows from this that the enquiry in such cases must be to see whether the question decided by the Tribunal admits the consideration of the new point as an integral or even an incidental part thereto. Even so, the supplemental statement which the Tribunal is directed to submit must arise from the facts admitted and/or found by the Tribunal, and should not open the door to fresh evidence. The fact that in Ogale Glass Works case, I. T. Ref. No. 19 of 1949, D/- 17-9-1951 (Bom), the Bombay High Court had asked for a supplemental statement in the same way as in the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ), and this Court did not rule out the new matter, cannot help the assessee in the present cases because the jurisdiction of the High Court was not questioned, as it had been done in the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ), or has been done here. We have thus to see whether in this case the question which was decided and which has been referred to the High Court admits the return of the case for a supplemental statement on the lines indicated by the High Court in the order under appeal.15. At the very start, one notices a difference in the question of law in this case and the Ogale Glass Works case, 1955-1 SCR 185 : (AIR 1954 SC 429 ), on the one hand, and the question of law in the Jehangir Vakil Mills case 1960-1 SCR 249 : (AIR 1959 SC 1177 ), on the other. In the former two cases, the question is very wide, while in the latter it is extremely narrow. This can be seen by placing the three questions side by side as below:Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ): "Whether the receipt of the cheques in Bhavnagar amounted to receipt of the sale proceeds in Bhavnagar?Ogale Glass Works case, 1955-1 SCR 185 : (AIR 1954 SC 429 ): "Whether on the facts of the case, income, profits and gains in respect of sales made to the Government of India was received in British India within the meaning of Sec. 4(1)(a) of the Act?"This case: "Whether on the facts and circumstances of the case the profits and gains in respect of the sales made to the Government of India were received by the assessee in taxable territories?16. It is thus quite plain that the question as framed in this case can include an enquiry into whether there was any request, express or implied, that the amount of the bills be paid by cheques so as to bring the matter within the dicta of this Court in the Ogale Glass Works case, 1955-1 SCR 185 : (AIR 1954 SC 429 ), or Jagdish Mills case, 1960-1 SCR 236 : (AIR 1959 SC 1160 ).The first limit to the jurisdiction of the High Court as laid down by this Court is thus not exceeded by the High Court in exercising its powers under S. 66(4) of the Income-tax Act. The question is wide enough to include the alternative line of approach that if there was a request, express or implied, to send the amount due under the bills by cheque, the post office would be the agent of the assessee, and the income was received in the taxable when the cheques were posted.16-a. The next question is whether the High Court has transgressed the second limitation implicit in S. 66(4), that is to say, that the question must arise out of the facts admitted and/or found by the Tribunal. The High Court has observed that,".....it would be necessary for the Appellate Tribunal to find inter alia whether the cheques were sent to the assessee-firm by post or by hand and what directions, if any, had the assessee-firm given to the Department in that matter.If the Tribunal has to make a fresh enquiry leading to the admission of fresh evidence on the record, then this direction offends against the ruling of this Court in the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ). If, however, the direction be interpreted to mean that the Tribunal in giving the finding must confine itself to the facts admitted and/or found by it, the direction cannot be described as in excess of the jurisdiction of the High Court. It would have been better if the High Court had given direction confined to the record of the case before the Tribunal; but, in the absence of anything expressly to the contrary, we cannot hold that the direction would lead inevitably to the admitting of fresh evidence. This, at least, now cannot be done, since the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ), has prohibited the admission of fresh evidence. In our opinion, the present case does not fall within the rule in the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ), and is distinguishable.
### Response:
0
### Explanation:
had to deal with a non-resident Company which, at all material times, was situate at Bhavnagar, one of the Indian States. Cheques in payment for supplies to Government were sent from British India to Bhavnagar. The Department contended in the case that though the cheques were received at Bhavnagar, they were, in fact, cashed in British India and until such encashment, income could not be said to have been received but that on encashment in British India, the receipt of income was also in British India. The Tribunal held that the cheques having been received at Bhavnagar the income was also received there. In doing so, the Tribunal followed the Bombay decision in Kirloskar Brothers case, 1952-21 ITR 82 : (AIR 1952 Bom 306 ). The Tribunal, however, observed that if the Bombay view which was then under appeal to this Court were not upheld, then an enquiry would have to be made as to whether the Mills bankers at Ahmedabad acted as the Mills agents for collecting the amount due on the cheques. The question whether the posting of the cheques from British India to Bhavnagar at the request, express or implied, of the Mills or otherwise, made any difference was not considered at any stage before the case reached the High Court of Bombay.The reference was held back by the Tribunal till the decision of this Court in Ogale Glass Works case, 1955-1 SCR 185 : (AIR 1954 SC 429 ) and Kirloskar Brothers case, 1954-25 ITR 547 : (AIR 1954 SC 504 ). Even after seeing that in those two cases the request for payment by cheques to be sent by post made all the difference, the Tribunal did not frame its statement of the case or the question to include this aspect, because that aspect of the matter was never considered before. The question referred was thus limited to the legal effect of the receipt of the cheques at Bhavnagar without advertence to the fact whether the cheques were so sent by post at the request, express or implied, of the Mills.the question as framed and the statement which accompanied it brought into controversy the only point till then considered by the Tribunal and the taxing authorities. When the case was heard by it, the High Court desired to consider it from the angle of the Kirloskar Brothers. 1952-21 ITR 82 : (AIR 1952 Bom 306 ) and Ogale Glass works, 1955-1 SCR 185 : (AIR 1954 SC 429 ) cases. It called for a supplemental statement of the case. In doing so, the High Court went beyond the ambit of the controversy as it had existed till then and also the statement of the case and the question.It was also pointed out that the facts admitted and or found by the Tribunal could alone be the foundation of the question of law which might be said to arise out of the Tribunals order. The case thus set two limits to the jurisdiction of the High Court under S. 66(4), and they were that the advisory jurisdiction was confined (a) to the facts on the record and/or found by the Tribunal and (b) the question which would arise from the Tribunals order. It was pointed out by this Court that it was not open to the High Court to order a fresh enquiry into new facts with a view to amplifying the record and further that it was equally not open to the High Court to decide a question of law, which did not arise out of the Tribunals order. This was illustrated by comparing the question as framed by the Tribunal with the question which the High Court desired to decide.It follows from this that the enquiry in such cases must be to see whether the question decided by the Tribunal admits the consideration of the new point as an integral or even an incidental part thereto. Even so, the supplemental statement which the Tribunal is directed to submit must arise from the facts admitted and/or found by the Tribunal, and should not open the door to fresh evidence. The fact that in Ogale Glass Works case, I. T. Ref. No. 19 of 1949, D/- 17-9-1951 (Bom), the Bombay High Court had asked for a supplemental statement in the same way as in the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ), and this Court did not rule out the new matter, cannot help the assessee in the present cases because the jurisdiction of the High Court was not questioned, as it had been done in the Jehangir Vakil Mills case, 1960-1 SCR 249 : (AIR 1959 SC 1177 ), or has been done here. We have thus to see whether in this case the question which was decided and which has been referred to the High Court admits the return of the case for a supplemental statement on the lines indicated by the High Court in the order under appeal.It is thus quite plain that the question as framed in this case can include an enquiry into whether there was any request, express or implied, that the amount of the bills be paid by cheques so as to bring the matter within the dicta of this Court in the Ogale Glass Works case, 1955-1 SCR 185 : (AIR 1954 SC 429 ), or Jagdish Mills case, 1960-1 SCR 236 : (AIR 1959 SC 1160 ).The first limit to the jurisdiction of the High Court as laid down by this Court is thus not exceeded by the High Court in exercising its powers under S. 66(4) of the Income-tax Act. The question is wide enough to include the alternative line of approach that if there was a request, express or implied, to send the amount due under the bills by cheque, the post office would be the agent of the assessee, and the income was received in the taxable when the cheques were posted.
|
Ramesh Das (Dead) Thr.Lrs Vs. State of Madhya Pradesh & Ors | the Revenue entries were changed to that of the District Collector in view of the Administrative Order dated 12th April, 1974. According to the respondent¬State, the entry of the name of District Collector as Manager of the temple properties dated 12.04.1974 has been done pursuant to an order of the State Government in order to curb the mismanagement of the temple properties at the hands of the pujaris. When the name of the Collector has been recorded as Manager in the year 1974, Laxmandas did not make any objection during his life time on deletion of his name. Despite the plaintiff claiming right to the property based on the Revenue entries no grievance had been raised at any given time earlier to the filing of the present suit. Even in the suit presently filed the grievance made is with regard to the auction dated 29th April, 1992 and the suit itself was instituted in 1996. 7. As against the contentions put forth by the learned senior counsel for the plaintiff-appellant contending right of the plaintiff over the property, the learned counsel for the respondent, in addition to pointing out the conclusion reached by the lower appellate court as also the High Court has relied upon the judgment dated 27th February, 2019 (2019) 4 SCALE 302 Shri Ram Mandir Indore vs. State of Madhya Pradesh & Others. This Court in the said appeal was considering a similar claim put forth in respect of the property and had negatived the contention put forth therein and dismissed the appeal. What is necessary to be taken note at the outset is that in the said case the Shri Ram Mandir Indore was before this Court and the documents relied upon also referred to the status of the land and the right claimed by the Mandir. However, the claim as made to claim as a private temple was negatived. In fact, in the instant case as rightly observed by the lower appellate court the claim is not even by the temple or the deity but the individual has made claim over the property as if it is privately owned. In that background, the High Court has also taken note that no document has been relied upon by the plaintiff to claim ownership over the property 8. The learned senior counsel on being confronted with the above aspects has contended that even if in the absence of documents of title, when the Revenue entries were to be changed to the name of the District Collector the same could not have been made based on Administrative Order dated 12th April, 1974 without giving opportunity to the person whose name is entered in the Revenue Registers. In that regard, the learned senior counsel has placed reliance on the judgment of this Court dated 6th October, 2016 passed in C.A.No.8554 of 2015 titled as State Government of Madhya Pradesh. & Ors. vs. Narsingh Mandir Chikhalda and Ors. It is no doubt seen in the said judgment that this Court had adverted to the provision as contained in Section 115 of the M.P. Land Revenue Code, 1959 and keeping in view the provision had arrived at the conclusion that any change in the Revenue entry even to make correction of a wrong entry in the Khasra and any other land records, it can only be done by providing opportunity to the person in whose name the Revenue entry subsists and is sought to be corrected. 9. Notwithstanding the legal position in that regard cannot be disputed, the said judgment cannot be applied in abstract. We say so for the reason that in the instant case, as already noticed from the evidence as appreciated by the courts below including the High Court it is evident that no document of title was relied upon by the plaintiff herein to establish his claim. Even the Revenue entry was not individually in the name of the plaintiff but was being claimed based on the entry of his fathers name with that of the temple. On the other hand, in the cited case, the temple itself was the plaintiff and was claiming the entries in their name for which the document relied upon was a registered gift deed dated 20th June, 1963. In that background, it could be assumed that the Revenue entries, if any, contained in the said case was in the background of reliance placed on the gift deed and it is in that backdrop the second substantial question of law relating to the compliance of issuing notice under Section 115 of the M.P Land Revenue Code, 1959 had arisen for consideration. The same was further in the background of the first substantial question of law that was raised therein relating to the status of the temple. In the instant case no substantial question in the contest of ownership has arisen. If that be the position the cited decision would not be of assistance to the appellant herein. 10. Referring to Bandobasti Khasra (Ex¬D1), the First Appellate Court held that Ex.-D1 is an important document in which the disputed land has been shown as Inam Devsthan and being of ownership of the temple and pujari has been shown as the Manager and later, the name of the District Collector, Dhar has been recorded and the said position has been continuing. Based upon the evidence, the First Appellate Court rightly held that mere statement of the plaintiff and Hari Singh-PW¬2, cannot prove the disputed temple as a private temple, the First Appellate Court held that in the Revenue record, the ancestors of the plaintiff has been shown only as Manager and this position has been shown in Ex.D-1 also. In that circumstance, in our considered view that as rightly observed by the High Court in S.A.No.274 of 2001, no substantial question of law as contemplated under Section 100 of the Code of Civil Procedure had arisen for consideration. If that be the position no issue arises for consideration in the instant appeal as well. | 0[ds]Be that as it may, as rightly observed by the lower appellate court and the High Court, no document of title to acquire right and title over the land has been relied upon by the plaintiff. The evidence of Shri Hari Singh PW.2 is also to the said effect and has sought to assert that the people of the village go to the temple for darshan and offer pooja. That by itself does not prove the status of the land nor the ownership as claimed by the plaintiff. Bandobasti Khasra (Ex.D-1) has been produced by the respondent¬defendant as per which the disputed land had been shown as Inam Devasthan, being of the ownership of the temple and the pujari has been shown as the Manager6. Though the plaintiff had relied upon the Revenue entries which were marked in Exhibit P.Series, since we have already taken note that there is no document of title relied upon by the plaintiff, the Revenue entries are of no assistance since as per the well-established position of law the revenue documents do not create title. Even otherwise as stated in the evidence of the defendants, the entries initially were in the name of temple and none of the entries contained the name of the plaintiff. Though initially the name of the pujari in that background was indicated, the Revenue entries were changed to that of the District Collector in view of the Administrative Order dated 12th April, 1974When the name of the Collector has been recorded as Manager in the year 1974, Laxmandas did not make any objection during his life time on deletion of his name. Despite the plaintiff claiming right to the property based on the Revenue entries no grievance had been raised at any given time earlier to the filing of the present suit. Even in the suit presently filed the grievance made is with regard to the auction dated 29th April, 1992 and the suit itself was instituted in 1996In fact, in the instant case as rightly observed by the lower appellate court the claim is not even by the temple or the deity but the individual has made claim over the property as if it is privately owned. In that background, the High Court has also taken note that no document has been relied upon by the plaintiff to claim ownership over the property9. Notwithstanding the legal position in that regard cannot be disputed, the said judgment cannot be applied in abstract. We say so for the reason that in the instant case, as already noticed from the evidence as appreciated by the courts below including the High Court it is evident that no document of title was relied upon by the plaintiff herein to establish his claim. Even the Revenue entry was not individually in the name of the plaintiff but was being claimed based on the entry of his fathers name with that of the temple. On the other hand, in the cited case, the temple itself was the plaintiff and was claiming the entries in their name for which the document relied upon was a registered gift deed dated 20th June, 1963. In that background, it could be assumed that the Revenue entries, if any, contained in the said case was in the background of reliance placed on the gift deed and it is in that backdrop the second substantial question of law relating to the compliance of issuing notice under Section 115 of the M.P Land Revenue Code, 1959 had arisen for consideration. The same was further in the background of the first substantial question of law that was raised therein relating to the status of the temple. In the instant case no substantial question in the contest of ownership has arisen. If that be the position the cited decision would not be of assistance to the appellant herein10. Referring to Bandobasti Khasra (Ex¬D1), the First Appellate Court held that Ex.-D1 is an important document in which the disputed land has been shown as Inam Devsthan and being of ownership of the temple and pujari has been shown as the Manager and later, the name of the District Collector, Dhar has been recorded and the said position has been continuing. Based upon the evidence, the First Appellate Court rightly held that mere statement of the plaintiff and Hari Singh-PW¬2, cannot prove the disputed temple as a private temple, the First Appellate Court held that in the Revenue record, the ancestors of the plaintiff has been shown only as Manager and this position has been shown in Ex.D-1 also. In that circumstance, in our considered view that as rightly observed by the High Court in S.A.No.274 of 2001, no substantial question of law as contemplated under Section 100 of the Code of Civil Procedure had arisen for consideration. If that be the position no issue arises for consideration in the instant appeal as well. | 0 | 2,511 | 880 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the Revenue entries were changed to that of the District Collector in view of the Administrative Order dated 12th April, 1974. According to the respondent¬State, the entry of the name of District Collector as Manager of the temple properties dated 12.04.1974 has been done pursuant to an order of the State Government in order to curb the mismanagement of the temple properties at the hands of the pujaris. When the name of the Collector has been recorded as Manager in the year 1974, Laxmandas did not make any objection during his life time on deletion of his name. Despite the plaintiff claiming right to the property based on the Revenue entries no grievance had been raised at any given time earlier to the filing of the present suit. Even in the suit presently filed the grievance made is with regard to the auction dated 29th April, 1992 and the suit itself was instituted in 1996. 7. As against the contentions put forth by the learned senior counsel for the plaintiff-appellant contending right of the plaintiff over the property, the learned counsel for the respondent, in addition to pointing out the conclusion reached by the lower appellate court as also the High Court has relied upon the judgment dated 27th February, 2019 (2019) 4 SCALE 302 Shri Ram Mandir Indore vs. State of Madhya Pradesh & Others. This Court in the said appeal was considering a similar claim put forth in respect of the property and had negatived the contention put forth therein and dismissed the appeal. What is necessary to be taken note at the outset is that in the said case the Shri Ram Mandir Indore was before this Court and the documents relied upon also referred to the status of the land and the right claimed by the Mandir. However, the claim as made to claim as a private temple was negatived. In fact, in the instant case as rightly observed by the lower appellate court the claim is not even by the temple or the deity but the individual has made claim over the property as if it is privately owned. In that background, the High Court has also taken note that no document has been relied upon by the plaintiff to claim ownership over the property 8. The learned senior counsel on being confronted with the above aspects has contended that even if in the absence of documents of title, when the Revenue entries were to be changed to the name of the District Collector the same could not have been made based on Administrative Order dated 12th April, 1974 without giving opportunity to the person whose name is entered in the Revenue Registers. In that regard, the learned senior counsel has placed reliance on the judgment of this Court dated 6th October, 2016 passed in C.A.No.8554 of 2015 titled as State Government of Madhya Pradesh. & Ors. vs. Narsingh Mandir Chikhalda and Ors. It is no doubt seen in the said judgment that this Court had adverted to the provision as contained in Section 115 of the M.P. Land Revenue Code, 1959 and keeping in view the provision had arrived at the conclusion that any change in the Revenue entry even to make correction of a wrong entry in the Khasra and any other land records, it can only be done by providing opportunity to the person in whose name the Revenue entry subsists and is sought to be corrected. 9. Notwithstanding the legal position in that regard cannot be disputed, the said judgment cannot be applied in abstract. We say so for the reason that in the instant case, as already noticed from the evidence as appreciated by the courts below including the High Court it is evident that no document of title was relied upon by the plaintiff herein to establish his claim. Even the Revenue entry was not individually in the name of the plaintiff but was being claimed based on the entry of his fathers name with that of the temple. On the other hand, in the cited case, the temple itself was the plaintiff and was claiming the entries in their name for which the document relied upon was a registered gift deed dated 20th June, 1963. In that background, it could be assumed that the Revenue entries, if any, contained in the said case was in the background of reliance placed on the gift deed and it is in that backdrop the second substantial question of law relating to the compliance of issuing notice under Section 115 of the M.P Land Revenue Code, 1959 had arisen for consideration. The same was further in the background of the first substantial question of law that was raised therein relating to the status of the temple. In the instant case no substantial question in the contest of ownership has arisen. If that be the position the cited decision would not be of assistance to the appellant herein. 10. Referring to Bandobasti Khasra (Ex¬D1), the First Appellate Court held that Ex.-D1 is an important document in which the disputed land has been shown as Inam Devsthan and being of ownership of the temple and pujari has been shown as the Manager and later, the name of the District Collector, Dhar has been recorded and the said position has been continuing. Based upon the evidence, the First Appellate Court rightly held that mere statement of the plaintiff and Hari Singh-PW¬2, cannot prove the disputed temple as a private temple, the First Appellate Court held that in the Revenue record, the ancestors of the plaintiff has been shown only as Manager and this position has been shown in Ex.D-1 also. In that circumstance, in our considered view that as rightly observed by the High Court in S.A.No.274 of 2001, no substantial question of law as contemplated under Section 100 of the Code of Civil Procedure had arisen for consideration. If that be the position no issue arises for consideration in the instant appeal as well.
### Response:
0
### Explanation:
Be that as it may, as rightly observed by the lower appellate court and the High Court, no document of title to acquire right and title over the land has been relied upon by the plaintiff. The evidence of Shri Hari Singh PW.2 is also to the said effect and has sought to assert that the people of the village go to the temple for darshan and offer pooja. That by itself does not prove the status of the land nor the ownership as claimed by the plaintiff. Bandobasti Khasra (Ex.D-1) has been produced by the respondent¬defendant as per which the disputed land had been shown as Inam Devasthan, being of the ownership of the temple and the pujari has been shown as the Manager6. Though the plaintiff had relied upon the Revenue entries which were marked in Exhibit P.Series, since we have already taken note that there is no document of title relied upon by the plaintiff, the Revenue entries are of no assistance since as per the well-established position of law the revenue documents do not create title. Even otherwise as stated in the evidence of the defendants, the entries initially were in the name of temple and none of the entries contained the name of the plaintiff. Though initially the name of the pujari in that background was indicated, the Revenue entries were changed to that of the District Collector in view of the Administrative Order dated 12th April, 1974When the name of the Collector has been recorded as Manager in the year 1974, Laxmandas did not make any objection during his life time on deletion of his name. Despite the plaintiff claiming right to the property based on the Revenue entries no grievance had been raised at any given time earlier to the filing of the present suit. Even in the suit presently filed the grievance made is with regard to the auction dated 29th April, 1992 and the suit itself was instituted in 1996In fact, in the instant case as rightly observed by the lower appellate court the claim is not even by the temple or the deity but the individual has made claim over the property as if it is privately owned. In that background, the High Court has also taken note that no document has been relied upon by the plaintiff to claim ownership over the property9. Notwithstanding the legal position in that regard cannot be disputed, the said judgment cannot be applied in abstract. We say so for the reason that in the instant case, as already noticed from the evidence as appreciated by the courts below including the High Court it is evident that no document of title was relied upon by the plaintiff herein to establish his claim. Even the Revenue entry was not individually in the name of the plaintiff but was being claimed based on the entry of his fathers name with that of the temple. On the other hand, in the cited case, the temple itself was the plaintiff and was claiming the entries in their name for which the document relied upon was a registered gift deed dated 20th June, 1963. In that background, it could be assumed that the Revenue entries, if any, contained in the said case was in the background of reliance placed on the gift deed and it is in that backdrop the second substantial question of law relating to the compliance of issuing notice under Section 115 of the M.P Land Revenue Code, 1959 had arisen for consideration. The same was further in the background of the first substantial question of law that was raised therein relating to the status of the temple. In the instant case no substantial question in the contest of ownership has arisen. If that be the position the cited decision would not be of assistance to the appellant herein10. Referring to Bandobasti Khasra (Ex¬D1), the First Appellate Court held that Ex.-D1 is an important document in which the disputed land has been shown as Inam Devsthan and being of ownership of the temple and pujari has been shown as the Manager and later, the name of the District Collector, Dhar has been recorded and the said position has been continuing. Based upon the evidence, the First Appellate Court rightly held that mere statement of the plaintiff and Hari Singh-PW¬2, cannot prove the disputed temple as a private temple, the First Appellate Court held that in the Revenue record, the ancestors of the plaintiff has been shown only as Manager and this position has been shown in Ex.D-1 also. In that circumstance, in our considered view that as rightly observed by the High Court in S.A.No.274 of 2001, no substantial question of law as contemplated under Section 100 of the Code of Civil Procedure had arisen for consideration. If that be the position no issue arises for consideration in the instant appeal as well.
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Oriental Insurance Co.Ltd Vs. Sudhakaran K.V | rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger." 13. The submission of Mrs. Bhat, learned counsel, however, is that this Court should not extend the said principle to the vehicles other than the goods carriage. As at present advised, we may not go into the said question in view of some recent decisions of this Court, viz., National Insurance Co. Ltd. v. Laxmi Narain Dhut [(2007) 3 SCC 700] , Oriental Insurance Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] and New India Assurance Co. Ltd. v. Ved Wati [(2007) 9 SCC 486]. 14. The provisions of the Act and, in particular, Section 147 of the Act were enacted for the purpose of enforcing the principles of social justice. It, however, must be kept confined to a third party risk. A contract of insurance which is not statutory in nature should be construed like any other contract. 15. We have noticed the terms of the contract of insurance. It was entered into for the purpose of covering the third party risk and not the risk of the owner or a pillion rider. An exception in the contract of insurance has been made, i.e., by covering the risk of the driver of the vehicle. The deceased was, indisputably, not the driver of the vehicle. 16. The contract of insurance did not cover the owner of the vehicle, certainly not the pillion rider. The deceased was travelling as a passenger, stricto sensu may not be as a gratuitous passenger as in a given case she may not be a member of the family, a friend or other relative. In the sense of the term which is used in common parlance, she might not be even a passenger. In view of the terms of the contract of insurance, however, she would not be covered thereby. It is not necessary for us to deal with large number of precedents operating in this behalf as the question appears to be covered by a few recent decisions of this Court. 17. In United India Insurance Company Ltd. v. Serjerao & Ors. [2007 (13) SCALE 80 ], it was held as under: "7....When a statutory liability has been imposed upon the owner, in our opinion, the same cannot extend the liability of an insurer to indemnify the owner, although in terms of the insurance policy or under the Act, it would not be liable therefor.17. In a given case, the statutory liability of an insurance company, therefore, either may be nil or a sum lower than the amount specified under Section 140 of the Act. Thus, when a separate application is filed in terms of Section 140 of the Act, in terms of Section 168 thereof, an insurer has to be given a notice in which event, it goes without saying, it would be open to the insurance company to plead and prove that it is not liable at all. 18. Furthermore, it is not in dispute that there can be more than one award particularly when a sum paid may have to be adjusted from the final award. Keeping in view the provisions of Section 168 of the Act, there cannot be any doubt whatsoever that an award for enforcing the right under Section 140 of the Act is also required to be passed under Section 168 only after the parties concerned have filed their pleadings and have been given a reasonable opportunity of being heard. A Claims Tribunal, thus, must be satisfied that the conditions precedent specified in Section 140 of the Act have been substantiated, which is the basis for making an award.19. Furthermore, evidently, the amount directed to be paid even in terms of Chapter-X of the Act must as of necessity, in the event of non-compliance of directions has to be recovered in terms of Section 174 of the Act. There is no other provision in the Act which takes care of such a situation. We, therefore, are of the opinion that even when objections are raised by the insurance company in regard to it liability, the Tribunal is required to render a decision upon the issue, which would attain finality and, thus, the same would be any award within the meaning of Section 173 of the Act." It was furthermore held as under: "8. So far as the question of liability regarding labourers travelling in trollies is concerned, the matter was considered by this Court in Oriental Insurance Company Ltd. Vs. Brij Mohan and Ors. (2007) 7 SCALE 753 and it was held that the Insurance Company has no liability..."" 18. Yet again in Ghulam Mohammad Dar v. State of J&K and Ors. [(2008) 1 SCC 422] , this Court opined that the words "injury to any person" as inserted by reason of the 1994 Amendment would only mean a third party and not a passenger travelling on a goods carriage whether gratuitous or otherwise. [See also The New India Insurance Company v. Darshana Devi & Ors. 2008 (2) SCALE 432 ].19. The law which emerges from the said decisions, is: (i) the liability of the insurance company in a case of this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk (ii) the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider; (iii) the pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle.20. For the views we have taken, it is not necessary to refer to a large number of decisions cited at the Bar as they are not applicable in a case of this nature. | 1[ds]17. In a given case, the statutory liability of an insurance company, therefore, either may be nil or a sum lower than the amount specified under Section 140 of the Act. Thus, when a separate application is filed in terms of Section 140 of the Act, in terms of Section 168 thereof, an insurer has to be given a notice in which event, it goes without saying, it would be open to the insurance company to plead and prove that it is not liable at all.Furthermore, it is not in dispute that there can be more than one award particularly when a sum paid may have to be adjusted from the final award. Keeping in view the provisions of Section 168 of the Act, there cannot be any doubt whatsoever that an award for enforcing the right under Section 140 of the Act is also required to be passed under Section 168 only after the parties concerned have filed their pleadings and have been given a reasonable opportunity of being heard. A Claims Tribunal, thus, must be satisfied that the conditions precedent specified in Section 140 of the Act have been substantiated, which is the basis for making an award.19. Furthermore, evidently, the amount directed to be paid even in terms of Chapter-X of the Act must as of necessity, in the event of non-compliance of directions has to be recovered in terms of Section 174 of the Act. There is no other provision in the Act which takes care of such a situation. We, therefore, are of the opinion that even when objections are raised by the insurance company in regard to it liability, the Tribunal is required to render a decision upon the issue, which would attain finality and, thus, the same would be any award within the meaning of Section 173 of thewas furthermore held asSo far as the question of liability regarding labourers travelling in trollies is concerned, the matter was considered by this Court in Oriental Insurance Company Ltd. Vs. Brij Mohan and Ors. (2007) 7 SCALE 753 and it was held that the Insurance Company has no liability...Yet again in Ghulam Mohammad Dar v. State of J&K and Ors. [(2008) 1 SCC 422] , this Court opined that the words "injury to any person" as inserted by reason of the 1994 Amendment would only mean a third party and not a passenger travelling on a goods carriage whether gratuitous or otherwise. [See also The New India Insurance Company v. Darshana Devi & Ors. 2008 (2) SCALE 432 ].19. The law which emerges from the said decisions, is: (i) the liability of the insurance company in a case of this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk (ii) the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider; (iii) the pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle.20. For the views we have taken, it is not necessary to refer to a large number of decisions cited at the Bar as they are not applicable in a case of this nature. | 1 | 2,537 | 643 | ### 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:
rider, as the insurance policy was a statutory policy, and hence it did not cover the risk of death of or bodily injury to a gratuitous passenger." 13. The submission of Mrs. Bhat, learned counsel, however, is that this Court should not extend the said principle to the vehicles other than the goods carriage. As at present advised, we may not go into the said question in view of some recent decisions of this Court, viz., National Insurance Co. Ltd. v. Laxmi Narain Dhut [(2007) 3 SCC 700] , Oriental Insurance Co. Ltd. v. Meena Variyal [(2007) 5 SCC 428] and New India Assurance Co. Ltd. v. Ved Wati [(2007) 9 SCC 486]. 14. The provisions of the Act and, in particular, Section 147 of the Act were enacted for the purpose of enforcing the principles of social justice. It, however, must be kept confined to a third party risk. A contract of insurance which is not statutory in nature should be construed like any other contract. 15. We have noticed the terms of the contract of insurance. It was entered into for the purpose of covering the third party risk and not the risk of the owner or a pillion rider. An exception in the contract of insurance has been made, i.e., by covering the risk of the driver of the vehicle. The deceased was, indisputably, not the driver of the vehicle. 16. The contract of insurance did not cover the owner of the vehicle, certainly not the pillion rider. The deceased was travelling as a passenger, stricto sensu may not be as a gratuitous passenger as in a given case she may not be a member of the family, a friend or other relative. In the sense of the term which is used in common parlance, she might not be even a passenger. In view of the terms of the contract of insurance, however, she would not be covered thereby. It is not necessary for us to deal with large number of precedents operating in this behalf as the question appears to be covered by a few recent decisions of this Court. 17. In United India Insurance Company Ltd. v. Serjerao & Ors. [2007 (13) SCALE 80 ], it was held as under: "7....When a statutory liability has been imposed upon the owner, in our opinion, the same cannot extend the liability of an insurer to indemnify the owner, although in terms of the insurance policy or under the Act, it would not be liable therefor.17. In a given case, the statutory liability of an insurance company, therefore, either may be nil or a sum lower than the amount specified under Section 140 of the Act. Thus, when a separate application is filed in terms of Section 140 of the Act, in terms of Section 168 thereof, an insurer has to be given a notice in which event, it goes without saying, it would be open to the insurance company to plead and prove that it is not liable at all. 18. Furthermore, it is not in dispute that there can be more than one award particularly when a sum paid may have to be adjusted from the final award. Keeping in view the provisions of Section 168 of the Act, there cannot be any doubt whatsoever that an award for enforcing the right under Section 140 of the Act is also required to be passed under Section 168 only after the parties concerned have filed their pleadings and have been given a reasonable opportunity of being heard. A Claims Tribunal, thus, must be satisfied that the conditions precedent specified in Section 140 of the Act have been substantiated, which is the basis for making an award.19. Furthermore, evidently, the amount directed to be paid even in terms of Chapter-X of the Act must as of necessity, in the event of non-compliance of directions has to be recovered in terms of Section 174 of the Act. There is no other provision in the Act which takes care of such a situation. We, therefore, are of the opinion that even when objections are raised by the insurance company in regard to it liability, the Tribunal is required to render a decision upon the issue, which would attain finality and, thus, the same would be any award within the meaning of Section 173 of the Act." It was furthermore held as under: "8. So far as the question of liability regarding labourers travelling in trollies is concerned, the matter was considered by this Court in Oriental Insurance Company Ltd. Vs. Brij Mohan and Ors. (2007) 7 SCALE 753 and it was held that the Insurance Company has no liability..."" 18. Yet again in Ghulam Mohammad Dar v. State of J&K and Ors. [(2008) 1 SCC 422] , this Court opined that the words "injury to any person" as inserted by reason of the 1994 Amendment would only mean a third party and not a passenger travelling on a goods carriage whether gratuitous or otherwise. [See also The New India Insurance Company v. Darshana Devi & Ors. 2008 (2) SCALE 432 ].19. The law which emerges from the said decisions, is: (i) the liability of the insurance company in a case of this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk (ii) the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider; (iii) the pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle.20. For the views we have taken, it is not necessary to refer to a large number of decisions cited at the Bar as they are not applicable in a case of this nature.
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1
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17. In a given case, the statutory liability of an insurance company, therefore, either may be nil or a sum lower than the amount specified under Section 140 of the Act. Thus, when a separate application is filed in terms of Section 140 of the Act, in terms of Section 168 thereof, an insurer has to be given a notice in which event, it goes without saying, it would be open to the insurance company to plead and prove that it is not liable at all.Furthermore, it is not in dispute that there can be more than one award particularly when a sum paid may have to be adjusted from the final award. Keeping in view the provisions of Section 168 of the Act, there cannot be any doubt whatsoever that an award for enforcing the right under Section 140 of the Act is also required to be passed under Section 168 only after the parties concerned have filed their pleadings and have been given a reasonable opportunity of being heard. A Claims Tribunal, thus, must be satisfied that the conditions precedent specified in Section 140 of the Act have been substantiated, which is the basis for making an award.19. Furthermore, evidently, the amount directed to be paid even in terms of Chapter-X of the Act must as of necessity, in the event of non-compliance of directions has to be recovered in terms of Section 174 of the Act. There is no other provision in the Act which takes care of such a situation. We, therefore, are of the opinion that even when objections are raised by the insurance company in regard to it liability, the Tribunal is required to render a decision upon the issue, which would attain finality and, thus, the same would be any award within the meaning of Section 173 of thewas furthermore held asSo far as the question of liability regarding labourers travelling in trollies is concerned, the matter was considered by this Court in Oriental Insurance Company Ltd. Vs. Brij Mohan and Ors. (2007) 7 SCALE 753 and it was held that the Insurance Company has no liability...Yet again in Ghulam Mohammad Dar v. State of J&K and Ors. [(2008) 1 SCC 422] , this Court opined that the words "injury to any person" as inserted by reason of the 1994 Amendment would only mean a third party and not a passenger travelling on a goods carriage whether gratuitous or otherwise. [See also The New India Insurance Company v. Darshana Devi & Ors. 2008 (2) SCALE 432 ].19. The law which emerges from the said decisions, is: (i) the liability of the insurance company in a case of this nature is not extended to a pillion rider of the motor vehicle unless the requisite amount of premium is paid for covering his/her risk (ii) the legal obligation arising under Section 147 of the Act cannot be extended to an injury or death of the owner of vehicle or the pillion rider; (iii) the pillion rider in a two wheeler was not to be treated as a third party when the accident has taken place owing to rash and negligent riding of the scooter and not on the part of the driver of another vehicle.20. For the views we have taken, it is not necessary to refer to a large number of decisions cited at the Bar as they are not applicable in a case of this nature.
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Ismail Papamia & Others Vs. Labour Appellate Tribunal of India & Another | this Court where it has been held that a prohibitory order, although brought into force at a particular point of time does not operate against a particular individual or institution unless the individual or institution has notice of that prohibitory order.What this class of cases lays down is that if an act was per se legal and is rendered illegal by an order issued by Government, the person who was under the belief that what he was doing and was continuing to do was a legal act should have notice that it had ceased to be legal before he is prosecuted for the committing of that act. Those decisions stand on an entirely different footing.We are not dealing here with a case of an offence nor are we dealing here with a case where the employees act which was initially legal has been suddenly rendered illegal. The Standing Orders do not deal with offences. They deal with civil or Industrial rights and liabilities of employer and employees, and there is no principle in law that if a statute or statutory orders create civil rights, those rights cannot come into force unless every party affected by it has special notice.Further, participation in all illegal strike is per se an offence, and it is an illegal activity. Therefore, the employees cannot urge before us that what they were doing was something lawful which was for the first time made unlawful by the coming into operation of the Standing Orders.7. Mr. Sule then points out that if that is the view we take of S. 9 then an employer can with impunity defy the direction given by the Legislature under S. 9 and refuse to post the translation of the Standing Orders on the notice board or negligently delay it as long as possible.We are most anxious that our decision should not lead employers to feel that they are not under an obligation to carry out a direction given in S. 9 of the Act. The Legislature wanted notice of the Standing Orders which were settled to be given to the employees in the best manner possible.It was not possible to provide for, a very language or for the possibility that some of the employees might be illiterate. But dealing with the question fairly and broadly, the Legislature directed that the employer should put up the Standing Orders to the English language and in the language of the majority, and we wish to point out precisely what the effect of non-compliance by the employer of this direction in S. 9 would be.It may well be that non-compliance of the direction in S. 9 with regard to the Standing Orders to be put up in the language of the majority may cause prejudice to the workers. It may be that the workers may be able to satisfy the Industrial Tribunal that they had no notice of the Standing Orders, and further, if they had notice they would not have participated in the illegal strike and risked the penalty of a dismissal.If such a prejudice is caused and the Industrial Tribunal is satisfied, it would be the duty of the Industrial Tribunal to take this circumstance into consideration in deciding whether the application made by the employer for dismissing the employees should be granted or not.Again, there may be a case where the employers non-compliance may not be wilful or negligent. In this case Mr. Vimadalal says that the second respondent company took every step to get the Standing Orders translated into Marathi as speedily as possible. That again is a circumstance which the Industrial Tribunal will take into consideration.Surely it cannot be suggested that where the Industrial Tribunal has a case where the employer is guilty of wilful default in failing to comply with the directions contained in S. 9 that is a factor which the Industrial Tribunal should not take into consideration in considering whether the application of the employer for dismissal of the employees, which right to the employer arose under those very Standing Orders, should be granted.Again Mr. Vimadalal points out that in this case the draft standing Orders were submitted to the Certifying Officer in 1949, that copies of the draft as required by the Act were sent to the Trade Union, that in the draft these two acts were constituted misconduct, and in fact in this respect the draft was following the Model Standing Orders, and Mr. Vimadalal says that from 1949 to 1953 the Trade Union was closely associated with this draft and throughout that period those two acts remained in the draft as constituting misconduct, and, therefore it is not likely that the employees would not have known that the ultimate Standing Orders which were settled by the Appellate Tribunal did not make these two acts misconduct.Again, in our opinion, that is a circumstance which the Industrial Tribunal will take into consideration in deciding whether the workers had notice of the Standing Orders de hors the provisions of S. 9.But these are all arguments on merits, and we agree with Mr. Sule that the absence of notice is an important circumstance which any Tribunal dealing with the merits of the application made by the employer should take into consideration.But when Mr. Sule asks us to elevate the absence of notice to that high position that it must render the provision of S. 7 nugatory and unworkable, we cannot accede to that.Therefore, in our opinion, the date when the Standing Orders come into operation is fixed by the statute under S. 7 and when the Standing Orders come into operation they bind both the employer and the employees.Section 9 is merely directory and we expect the employer to carry out the provisions which the Legislature clearly enacted to be in the interest of the workers and, as we have already pointed out, non-compliance with that direction may result in the employer not succeeding in satisfying the Industrial Tribunal that it is a proper case for dismissing its employees. | 0[ds]That argument of justice and convenience cannot be accepted by us because it is in total opposition to the real aim and object of the Legislature in enacting S. 7. Section 7 is clear and precise in its language and it brings the Standing Orders into operation on a particular date, and in this case the date isresult of the Standing Orders coming into operation is that it creates rights and liabilities not only in the employees but also in the employers. By reason of the Standing Orders certain liabilities are imposed upon the employers and certain rights are created in favour of the employees.Itis an entirely untenable proposition in law that if a particular statute or a particular statutory order comes into operation it should have a binding effect only with regard to one party and not with regard to the other.The object of Standing Orders is to regulate the conditions of service between the employer and the employees; and it is in our opinion impossible to contend that the Standing Orders which mutually regulate the conditions of service between the employer and employees at a particular point of time can regulate only the obligations of the employer and not the obligations of the employees.In view of the language used by S. 7, in our opinion, even though in certain cases it may cause inconvenience or even injustice, it is impossible to give any other construction to S. 9 than that its provisions are directory and not mandatory.The position may be looked at from a different point of view. If notice was the all important factor, which according to Mr. Sule, it is then it is rather surprising that under S. 9 a notice would only be given to the employees knowing English and language of the majority.What would happen to a fairly large section of the workers who may neither know English nor the regional language or the language of the majority Admittedly in this case there are employees who know neither English nor Marathi.There may even be employees who may be illiterate. Therefore it is wrong to suggest that the absence of notice is so important and so significant in the context of this Act that that fact alone brings about a situation whereby the Standing. Orders which have come into operation by reason of S. 7 do not affect or bind the employees who have no notice contemplated by S.are not dealing here with a case of an offence nor are we dealing here with a case where the employees act which was initially legal has been suddenly rendered illegal. The Standing Orders do not deal with offences. They deal with civil or Industrial rights and liabilities of employer and employees, and there is no principle in law that if a statute or statutory orders create civil rights, those rights cannot come into force unless every party affected by it has special notice.Further, participation in all illegal strike is per se an offence, and it is an illegal activity. Therefore, the employees cannot urge before us that what they were doing was something lawful which was for the first time made unlawful by the coming into operation of the Standingare most anxious that our decision should not lead employers to feel that they are not under an obligation to carry out a direction given in S. 9 of the Act. The Legislature wanted notice of the Standing Orders which were settled to be given to the employees in the best manner possible.It was not possible to provide for, a very language or for the possibility that some of the employees might be illiterate. But dealing with the question fairly and broadly, the Legislature directed that the employer should put up the Standing Orders to the English language and in the language of the majority, and we wish to point out precisely what the effect ofby the employer of this direction in S. 9 would be.It may well be thatof the direction in S. 9 with regard to the Standing Orders to be put up in the language of the majority may cause prejudice to the workers. It may be that the workers may be able to satisfy the Industrial Tribunal that they had no notice of the Standing Orders, and further, if they had notice they would not have participated in the illegal strike and risked the penalty of a dismissal.If such a prejudice is caused and the Industrial Tribunal is satisfied, it would be the duty of the Industrial Tribunal to take this circumstance into consideration in deciding whether the application made by the employer for dismissing the employees should be granted or not.Again, there may be a case where the employersmay not be wilful or negligent. In this case Mr. Vimadalal says that the second respondent company took every step to get the Standing Orders translated into Marathi as speedily as possible. That again is a circumstance which the Industrial Tribunal will take into consideration.Surely it cannot be suggested that where the Industrial Tribunal has a case where the employer is guilty of wilful default in failing to comply with the directions contained in S. 9 that is a factor which the Industrial Tribunal should not take into consideration in considering whether the application of the employer for dismissal of the employees, which right to the employer arose under those very Standing Orders, should bewhen Mr. Sule asks us to elevate the absence of notice to that high position that it must render the provision of S. 7 nugatory and unworkable, we cannot accede to that.Therefore, in our opinion, the date when the Standing Orders come into operation is fixed by the statute under S. 7 and when the Standing Orders come into operation they bind both the employer and the employees.Section 9 is merely directory and we expect the employer to carry out the provisions which the Legislature clearly enacted to be in the interest of the workers and, as we have already pointed out,with that direction may result in the employer not succeeding in satisfying the Industrial Tribunal that it is a proper case for dismissing its employees. | 0 | 2,727 | 1,076 | ### 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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this Court where it has been held that a prohibitory order, although brought into force at a particular point of time does not operate against a particular individual or institution unless the individual or institution has notice of that prohibitory order.What this class of cases lays down is that if an act was per se legal and is rendered illegal by an order issued by Government, the person who was under the belief that what he was doing and was continuing to do was a legal act should have notice that it had ceased to be legal before he is prosecuted for the committing of that act. Those decisions stand on an entirely different footing.We are not dealing here with a case of an offence nor are we dealing here with a case where the employees act which was initially legal has been suddenly rendered illegal. The Standing Orders do not deal with offences. They deal with civil or Industrial rights and liabilities of employer and employees, and there is no principle in law that if a statute or statutory orders create civil rights, those rights cannot come into force unless every party affected by it has special notice.Further, participation in all illegal strike is per se an offence, and it is an illegal activity. Therefore, the employees cannot urge before us that what they were doing was something lawful which was for the first time made unlawful by the coming into operation of the Standing Orders.7. Mr. Sule then points out that if that is the view we take of S. 9 then an employer can with impunity defy the direction given by the Legislature under S. 9 and refuse to post the translation of the Standing Orders on the notice board or negligently delay it as long as possible.We are most anxious that our decision should not lead employers to feel that they are not under an obligation to carry out a direction given in S. 9 of the Act. The Legislature wanted notice of the Standing Orders which were settled to be given to the employees in the best manner possible.It was not possible to provide for, a very language or for the possibility that some of the employees might be illiterate. But dealing with the question fairly and broadly, the Legislature directed that the employer should put up the Standing Orders to the English language and in the language of the majority, and we wish to point out precisely what the effect of non-compliance by the employer of this direction in S. 9 would be.It may well be that non-compliance of the direction in S. 9 with regard to the Standing Orders to be put up in the language of the majority may cause prejudice to the workers. It may be that the workers may be able to satisfy the Industrial Tribunal that they had no notice of the Standing Orders, and further, if they had notice they would not have participated in the illegal strike and risked the penalty of a dismissal.If such a prejudice is caused and the Industrial Tribunal is satisfied, it would be the duty of the Industrial Tribunal to take this circumstance into consideration in deciding whether the application made by the employer for dismissing the employees should be granted or not.Again, there may be a case where the employers non-compliance may not be wilful or negligent. In this case Mr. Vimadalal says that the second respondent company took every step to get the Standing Orders translated into Marathi as speedily as possible. That again is a circumstance which the Industrial Tribunal will take into consideration.Surely it cannot be suggested that where the Industrial Tribunal has a case where the employer is guilty of wilful default in failing to comply with the directions contained in S. 9 that is a factor which the Industrial Tribunal should not take into consideration in considering whether the application of the employer for dismissal of the employees, which right to the employer arose under those very Standing Orders, should be granted.Again Mr. Vimadalal points out that in this case the draft standing Orders were submitted to the Certifying Officer in 1949, that copies of the draft as required by the Act were sent to the Trade Union, that in the draft these two acts were constituted misconduct, and in fact in this respect the draft was following the Model Standing Orders, and Mr. Vimadalal says that from 1949 to 1953 the Trade Union was closely associated with this draft and throughout that period those two acts remained in the draft as constituting misconduct, and, therefore it is not likely that the employees would not have known that the ultimate Standing Orders which were settled by the Appellate Tribunal did not make these two acts misconduct.Again, in our opinion, that is a circumstance which the Industrial Tribunal will take into consideration in deciding whether the workers had notice of the Standing Orders de hors the provisions of S. 9.But these are all arguments on merits, and we agree with Mr. Sule that the absence of notice is an important circumstance which any Tribunal dealing with the merits of the application made by the employer should take into consideration.But when Mr. Sule asks us to elevate the absence of notice to that high position that it must render the provision of S. 7 nugatory and unworkable, we cannot accede to that.Therefore, in our opinion, the date when the Standing Orders come into operation is fixed by the statute under S. 7 and when the Standing Orders come into operation they bind both the employer and the employees.Section 9 is merely directory and we expect the employer to carry out the provisions which the Legislature clearly enacted to be in the interest of the workers and, as we have already pointed out, non-compliance with that direction may result in the employer not succeeding in satisfying the Industrial Tribunal that it is a proper case for dismissing its employees.
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0
### Explanation:
enacting S. 7. Section 7 is clear and precise in its language and it brings the Standing Orders into operation on a particular date, and in this case the date isresult of the Standing Orders coming into operation is that it creates rights and liabilities not only in the employees but also in the employers. By reason of the Standing Orders certain liabilities are imposed upon the employers and certain rights are created in favour of the employees.Itis an entirely untenable proposition in law that if a particular statute or a particular statutory order comes into operation it should have a binding effect only with regard to one party and not with regard to the other.The object of Standing Orders is to regulate the conditions of service between the employer and the employees; and it is in our opinion impossible to contend that the Standing Orders which mutually regulate the conditions of service between the employer and employees at a particular point of time can regulate only the obligations of the employer and not the obligations of the employees.In view of the language used by S. 7, in our opinion, even though in certain cases it may cause inconvenience or even injustice, it is impossible to give any other construction to S. 9 than that its provisions are directory and not mandatory.The position may be looked at from a different point of view. If notice was the all important factor, which according to Mr. Sule, it is then it is rather surprising that under S. 9 a notice would only be given to the employees knowing English and language of the majority.What would happen to a fairly large section of the workers who may neither know English nor the regional language or the language of the majority Admittedly in this case there are employees who know neither English nor Marathi.There may even be employees who may be illiterate. Therefore it is wrong to suggest that the absence of notice is so important and so significant in the context of this Act that that fact alone brings about a situation whereby the Standing. Orders which have come into operation by reason of S. 7 do not affect or bind the employees who have no notice contemplated by S.are not dealing here with a case of an offence nor are we dealing here with a case where the employees act which was initially legal has been suddenly rendered illegal. The Standing Orders do not deal with offences. They deal with civil or Industrial rights and liabilities of employer and employees, and there is no principle in law that if a statute or statutory orders create civil rights, those rights cannot come into force unless every party affected by it has special notice.Further, participation in all illegal strike is per se an offence, and it is an illegal activity. Therefore, the employees cannot urge before us that what they were doing was something lawful which was for the first time made unlawful by the coming into operation of the Standingare most anxious that our decision should not lead employers to feel that they are not under an obligation to carry out a direction given in S. 9 of the Act. The Legislature wanted notice of the Standing Orders which were settled to be given to the employees in the best manner possible.It was not possible to provide for, a very language or for the possibility that some of the employees might be illiterate. But dealing with the question fairly and broadly, the Legislature directed that the employer should put up the Standing Orders to the English language and in the language of the majority, and we wish to point out precisely what the effect ofby the employer of this direction in S. 9 would be.It may well be thatof the direction in S. 9 with regard to the Standing Orders to be put up in the language of the majority may cause prejudice to the workers. It may be that the workers may be able to satisfy the Industrial Tribunal that they had no notice of the Standing Orders, and further, if they had notice they would not have participated in the illegal strike and risked the penalty of a dismissal.If such a prejudice is caused and the Industrial Tribunal is satisfied, it would be the duty of the Industrial Tribunal to take this circumstance into consideration in deciding whether the application made by the employer for dismissing the employees should be granted or not.Again, there may be a case where the employersmay not be wilful or negligent. In this case Mr. Vimadalal says that the second respondent company took every step to get the Standing Orders translated into Marathi as speedily as possible. That again is a circumstance which the Industrial Tribunal will take into consideration.Surely it cannot be suggested that where the Industrial Tribunal has a case where the employer is guilty of wilful default in failing to comply with the directions contained in S. 9 that is a factor which the Industrial Tribunal should not take into consideration in considering whether the application of the employer for dismissal of the employees, which right to the employer arose under those very Standing Orders, should bewhen Mr. Sule asks us to elevate the absence of notice to that high position that it must render the provision of S. 7 nugatory and unworkable, we cannot accede to that.Therefore, in our opinion, the date when the Standing Orders come into operation is fixed by the statute under S. 7 and when the Standing Orders come into operation they bind both the employer and the employees.Section 9 is merely directory and we expect the employer to carry out the provisions which the Legislature clearly enacted to be in the interest of the workers and, as we have already pointed out,with that direction may result in the employer not succeeding in satisfying the Industrial Tribunal that it is a proper case for dismissing its employees.
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Bunna Prasad And Ors Vs. The State Of U.P. & Anr | Court disbelieved the explanation of the Panches given before it because no mention of these was made in the order sheet dated December 25, 1963. The High Court held :"There was no reasonable ground for the Panches to have doubted the averments made in the application and affidavit of Mahabir that the High Court had stayed further proceedings before the Panchayat, nor is there anything in the order sheet to show that the Panches did not believe the contents of the application and affidavit of Mahabir. However, if they wanted to ascertain the matter, they should have at best stayed the proceedings for a short while and should have asked the applicant to produce a certified copy of the stay order. In the alternative, they should have verified from the Sub-Divisional Magistrate whether Mahabir had really filed an application and affidavit before him along with the original telegram received from his counsel at Allahabad saying that the High Court had already stayed the proceedings before the Nyaya Panchayat. But the Panches did nothing of the kind. The action of the Nyaya Panches in not doing so was obviously not bona fide and amounts to wilful disobedience of the High Courts order."9. The learned counsel for the appellants, Mr. Chari, says that no contempt of court has been established because a Court is entitled not to act on an application which is not accompanied by an affidavit properly sworn to or a certified copy of the order. He urges that the Nyaya Panchayats exercised judicial powers and, even if the Panches erred in not staying proceedings, before finding them guilty of contempt of court it should be definitely proved that the order was passed deliberately to by pass the order of the High Court.10. This Court quoted with approval the following passage from Oswalds Contempt of Court, in Hoshiar Singh v. Gurbachan Singh, 1962 Supp (3) SCR 127 at p. 138 = (AIR 1962 SC 1089 at pp. 1093-1094) :"The judgment or order should be served on the party personally, except in the following cases: (1) prohibitive orders, the drawing up of which is not completed :In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde, as by telegram, or newspaper report, or otherwise, and knew that it was intended to be enforced, or if he consented to the order, or if he was present in Court when the order was pronounced, or when the motion was made, although he left before the order was pronounced."We need not consider whether it makes any difference in law if the order has been drawn up. We will for the purpose of this case assume that it does not make any difference. It is also clear that in such matters those who assert that a person had knowledge of the order must prove this fact beyond all reasonable doubt. If there is any doubt, the benefit ought to be given to the person charged with contempt of court. If a person bona fide comes to the conclusion on the material placed before him that the source of information is not authentic he cannot be held guilty of contempt of court for disobeying the order.11. The question then arises whether the Sarpanch and the Panches had knowledge of the existence of the order of the High Court dated December 20, 1963. The only material before them was the application dated December 25, 1963, which was not supported by any affidavit sworn to before a person authorised to administer oaths. Further, the application did not contain the date of the order; even a copy of the telegram was not attached to the application and the application seems to have been made after the proceedings on that date had commenced and evidence taken. We are unable to appreciate how on this material the bona fides of the Panches can be doubted if they refused to accept the mere statement of the party that the High Court had stayed proceedings before them. It seems to us that the High Court did not appreciate that the so-called affidavit which was filed before the Panches was in fact not an affidavit at all. It had not been sworn to before any person authorised to administer oaths. It was no part of the duty of the Panches to enquire from the S. D. M. about the filing of the application before him. At any rate, he has apparently no jurisdiction to stay proceedings before the Nyaya Panchayats when no proceeding is pending before him. It is true that in certain cases proceedings can be adjourned to enable the parties to file better proof, but a judicial officer is not bound to do so and, if he bona fide does not in his discretion adjourn proceedings, it cannot be said that he has committed contempt of court. It must also be borne in mind that Panches are not well-versed in law and procedure and the records maintained by them should not be judged in the same manner as that of ordinary courts. With respect, the High Court should not have drawn an adverse inference from the fact that the reasons for not accepting the prayer for stay were not recorded. Contempt of court is a serious matter and a High Court should be chary of finding a judicial officer guilty of contempt of court for disobeying its orders unless there is unimpeachable evidence that the judicial officer had knowledge of the order of the High Court. In our opinion, there is no such evidence in this case.12. The learned counsel for the State contends that we should not reappreciate the facts, but, with respect, it seems to us that the High Court, while dealing with the evidence, has not kept in mind the principles which we have mentioned above. | 1[ds]It is true that in certain cases proceedings can be adjourned to enable the parties to file better proof, but a judicial officer is not bound to do so and, if he bona fide does not in his discretion adjourn proceedings, it cannot be said that he has committed contempt of court. It must also be borne in mind that Panches are not well-versed in law and procedure and the records maintained by them should not be judged in the same manner as that of ordinary courts. With respect, the High Court should not have drawn an adverse inference from the fact that the reasons for not accepting the prayer for stay were not recorded. Contempt of court is a serious matter and a High Court should be chary of finding a judicial officer guilty of contempt of court for disobeying its orders unless there is unimpeachable evidence that the judicial officer had knowledge of the order of the High Court. In our opinion, there is no such evidence in this case. | 1 | 2,731 | 187 | ### 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:
Court disbelieved the explanation of the Panches given before it because no mention of these was made in the order sheet dated December 25, 1963. The High Court held :"There was no reasonable ground for the Panches to have doubted the averments made in the application and affidavit of Mahabir that the High Court had stayed further proceedings before the Panchayat, nor is there anything in the order sheet to show that the Panches did not believe the contents of the application and affidavit of Mahabir. However, if they wanted to ascertain the matter, they should have at best stayed the proceedings for a short while and should have asked the applicant to produce a certified copy of the stay order. In the alternative, they should have verified from the Sub-Divisional Magistrate whether Mahabir had really filed an application and affidavit before him along with the original telegram received from his counsel at Allahabad saying that the High Court had already stayed the proceedings before the Nyaya Panchayat. But the Panches did nothing of the kind. The action of the Nyaya Panches in not doing so was obviously not bona fide and amounts to wilful disobedience of the High Courts order."9. The learned counsel for the appellants, Mr. Chari, says that no contempt of court has been established because a Court is entitled not to act on an application which is not accompanied by an affidavit properly sworn to or a certified copy of the order. He urges that the Nyaya Panchayats exercised judicial powers and, even if the Panches erred in not staying proceedings, before finding them guilty of contempt of court it should be definitely proved that the order was passed deliberately to by pass the order of the High Court.10. This Court quoted with approval the following passage from Oswalds Contempt of Court, in Hoshiar Singh v. Gurbachan Singh, 1962 Supp (3) SCR 127 at p. 138 = (AIR 1962 SC 1089 at pp. 1093-1094) :"The judgment or order should be served on the party personally, except in the following cases: (1) prohibitive orders, the drawing up of which is not completed :In order to justify committal for breach of a prohibitive order it is not necessary that the order should have been served upon the party against whom it has been granted, if it be proved that he had notice of the order aliunde, as by telegram, or newspaper report, or otherwise, and knew that it was intended to be enforced, or if he consented to the order, or if he was present in Court when the order was pronounced, or when the motion was made, although he left before the order was pronounced."We need not consider whether it makes any difference in law if the order has been drawn up. We will for the purpose of this case assume that it does not make any difference. It is also clear that in such matters those who assert that a person had knowledge of the order must prove this fact beyond all reasonable doubt. If there is any doubt, the benefit ought to be given to the person charged with contempt of court. If a person bona fide comes to the conclusion on the material placed before him that the source of information is not authentic he cannot be held guilty of contempt of court for disobeying the order.11. The question then arises whether the Sarpanch and the Panches had knowledge of the existence of the order of the High Court dated December 20, 1963. The only material before them was the application dated December 25, 1963, which was not supported by any affidavit sworn to before a person authorised to administer oaths. Further, the application did not contain the date of the order; even a copy of the telegram was not attached to the application and the application seems to have been made after the proceedings on that date had commenced and evidence taken. We are unable to appreciate how on this material the bona fides of the Panches can be doubted if they refused to accept the mere statement of the party that the High Court had stayed proceedings before them. It seems to us that the High Court did not appreciate that the so-called affidavit which was filed before the Panches was in fact not an affidavit at all. It had not been sworn to before any person authorised to administer oaths. It was no part of the duty of the Panches to enquire from the S. D. M. about the filing of the application before him. At any rate, he has apparently no jurisdiction to stay proceedings before the Nyaya Panchayats when no proceeding is pending before him. It is true that in certain cases proceedings can be adjourned to enable the parties to file better proof, but a judicial officer is not bound to do so and, if he bona fide does not in his discretion adjourn proceedings, it cannot be said that he has committed contempt of court. It must also be borne in mind that Panches are not well-versed in law and procedure and the records maintained by them should not be judged in the same manner as that of ordinary courts. With respect, the High Court should not have drawn an adverse inference from the fact that the reasons for not accepting the prayer for stay were not recorded. Contempt of court is a serious matter and a High Court should be chary of finding a judicial officer guilty of contempt of court for disobeying its orders unless there is unimpeachable evidence that the judicial officer had knowledge of the order of the High Court. In our opinion, there is no such evidence in this case.12. The learned counsel for the State contends that we should not reappreciate the facts, but, with respect, it seems to us that the High Court, while dealing with the evidence, has not kept in mind the principles which we have mentioned above.
### Response:
1
### Explanation:
It is true that in certain cases proceedings can be adjourned to enable the parties to file better proof, but a judicial officer is not bound to do so and, if he bona fide does not in his discretion adjourn proceedings, it cannot be said that he has committed contempt of court. It must also be borne in mind that Panches are not well-versed in law and procedure and the records maintained by them should not be judged in the same manner as that of ordinary courts. With respect, the High Court should not have drawn an adverse inference from the fact that the reasons for not accepting the prayer for stay were not recorded. Contempt of court is a serious matter and a High Court should be chary of finding a judicial officer guilty of contempt of court for disobeying its orders unless there is unimpeachable evidence that the judicial officer had knowledge of the order of the High Court. In our opinion, there is no such evidence in this case.
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THE COMMISSIONER OF INCOME TAX CENTRAL-I, KANPUR Vs. SUBRATA ROY | 1. Delay condoned. 2. Leave granted. 3. The challenge in the present Special Leave Petitions is against the common order dated 21st February, 2014 by which the High Court of Allahabad has recalled the final order dated 27th August, 2013 passed in Income Tax Appeal Nos. 59/2006, 57/2006, 58/2006, 60/2006, 61/2006 and 62/2006 by exercising jurisdiction under Section 260A(7) of the Income Tax Act, 1961 read with Order XLI rule 21 of the Code of Civil Procedure, 1908. 4. A perusal of the judgment and order dated 27th August, 2013 disposing of the appeals would go to show that the said order is not an ex parte order. This would be evident from a mere reading of the order dated 27th August, 2013, the relevant part whereof is extracted herein below: On the other hand, Sri Wasqudeen Ahmed, learned counsel for the assessee has justified the impugned order passed by the Tribunal. He submits that the whole approach of the AO is incorrect as the AO has accepted that the loans taken by the assessee were invested and purchased in the share. The entire observation of the AO are based only on surmise and conjectures and hypotheses and on the basis of the imaginary and illusionary, which cannot be found as basis for rejecting the assessees claim for payment of interest. The case of the assessee is fully covered by the judgment of the Honble Apex Court in the Moodys case (supra). He mentioned on 02.01.2000, an advertisement was published in the Times of India by Sahara India Parivar, in which, it was stated that all the Directors have taken an oath neither they nor their family members can ever share the profit or assets of the company. But the assessment will have to be completed as per the provisions contained in the Income Tax Act and not on the basis of any statement or advertisement published here and there. Learned counsel further submits that the assessee took the loan from M/s Sahara India Mutual Benefits Co. Ltd. (SIMBCL) and claimed payment of interest to the said company. Such interest had been declared by the said company in its income. A person will not take investment in share just to throw away his money unless and until he has a hope to earn an income from such investment. Whether the investment is bad investment or a good investment depends upon the study of the person making the investment in the performance of the company. It may be noticed that the companies giving outstanding performance go out of the market and the companies performing not so well tends to start showing better results. Lastly, he submits that in view of the judgment of the Honble Apex Court in the case of Moody (supra), the interest in shares has to be allowed on the borrowed funds. So, he made a request that the appeals may kindly be dismissed. 5. The participation of the assessee in the hearing of the appeals is also evident from various other parts of the order dated 27th August, 2013 which however need not be extracted in the present order. 6. Shri Kapil Sibal, learned Senior Counsel appearing for the respondents-assessee has sought to persuade the Court that as the discretionary power vested in the High Court has been exercised in favour of the assessee this Court should not interfere with the same in the exercise of jurisdiction under Article 136 of the Constitution of India. Shri Sibal has also pointed out the difficulties of the Senior Counsel (who was to come from Bombay) that had prevented his appearance on 7th August, 2013 and has also urged that a request was made to accommodate the Senior Counsel only for a day and, in fact, the said Senior Counsel had come to Lucknow and argued other cases of the assessee on 8th August, 2013. 7. We have considered the aforesaid submissions. The question is one of availability of jurisdiction under Order XLI rule 21 of the CPC, namely, that the order passed in the appeal is an ex parte order. Not only the said order dated 27th August, 2013 is not an ex parte order as contemplated by the provisions of the Code of Civil Procedure, 1908, the final order dated 27th August, 2013 passed by the High Court clearly contains findings (extracted above) which is to the contrary. In these circumstances, we are of the view that the High Court did not have the jurisdiction under Order XLI rule 21 CPC to recall the final order dated 27th August, 2013 passed in the Income Tax Appeals. The power available under Order XLI rule 21 is hedged by certain pre-conditions and unless the pre-conditions are satisfied the power thereunder cannot be exercised. | 1[ds]7. We have considered the aforesaid submissions. The question is one of availability of jurisdiction under Order XLI rule 21 of the CPC, namely, that the order passed in the appeal is an ex parte order. Not only the said order dated 27th August, 2013 is not an ex parte order as contemplated by the provisions of the Code of Civil Procedure, 1908, the final order dated 27th August, 2013 passed by the High Court clearly contains findings (extracted above) which is to the contrary. In these circumstances, we are of the view that the High Court did not have the jurisdiction under Order XLI rule 21 CPC to recall the final order dated 27th August, 2013 passed in the Income Tax Appeals. The power available under Order XLI rule 21 is hedged by certain pre-conditions and unless the pre-conditions are satisfied the power thereunder cannot be exercised. | 1 | 876 | 169 | ### 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:
1. Delay condoned. 2. Leave granted. 3. The challenge in the present Special Leave Petitions is against the common order dated 21st February, 2014 by which the High Court of Allahabad has recalled the final order dated 27th August, 2013 passed in Income Tax Appeal Nos. 59/2006, 57/2006, 58/2006, 60/2006, 61/2006 and 62/2006 by exercising jurisdiction under Section 260A(7) of the Income Tax Act, 1961 read with Order XLI rule 21 of the Code of Civil Procedure, 1908. 4. A perusal of the judgment and order dated 27th August, 2013 disposing of the appeals would go to show that the said order is not an ex parte order. This would be evident from a mere reading of the order dated 27th August, 2013, the relevant part whereof is extracted herein below: On the other hand, Sri Wasqudeen Ahmed, learned counsel for the assessee has justified the impugned order passed by the Tribunal. He submits that the whole approach of the AO is incorrect as the AO has accepted that the loans taken by the assessee were invested and purchased in the share. The entire observation of the AO are based only on surmise and conjectures and hypotheses and on the basis of the imaginary and illusionary, which cannot be found as basis for rejecting the assessees claim for payment of interest. The case of the assessee is fully covered by the judgment of the Honble Apex Court in the Moodys case (supra). He mentioned on 02.01.2000, an advertisement was published in the Times of India by Sahara India Parivar, in which, it was stated that all the Directors have taken an oath neither they nor their family members can ever share the profit or assets of the company. But the assessment will have to be completed as per the provisions contained in the Income Tax Act and not on the basis of any statement or advertisement published here and there. Learned counsel further submits that the assessee took the loan from M/s Sahara India Mutual Benefits Co. Ltd. (SIMBCL) and claimed payment of interest to the said company. Such interest had been declared by the said company in its income. A person will not take investment in share just to throw away his money unless and until he has a hope to earn an income from such investment. Whether the investment is bad investment or a good investment depends upon the study of the person making the investment in the performance of the company. It may be noticed that the companies giving outstanding performance go out of the market and the companies performing not so well tends to start showing better results. Lastly, he submits that in view of the judgment of the Honble Apex Court in the case of Moody (supra), the interest in shares has to be allowed on the borrowed funds. So, he made a request that the appeals may kindly be dismissed. 5. The participation of the assessee in the hearing of the appeals is also evident from various other parts of the order dated 27th August, 2013 which however need not be extracted in the present order. 6. Shri Kapil Sibal, learned Senior Counsel appearing for the respondents-assessee has sought to persuade the Court that as the discretionary power vested in the High Court has been exercised in favour of the assessee this Court should not interfere with the same in the exercise of jurisdiction under Article 136 of the Constitution of India. Shri Sibal has also pointed out the difficulties of the Senior Counsel (who was to come from Bombay) that had prevented his appearance on 7th August, 2013 and has also urged that a request was made to accommodate the Senior Counsel only for a day and, in fact, the said Senior Counsel had come to Lucknow and argued other cases of the assessee on 8th August, 2013. 7. We have considered the aforesaid submissions. The question is one of availability of jurisdiction under Order XLI rule 21 of the CPC, namely, that the order passed in the appeal is an ex parte order. Not only the said order dated 27th August, 2013 is not an ex parte order as contemplated by the provisions of the Code of Civil Procedure, 1908, the final order dated 27th August, 2013 passed by the High Court clearly contains findings (extracted above) which is to the contrary. In these circumstances, we are of the view that the High Court did not have the jurisdiction under Order XLI rule 21 CPC to recall the final order dated 27th August, 2013 passed in the Income Tax Appeals. The power available under Order XLI rule 21 is hedged by certain pre-conditions and unless the pre-conditions are satisfied the power thereunder cannot be exercised.
### Response:
1
### Explanation:
7. We have considered the aforesaid submissions. The question is one of availability of jurisdiction under Order XLI rule 21 of the CPC, namely, that the order passed in the appeal is an ex parte order. Not only the said order dated 27th August, 2013 is not an ex parte order as contemplated by the provisions of the Code of Civil Procedure, 1908, the final order dated 27th August, 2013 passed by the High Court clearly contains findings (extracted above) which is to the contrary. In these circumstances, we are of the view that the High Court did not have the jurisdiction under Order XLI rule 21 CPC to recall the final order dated 27th August, 2013 passed in the Income Tax Appeals. The power available under Order XLI rule 21 is hedged by certain pre-conditions and unless the pre-conditions are satisfied the power thereunder cannot be exercised.
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Union Vs. Bennett Coleman and Company Employees'Bennett Coleman and Company | been treated as such for a very long time. That is why it has held that the industrial principle of "last come first go" has been observed by the respondent in discharging the workman in question. It is common ground that if the said principle has to be applied by reference to the machine-men employed in the National Printing Works alone no valid objection can be raised against the retrenchment in question.Sri Ramamurthi for the appellant contended that the finding of the tribunal that the National Printing Works is an independent department is wrong in law and he has argued that the said department and the other establishment are housed in the same building, that the terms and conditions of employment of machine-men in the National Printing Works are substantially the same as those prevailing in the rest of the establishment, and his argument, therefore, is that it is erroneous to allow the National Printing Works to be treated as a separate and independent entity. In support of this argument he has referred us to the decision of this Court in Indian Cable Co., Ltd., Calcutta v. Its workmen [(1952) Suppl. 3 S.C.R. 589] as well as to the case of Superintending Engineer, Machkund, and others v. Workmen of Machkund Hydro-electric Project and another [A.I.R. 1960 Orissa 205]. We do not think it would be possible for us to decide this large issue in the present appeal. There is no evidence on the record in regard to the terms and conditions of service prevailing in the National Printing Works and the other part of the establishment, and though it is true that there are some documents (Exs. W. 23 and M.15-A) which would show that compositors from the job printing department were liable to be, and in fact were, transferred to the news department, that itself cannot afford adequate material for dealing with the larger issue which Sri Ramamurthi seeks to raise. That being so, we do not propose to deal with the merits of the finding of the tribunal that the National Printing Works is an independent department unconnected with the rest of the establishment run by the respondent. The said question will have to be tried between the parties, if necessary, in future no more satisfactory material.In our opinion, the award made by the tribunal can be sustained on the narrow ground that the seniority list by reference to which the discharge of the machine-men in question has been sustained by the tribunal was substantially agreed to by the appellant. It appears that the National Printing Works has been running at a loss for some time in the past and the respondent was thinking of closing the said department. That is why on 27 April, 1961 discussion took place between the parties and the appellant was informed by the respondent that thirty employees would be retrenched on payment of compensation as required by law. In pursuance of this discussion, the seniority list was duly prepared and as required by rule 77 of the Industrial Rules the said list was communicated to the union on 9 May, 1961. In this list, the machine-men, working in the National Printing Works alone were shown according to their seniority. The appellant raised some objection in regard to the seniority list of the compositors and they were duly considered and the said list was modified. No objection was raised in regard to the seniority list of the machine-men. Acting on this list, the workmen in question were retrenched on 24 May, 1961, and as we have already indicated, it is the last four workmen who were discharged, and so, there can be no objection on the ground that the principle of "last come first go" has not been followed. That, in our opinion, afford a good ground for sustaining the finding of the tribunal, and it is no the ground alone that we confirm the award by the tribunal.3. Sri Ramamurthi then attempted to argue that the impugned retrenchment is inconsistent with the agreement entered into between the parties on 2 November, 1960. This agreement shows that the respondent consented to try the experiment of running the job department even though it was incurring loss subject to certain conditions. Those conditions are specified in this agreement. One of these conditions was that as a measures of trial, the job department would be continued for a period of two years and two months ending 21 December, 1962, and during this period, the respondent would not effect any cut in the existing emoluments of the workers, subject to the terms laid down in Sub-cl. (ii) of Cl.3 as mentioned thereafter. There were other conditions to which it is not necessary to refer. The agreement concluded with term that if at the end of the experimental period, "no loss" position is not reached, the workmen would be retrenched consequent to the closure of the job department and he paid their dues in accordance with the provisions of law. Sri Ramamurthi suggests that by this agreement the respondent undertook to run the department for the agreed period without retrenching any workman. We are not impressed by this argument. All that the respondent agreed to do, subject to the conditions specified in the agreement, was not to close the job department for the period and see if losses could be cut down so as to enable the respondent to continue the department still further. The respondent had agreed not to make any cut in the wages as specified in Cl.1(i). There was no agreement that there would be no retrenchment. Therefore, we do not think that the fact that the respondent agreed not to close down the department for the stipulated period can be said to imply a further agreement that during the said period no retrenchment could be effected. That being so, we do not think there is any substance in the argument that the retrenchment in question is contrary to the implied terms of this agreement. | 0[ds]We do not think it would be possible for us to decide this large issue in the present appeal. There is no evidence on the record in regard to the terms and conditions of service prevailing in the National Printing Works and the other part of the establishment, and though it is true that there are some documents (Exs. W. 23 andwhich would show that compositors from the job printing department were liable to be, and in fact were, transferred to the news department, that itself cannot afford adequate material for dealing with the larger issue which Sri Ramamurthi seeks to raise. That being so, we do not propose to deal with the merits of the finding of the tribunal that the National Printing Works is an independent department unconnected with the rest of the establishment run by the respondent. The said question will have to be tried between the parties, if necessary, in future no more satisfactory material.In our opinion, the award made by the tribunal can be sustained on the narrow ground that the seniority list by reference to which the discharge of thein question has been sustained by the tribunal was substantially agreed to by the appellant. It appears that the National Printing Works has been running at a loss for some time in the past and the respondent was thinking of closing the said department. That is why on 27 April, 1961 discussion took place between the parties and the appellant was informed by the respondent that thirty employees would be retrenched on payment of compensation as required by law. In pursuance of this discussion, the seniority list was duly prepared and as required by rule 77 of the Industrial Rules the said list was communicated to the union on 9 May, 1961. In this list, theworking in the National Printing Works alone were shown according to their seniority. The appellant raised some objection in regard to the seniority list of the compositors and they were duly considered and the said list was modified. No objection was raised in regard to the seniority list of theActing on this list, the workmen in question were retrenched on 24 May, 1961, and as we have already indicated, it is the last four workmen who were discharged, and so, there can be no objection on the ground that the principle of "last come first go" has not been followed. That, in our opinion, afford a good ground for sustaining the finding of the tribunal, and it is no the ground alone that we confirm the award by theagreement shows that the respondent consented to try the experiment of running the job department even though it was incurring loss subject to certain conditions. Those conditions are specified in this agreement. One of these conditions was that as a measures of trial, the job department would be continued for a period of two years and two months ending 21 December, 1962, and during this period, the respondent would not effect any cut in the existing emoluments of the workers, subject to the terms laid down in(ii) of Cl.3 as mentioned thereafter. There were other conditions to which it is not necessary to refer. The agreement concluded with term that if at the end of the experimental period, "no loss" position is not reached, the workmen would be retrenched consequent to the closure of the job department and he paid their dues in accordance with the provisions of law.that the respondent agreed to do, subject to the conditions specified in the agreement, was not to close the job department for the period and see if losses could be cut down so as to enable the respondent to continue the department still further. The respondent had agreed not to make any cut in the wages as specified in Cl.1(i). There was no agreement that there would be no retrenchment. Therefore, we do not think that the fact that the respondent agreed not to close down the department for the stipulated period can be said to imply a further agreement that during the said period no retrenchment could be effected. That being so, we do not think there is any substance in the argument that the retrenchment in question is contrary to the implied terms of this agreement. | 0 | 1,663 | 782 | ### 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:
been treated as such for a very long time. That is why it has held that the industrial principle of "last come first go" has been observed by the respondent in discharging the workman in question. It is common ground that if the said principle has to be applied by reference to the machine-men employed in the National Printing Works alone no valid objection can be raised against the retrenchment in question.Sri Ramamurthi for the appellant contended that the finding of the tribunal that the National Printing Works is an independent department is wrong in law and he has argued that the said department and the other establishment are housed in the same building, that the terms and conditions of employment of machine-men in the National Printing Works are substantially the same as those prevailing in the rest of the establishment, and his argument, therefore, is that it is erroneous to allow the National Printing Works to be treated as a separate and independent entity. In support of this argument he has referred us to the decision of this Court in Indian Cable Co., Ltd., Calcutta v. Its workmen [(1952) Suppl. 3 S.C.R. 589] as well as to the case of Superintending Engineer, Machkund, and others v. Workmen of Machkund Hydro-electric Project and another [A.I.R. 1960 Orissa 205]. We do not think it would be possible for us to decide this large issue in the present appeal. There is no evidence on the record in regard to the terms and conditions of service prevailing in the National Printing Works and the other part of the establishment, and though it is true that there are some documents (Exs. W. 23 and M.15-A) which would show that compositors from the job printing department were liable to be, and in fact were, transferred to the news department, that itself cannot afford adequate material for dealing with the larger issue which Sri Ramamurthi seeks to raise. That being so, we do not propose to deal with the merits of the finding of the tribunal that the National Printing Works is an independent department unconnected with the rest of the establishment run by the respondent. The said question will have to be tried between the parties, if necessary, in future no more satisfactory material.In our opinion, the award made by the tribunal can be sustained on the narrow ground that the seniority list by reference to which the discharge of the machine-men in question has been sustained by the tribunal was substantially agreed to by the appellant. It appears that the National Printing Works has been running at a loss for some time in the past and the respondent was thinking of closing the said department. That is why on 27 April, 1961 discussion took place between the parties and the appellant was informed by the respondent that thirty employees would be retrenched on payment of compensation as required by law. In pursuance of this discussion, the seniority list was duly prepared and as required by rule 77 of the Industrial Rules the said list was communicated to the union on 9 May, 1961. In this list, the machine-men, working in the National Printing Works alone were shown according to their seniority. The appellant raised some objection in regard to the seniority list of the compositors and they were duly considered and the said list was modified. No objection was raised in regard to the seniority list of the machine-men. Acting on this list, the workmen in question were retrenched on 24 May, 1961, and as we have already indicated, it is the last four workmen who were discharged, and so, there can be no objection on the ground that the principle of "last come first go" has not been followed. That, in our opinion, afford a good ground for sustaining the finding of the tribunal, and it is no the ground alone that we confirm the award by the tribunal.3. Sri Ramamurthi then attempted to argue that the impugned retrenchment is inconsistent with the agreement entered into between the parties on 2 November, 1960. This agreement shows that the respondent consented to try the experiment of running the job department even though it was incurring loss subject to certain conditions. Those conditions are specified in this agreement. One of these conditions was that as a measures of trial, the job department would be continued for a period of two years and two months ending 21 December, 1962, and during this period, the respondent would not effect any cut in the existing emoluments of the workers, subject to the terms laid down in Sub-cl. (ii) of Cl.3 as mentioned thereafter. There were other conditions to which it is not necessary to refer. The agreement concluded with term that if at the end of the experimental period, "no loss" position is not reached, the workmen would be retrenched consequent to the closure of the job department and he paid their dues in accordance with the provisions of law. Sri Ramamurthi suggests that by this agreement the respondent undertook to run the department for the agreed period without retrenching any workman. We are not impressed by this argument. All that the respondent agreed to do, subject to the conditions specified in the agreement, was not to close the job department for the period and see if losses could be cut down so as to enable the respondent to continue the department still further. The respondent had agreed not to make any cut in the wages as specified in Cl.1(i). There was no agreement that there would be no retrenchment. Therefore, we do not think that the fact that the respondent agreed not to close down the department for the stipulated period can be said to imply a further agreement that during the said period no retrenchment could be effected. That being so, we do not think there is any substance in the argument that the retrenchment in question is contrary to the implied terms of this agreement.
### Response:
0
### Explanation:
We do not think it would be possible for us to decide this large issue in the present appeal. There is no evidence on the record in regard to the terms and conditions of service prevailing in the National Printing Works and the other part of the establishment, and though it is true that there are some documents (Exs. W. 23 andwhich would show that compositors from the job printing department were liable to be, and in fact were, transferred to the news department, that itself cannot afford adequate material for dealing with the larger issue which Sri Ramamurthi seeks to raise. That being so, we do not propose to deal with the merits of the finding of the tribunal that the National Printing Works is an independent department unconnected with the rest of the establishment run by the respondent. The said question will have to be tried between the parties, if necessary, in future no more satisfactory material.In our opinion, the award made by the tribunal can be sustained on the narrow ground that the seniority list by reference to which the discharge of thein question has been sustained by the tribunal was substantially agreed to by the appellant. It appears that the National Printing Works has been running at a loss for some time in the past and the respondent was thinking of closing the said department. That is why on 27 April, 1961 discussion took place between the parties and the appellant was informed by the respondent that thirty employees would be retrenched on payment of compensation as required by law. In pursuance of this discussion, the seniority list was duly prepared and as required by rule 77 of the Industrial Rules the said list was communicated to the union on 9 May, 1961. In this list, theworking in the National Printing Works alone were shown according to their seniority. The appellant raised some objection in regard to the seniority list of the compositors and they were duly considered and the said list was modified. No objection was raised in regard to the seniority list of theActing on this list, the workmen in question were retrenched on 24 May, 1961, and as we have already indicated, it is the last four workmen who were discharged, and so, there can be no objection on the ground that the principle of "last come first go" has not been followed. That, in our opinion, afford a good ground for sustaining the finding of the tribunal, and it is no the ground alone that we confirm the award by theagreement shows that the respondent consented to try the experiment of running the job department even though it was incurring loss subject to certain conditions. Those conditions are specified in this agreement. One of these conditions was that as a measures of trial, the job department would be continued for a period of two years and two months ending 21 December, 1962, and during this period, the respondent would not effect any cut in the existing emoluments of the workers, subject to the terms laid down in(ii) of Cl.3 as mentioned thereafter. There were other conditions to which it is not necessary to refer. The agreement concluded with term that if at the end of the experimental period, "no loss" position is not reached, the workmen would be retrenched consequent to the closure of the job department and he paid their dues in accordance with the provisions of law.that the respondent agreed to do, subject to the conditions specified in the agreement, was not to close the job department for the period and see if losses could be cut down so as to enable the respondent to continue the department still further. The respondent had agreed not to make any cut in the wages as specified in Cl.1(i). There was no agreement that there would be no retrenchment. Therefore, we do not think that the fact that the respondent agreed not to close down the department for the stipulated period can be said to imply a further agreement that during the said period no retrenchment could be effected. That being so, we do not think there is any substance in the argument that the retrenchment in question is contrary to the implied terms of this agreement.
|
Baranagore Jute Factory Plc. Mazdoor Sangh (Bms) Etc Vs. Baranagore Jute Factory Plc. Etc | the same in fixed deposit subject to further orders of the court". The Official Liquidator was of the view that ... "the money should be deposited with the Registrar, Original Side".19. After considering the submissions of the learned Counsel appearing for the parties, the learned Single Judge, formed the opinion that ... "the submission made on behalf of the Official Liquidator is also in conformity with the submission made by Mr. S.N. Mitra, who has largest support of the parties before me (the court)". Hence, the learned Single Judge made it clear that "In that view of the matter, the National Highway Authority was restrained from making any payment on account of compensation to the company in liquidation except by way of an account payee cheque to the Registrar, Original Side of the High Court". Therefore, it is fairly clear that the court had in mind the entire compensation paid by the NHAI in respect of the land acquired by them. Since the NHAI was bound to deduct TDS, an amount of Rs. 10,55,60,331/- was paid to the Income-Tax Department. There can be no doubt whatsoever that the said amount formed part of the compensation. What the court in its order dated 23.02.2011 was requested and the court intended too was to protect the compensation amount. Merely because it goes through the Income-Tax Department, the same does not cease to be part of compensation. Even the respondents herein had submitted before the court at the time of passing the order dated 23.02.2011 that the compensation amount needed to be protected and they were willing to protect it subject to the order of the court. Therefore, the respondents, while handling of the compensation amount, had to seek orders from the court; going by the way they understood the proceedings.20. In that background of the case, we are of the view that the respondents should not have appropriated the refund they received from the Income-Tax Department. There is nothing wrong in claiming the refund. The problem is in utilising the refund received. The refund they received is actually the compensation in respect of the land acquired from the company and it is that amount which the court wanted to protect by its order dated 23.02.2011. Hence, prima facie, we are of the view that the appropriation made by the respondents of the refund amount they received from the Income-Tax Department was in violation of the order dated 23.02.2011. It appears, for that reason only, even the Division Bench declined to disturb the Rule in the contempt proceedings issued against respondents. However, the Division Bench is wholly wrong in entering a finding that there is no violation of the order dated 23.02.2011 in utilising the refund. No doubt, had the refund and subsequent appropriation been of any amount other than the compensation, there would not have been any contempt at all.21. Unfortunately, the Division Bench, in the impugned order, failed to recapitulate the background of the order dated 23.02.2011 and its own earlier orders with regard to the refusal for withdrawal by the respondents of the compensation deposited in court. Even if there be pressing needs, there could not have been any utilisation of the compensation amount without leave of the court. We find that the Division Bench has taken note of the expenditure made by the respondents of the amount they received. To quote the relevant background: "We have also looked into the details of utilisation of the refund as given in the schedule being Annexure L to the stay application filed before us, wherefrom it appears that Rs. 1,19,18,723/- was paid towards arrear electricity charges by three account payee cheques drawn on Axis Bank Ltd., particulars whereof have been given in the schedule. Another Rs. 2,23,00,000/- has been kept in fixed deposit as lien for issuance of bank guarantee favouring CESC Ltd., against the security deposit to be paid to CESC Ltd., for continuation of supply of electricity. This payment has been made by cheque dated 28th June, 2014 and also by transfer from Syndicate Bank on 28th June, 2014. A sum of Rs. 24,92,582/- has been paid towards arrear Central Sales Tax [Partial Payment]; Rs. 34,56,910/- towards Employees State Insurance contribution; Rs. 44,44,044/- towards Provident Fund contribution; Rs. 66,00,000/- towards arrear dues of Jute Corporation, a government body and Rs. 4,68,85,198/- towards arrear wages, arrear ex gratia payment, arrear gratuity and other arrear dues of the workmen." 22. It is also seen from the order that the Division Bench had taken note of the paltry balance in the accounts of the company as on 27.06.2015. To quote: "We directed the company to furnish us with details of its bank operations. It appears that the company has about twelve bank accounts in operation in India and the combined balance in all these accounts taken together as on 27th June, 2015 was Rs. 13,96,188.79P. Our attention has been drawn by Mr. Mookherjee to the fact that there are three other bank accounts with combined balance of not more than Rs. 3,44,436/- which have not been used for over seven years and the company also has a bank account outside India that has a balance of 936 pounds [less than Rs. 1,00,000/- in value in Indian currency]." 23. It may be seen that the respondents have been managing the affairs of the company for a few years despite the futile attempts made by them to withdraw the compensation lying in deposit in court.24. As held by this Court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and another, (1996) 4 SCC 622 , and going a step further, the Court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the orders. In that regard, the Court may even take restitutive measures at any stage of the proceedings.25. In the background as above of the case, the Division Bench should not have interfered with the order dated 26.06.2015 passed by the learned Single Judge. | 1[ds]6. It may specifically be noted that the Division Bench has not interfered with the Rule issued to the respondents in the proceedings initiated under The Contempt of Courts Act, 1971 (hereinafter referred to as the Act) for the alleged violation of the order dated 23.02.2011. The Division Bench only vacated the order regarding operation of the bank accounts of the company without securing the amount of rupees ten crores and odd.12. Thus, it may be noted that this Court declined to interfere with the order passed by the Division Bench of the High Court, which in turn refused the prayer for withdrawal of the deposit lying with the Court.As we have already clarified, the Division Bench, in the impugned order, has not interfered with the Rule issued in the contempt proceedings. The interference is only to the extent of direction to secure the TDS amount Rs. 10,55,60,331/-.Though Shri Shyam Divan, learned Senior Counsel invited our attention to the judgment of this Court in Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and others v. M. George Ravishekaran and others, (2014) 3 SCC 373 , and contended that the courts must not travel beyond the four corners of the order which is alleged to have been flouted,in the background which we have explained above, we find it difficult to appreciate the submission. This Court, in the judgment referred to above, in paragraph-19, has clarified that the directions which are explicit in the judgment or "are plainly self-evident" can be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Prima facie, we are of the view that learned Single Judge has taken note only of the plainly self-evident facts while issuing the Rule and order regarding securing the amounts which the respondents received by way of refund from the Income-Tax Department and utilized.18. It may be seen that the order dated 23.02.2011 regarding the deposit in court was passed to secure the entire compensation from the NHAI. The court was concerned about the money to be received from the NHAI towards the compensation and appropriately protecting the same from being used by the company. Even the respondents herein had "... no objection to money being protected...". The court had, in fact, declined the request made by the respondents ... "to receive the compensation and to keep the same in fixed deposit subject to further orders of the court". The Official Liquidator was of the view that ... "the money should be deposited with the Registrar, Original Side".19. After considering the submissions of the learned Counsel appearing for the parties, the learned Single Judge, formed the opinion that ... "the submission made on behalf of the Official Liquidator is also in conformity with the submission made by Mr. S.N. Mitra, who has largest support of the parties before me (the court)". Hence, the learned Single Judge made it clear that "In that view of the matter, the National Highway Authority was restrained from making any payment on account of compensation to the company in liquidation except by way of an account payee cheque to the Registrar, Original Side of the High Court". Therefore, it is fairly clear that the court had in mind the entire compensation paid by the NHAI in respect of the land acquired by them. Since the NHAI was bound to deduct TDS, an amount of Rs. 10,55,60,331/- was paid to the Income-Tax Department. There can be no doubt whatsoever that the said amount formed part of the compensation. What the court in its order dated 23.02.2011 was requested and the court intended too was to protect the compensation amount. Merely because it goes through the Income-Tax Department, the same does not cease to be part of compensation. Even the respondents herein had submitted before the court at the time of passing the order dated 23.02.2011 that the compensation amount needed to be protected and they were willing to protect it subject to the order of the court. Therefore, the respondents, while handling of the compensation amount, had to seek orders from the court; going by the way they understood the proceedings.20. In that background of the case, we are of the view that the respondents should not have appropriated the refund they received from the Income-Tax Department. There is nothing wrong in claiming the refund. The problem is in utilising the refund received. The refund they received is actually the compensation in respect of the land acquired from the company and it is that amount which the court wanted to protect by its order dated 23.02.2011. Hence, prima facie, we are of the view that the appropriation made by the respondents of the refund amount they received from the Income-Tax Department was in violation of the order dated 23.02.2011. It appears, for that reason only, even the Division Bench declined to disturb the Rule in the contempt proceedings issued against respondents. However, the Division Bench is wholly wrong in entering a finding that there is no violation of the order dated 23.02.2011 in utilising the refund. No doubt, had the refund and subsequent appropriation been of any amount other than the compensation, there would not have been any contempt at all.21. Unfortunately, the Division Bench, in the impugned order, failed to recapitulate the background of the order dated 23.02.2011 and its own earlier orders with regard to the refusal for withdrawal by the respondents of the compensation deposited in court. Even if there be pressing needs, there could not have been any utilisation of the compensation amount without leave of the court. We find that the Division Bench has taken note of the expenditure made by the respondents of the amount they received.It may be seen that the respondents have been managing the affairs of the company for a few years despite the futile attempts made by them to withdraw the compensation lying in deposit in court.24. As held by this Court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and another, (1996) 4 SCC 622 , and going a step further, the Court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the orders. In that regard, the Court may even take restitutive measures at any stage of the proceedings.25. In the background as above of the case, the Division Bench should not have interfered with the order dated 26.06.2015 passed by the learned Single Judge.26. We make it clear that any observations made by us are only for the purpose of this order and shall not have any bearing on the consideration by the learned Single Judge in the contempt proceedings. | 1 | 4,263 | 1,238 | ### Instruction:
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### Input:
the same in fixed deposit subject to further orders of the court". The Official Liquidator was of the view that ... "the money should be deposited with the Registrar, Original Side".19. After considering the submissions of the learned Counsel appearing for the parties, the learned Single Judge, formed the opinion that ... "the submission made on behalf of the Official Liquidator is also in conformity with the submission made by Mr. S.N. Mitra, who has largest support of the parties before me (the court)". Hence, the learned Single Judge made it clear that "In that view of the matter, the National Highway Authority was restrained from making any payment on account of compensation to the company in liquidation except by way of an account payee cheque to the Registrar, Original Side of the High Court". Therefore, it is fairly clear that the court had in mind the entire compensation paid by the NHAI in respect of the land acquired by them. Since the NHAI was bound to deduct TDS, an amount of Rs. 10,55,60,331/- was paid to the Income-Tax Department. There can be no doubt whatsoever that the said amount formed part of the compensation. What the court in its order dated 23.02.2011 was requested and the court intended too was to protect the compensation amount. Merely because it goes through the Income-Tax Department, the same does not cease to be part of compensation. Even the respondents herein had submitted before the court at the time of passing the order dated 23.02.2011 that the compensation amount needed to be protected and they were willing to protect it subject to the order of the court. Therefore, the respondents, while handling of the compensation amount, had to seek orders from the court; going by the way they understood the proceedings.20. In that background of the case, we are of the view that the respondents should not have appropriated the refund they received from the Income-Tax Department. There is nothing wrong in claiming the refund. The problem is in utilising the refund received. The refund they received is actually the compensation in respect of the land acquired from the company and it is that amount which the court wanted to protect by its order dated 23.02.2011. Hence, prima facie, we are of the view that the appropriation made by the respondents of the refund amount they received from the Income-Tax Department was in violation of the order dated 23.02.2011. It appears, for that reason only, even the Division Bench declined to disturb the Rule in the contempt proceedings issued against respondents. However, the Division Bench is wholly wrong in entering a finding that there is no violation of the order dated 23.02.2011 in utilising the refund. No doubt, had the refund and subsequent appropriation been of any amount other than the compensation, there would not have been any contempt at all.21. Unfortunately, the Division Bench, in the impugned order, failed to recapitulate the background of the order dated 23.02.2011 and its own earlier orders with regard to the refusal for withdrawal by the respondents of the compensation deposited in court. Even if there be pressing needs, there could not have been any utilisation of the compensation amount without leave of the court. We find that the Division Bench has taken note of the expenditure made by the respondents of the amount they received. To quote the relevant background: "We have also looked into the details of utilisation of the refund as given in the schedule being Annexure L to the stay application filed before us, wherefrom it appears that Rs. 1,19,18,723/- was paid towards arrear electricity charges by three account payee cheques drawn on Axis Bank Ltd., particulars whereof have been given in the schedule. Another Rs. 2,23,00,000/- has been kept in fixed deposit as lien for issuance of bank guarantee favouring CESC Ltd., against the security deposit to be paid to CESC Ltd., for continuation of supply of electricity. This payment has been made by cheque dated 28th June, 2014 and also by transfer from Syndicate Bank on 28th June, 2014. A sum of Rs. 24,92,582/- has been paid towards arrear Central Sales Tax [Partial Payment]; Rs. 34,56,910/- towards Employees State Insurance contribution; Rs. 44,44,044/- towards Provident Fund contribution; Rs. 66,00,000/- towards arrear dues of Jute Corporation, a government body and Rs. 4,68,85,198/- towards arrear wages, arrear ex gratia payment, arrear gratuity and other arrear dues of the workmen." 22. It is also seen from the order that the Division Bench had taken note of the paltry balance in the accounts of the company as on 27.06.2015. To quote: "We directed the company to furnish us with details of its bank operations. It appears that the company has about twelve bank accounts in operation in India and the combined balance in all these accounts taken together as on 27th June, 2015 was Rs. 13,96,188.79P. Our attention has been drawn by Mr. Mookherjee to the fact that there are three other bank accounts with combined balance of not more than Rs. 3,44,436/- which have not been used for over seven years and the company also has a bank account outside India that has a balance of 936 pounds [less than Rs. 1,00,000/- in value in Indian currency]." 23. It may be seen that the respondents have been managing the affairs of the company for a few years despite the futile attempts made by them to withdraw the compensation lying in deposit in court.24. As held by this Court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and another, (1996) 4 SCC 622 , and going a step further, the Court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the orders. In that regard, the Court may even take restitutive measures at any stage of the proceedings.25. In the background as above of the case, the Division Bench should not have interfered with the order dated 26.06.2015 passed by the learned Single Judge.
### Response:
1
### Explanation:
not interfered with the Rule issued in the contempt proceedings. The interference is only to the extent of direction to secure the TDS amount Rs. 10,55,60,331/-.Though Shri Shyam Divan, learned Senior Counsel invited our attention to the judgment of this Court in Sudhir Vasudeva, Chairman and Managing Director, Oil and Natural Gas Corporation Limited and others v. M. George Ravishekaran and others, (2014) 3 SCC 373 , and contended that the courts must not travel beyond the four corners of the order which is alleged to have been flouted,in the background which we have explained above, we find it difficult to appreciate the submission. This Court, in the judgment referred to above, in paragraph-19, has clarified that the directions which are explicit in the judgment or "are plainly self-evident" can be taken into account for the purpose of consideration as to whether there has been any disobedience or wilful violation of the same. Prima facie, we are of the view that learned Single Judge has taken note only of the plainly self-evident facts while issuing the Rule and order regarding securing the amounts which the respondents received by way of refund from the Income-Tax Department and utilized.18. It may be seen that the order dated 23.02.2011 regarding the deposit in court was passed to secure the entire compensation from the NHAI. The court was concerned about the money to be received from the NHAI towards the compensation and appropriately protecting the same from being used by the company. Even the respondents herein had "... no objection to money being protected...". The court had, in fact, declined the request made by the respondents ... "to receive the compensation and to keep the same in fixed deposit subject to further orders of the court". The Official Liquidator was of the view that ... "the money should be deposited with the Registrar, Original Side".19. After considering the submissions of the learned Counsel appearing for the parties, the learned Single Judge, formed the opinion that ... "the submission made on behalf of the Official Liquidator is also in conformity with the submission made by Mr. S.N. Mitra, who has largest support of the parties before me (the court)". Hence, the learned Single Judge made it clear that "In that view of the matter, the National Highway Authority was restrained from making any payment on account of compensation to the company in liquidation except by way of an account payee cheque to the Registrar, Original Side of the High Court". Therefore, it is fairly clear that the court had in mind the entire compensation paid by the NHAI in respect of the land acquired by them. Since the NHAI was bound to deduct TDS, an amount of Rs. 10,55,60,331/- was paid to the Income-Tax Department. There can be no doubt whatsoever that the said amount formed part of the compensation. What the court in its order dated 23.02.2011 was requested and the court intended too was to protect the compensation amount. Merely because it goes through the Income-Tax Department, the same does not cease to be part of compensation. Even the respondents herein had submitted before the court at the time of passing the order dated 23.02.2011 that the compensation amount needed to be protected and they were willing to protect it subject to the order of the court. Therefore, the respondents, while handling of the compensation amount, had to seek orders from the court; going by the way they understood the proceedings.20. In that background of the case, we are of the view that the respondents should not have appropriated the refund they received from the Income-Tax Department. There is nothing wrong in claiming the refund. The problem is in utilising the refund received. The refund they received is actually the compensation in respect of the land acquired from the company and it is that amount which the court wanted to protect by its order dated 23.02.2011. Hence, prima facie, we are of the view that the appropriation made by the respondents of the refund amount they received from the Income-Tax Department was in violation of the order dated 23.02.2011. It appears, for that reason only, even the Division Bench declined to disturb the Rule in the contempt proceedings issued against respondents. However, the Division Bench is wholly wrong in entering a finding that there is no violation of the order dated 23.02.2011 in utilising the refund. No doubt, had the refund and subsequent appropriation been of any amount other than the compensation, there would not have been any contempt at all.21. Unfortunately, the Division Bench, in the impugned order, failed to recapitulate the background of the order dated 23.02.2011 and its own earlier orders with regard to the refusal for withdrawal by the respondents of the compensation deposited in court. Even if there be pressing needs, there could not have been any utilisation of the compensation amount without leave of the court. We find that the Division Bench has taken note of the expenditure made by the respondents of the amount they received.It may be seen that the respondents have been managing the affairs of the company for a few years despite the futile attempts made by them to withdraw the compensation lying in deposit in court.24. As held by this Court in Delhi Development Authority v. Skipper Construction Co. (P) Ltd. and another, (1996) 4 SCC 622 , and going a step further, the Court has a duty to issue appropriate directions for remedying or rectifying the things done in violation of the orders. In that regard, the Court may even take restitutive measures at any stage of the proceedings.25. In the background as above of the case, the Division Bench should not have interfered with the order dated 26.06.2015 passed by the learned Single Judge.26. We make it clear that any observations made by us are only for the purpose of this order and shall not have any bearing on the consideration by the learned Single Judge in the contempt proceedings.
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Bihar Supply Syndicate Vs. Asiatic Navigation | by the sale, the interest conveyed .4 to the alienee was to enure during the life-time of the alienor.The conclusion was therefore inevitable that the property alienated reverted to the estate of the father at the point of the death and all persons who would, but for the alienation have taken the estate were entitled to inherit the same. If the father had died before the Hindu Succession Act, 1956 was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act the estate devolved upon the three sons, the widow and the two daughters. It was further held that the High Court was therefore in error in holding that because in the year 1920 the wife and daughters of the alienor were incompetent to challenge the alienation of ancestral property by the father, they could not, after the enactment of the Hindu Succession Act inherit the estate when succession opened after that Act came to force. This Court further held that the High Court was equally in error in holding that because the widow and daughters had not filed an appeal or cross-objection against the decree of the lower courts, they were not entitled to any relief. The sons, the daughters and the widow of the alienor had filed the suit for a decree for possession of the entire property and their claim was that the alienee had no subsisting interest. The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees were unable to convince the court that they had any subsisting interest in the property in dispute after the death of the alie nor the court was competent under Order 41 Rule 33 of the Code of Civil Procedure to adjust the rights between the sons, the daughters and the widows of the alienor in that property. In Order 41 Rule 33 the expression "which ought to have been passed" means "what ought in law to have been passed". If the appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the justice of the case may require. 22. It may be noticed that in that case no first appeal or even the second appeal was filed on behalf of the daughters and the widow yet this Court thought it fit to grant them relief under Order 41 Rule 33 of the Code of Civil Procedure. The decision in the case of Pannalal v. State of Bombay, (supra) was followed by this Court in Mahant Dhangir and another v. Madan Mohan and others. 23. If the relief can be granted by the appellate court even when no appeal or cross-objections were filed by the respondent, surely relief can be granted by the appellate court when cross-objections have been filed by the respondent against a co-respondent. Order 41 Rule 33 of the Code of Civil Procedure reads as under:- "33. Power of Court of Appeal The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercise in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross- suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees."(emphasis added) Really speaking the Rule is in three parts. The first part confers on the appellate court very wide powers to pass such orders in appeal as the case may require. The second part contemplates that this wide power will be exercised by the appellate court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The third part is where there have been decrees in cross-suits or where two or more decrees are passed in one suit, this power is directed to be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.The present case falls within the third part of Rule 33 of Order 41 of the Code of Civil Procedure. 24. We are of the view that on the facts and circumstances of this case it was a fit case for the High Court to have exercised power under Order 41 Rule 33 to set aside the decree passed by the trial court against defendant No.3 without having discussed any issue against defendant No.3 and to decide the case itself. We also thought of remanding back the matter to the High Court but we find that the facts are simple and lie in narrow compass and show total non- liability of defendant No.3 to the claim put forward by the plaintiff against it. As we have noticed earlier no cause of action is established against defendant No.3 who merely sold salt to the plaintiff and introduced defendant No.2, the Charter Party to the plaintiff. The plaintiff thereafter directly dealt with defendant No.2 by paying the freight to defendant No.2 and by obtaining the Bill of Lading in its own name. The property in goods had already passed on to the plaintiff before it obtained the Bill of Lading. | 0[ds]The policy remained a typical Marine Voyage Policy with Institute Cargo Clauses (FPA) and in the absence of loss due to perils of the sea, the Insurance Company was not liable. We are also in agreement with the view of the High Court that it was not a case of abandonment of the goods because of the perils of the sea. We are also in agreement with theview of the High Court that it was not a case of abandonment of thegoods. In fact the plaintiff gave the consent for permitting the sale of cargo and to recover the value thereof It. is axiomatic that the burden was on the plaintiff to p rove the loss due to perils of the sea and on the facts of the case, at no stage, such a burden was shifted on Insurance Company to prove otherwise. Under Section 2(a) of the Marine Insurance-Act 1963 (Act No.11 of 1963) (shortly stated t he Act) a "contract of Marine Insurance" means a contract of Marine Insurance as defined by Section 3. Section 3 defines that a contract of Marine Insurance is an agreement whereby the insurer undertakes to indemnify the assured, in the manner and to the extent thereby agreed, against marine losses, that is to say the losses incidental to marine adventure. "Marine adventure" is also defined in the Act under Section 2 and includes any adventure where (i) any insurable property is ex posed to maritime perils; (ii) the earnings or acquisition of any freight, passage money, commission, profit or other pecuniary benefit, or the security for any advances, loans, or disbursements is endangered by the exposure of insurable property to maritime perils; (iii) any liability to a third party may be incurred by the owner of, or other person interested in or responsible for, insurable property by reason of maritime perils. "Maritime perils" is again defined in Section 2(e) and means the perils consequent on, or incidental to, the navigation of the sea, that is to say perils of the seas, fire, war perils, pirates, rovers, thieves, captures, seizures, restraints and detainments of princes and peoples, jettisons, barratry and any other perils which are either of the like kind of may be designated by the policy. It is thus clear, after knowing the fact, that we are dealing with a Marine Insurance Policy with Institute Cargo Clauses (FPA) attached against the Insurance Company , it is the duty of the plaintiff to prove as a fact that the cargo was lost due to perils of the sea. Since the finding of the High Court is that no sea water entered in the engine room and the fact that the cargo was intact even after the ship was towed to Vishakhapatnam showed that no sea water entered the ship and, therefore, the loss to the plaintiff was not on account of perils of the sea and the suit of the plaintiff against the Insurance Company i.e. defendant No. 4 was rightly dismissed by the Highare now left with the appeal filed by M/s. United Salt Works and Industries Ltd., who was defendant No.3 in the suit. It is most unfortunate that though the trial court framed issue s but without any discussions gave findings on those issues against defendant No.3. The High Court on the cross-objections filed by the appellant took the view that the cross-objections were not covered by the provisions of Order 41 Rule 22, of the Code of Civil Procedure and also took, the view that no case had been made out for granting relief to defendant No. 3 inspite of the provisions contained in Order 41 Rule 33 of the Code of Civilwill be noticed that a part from the fact that defendant No.3 was merely the seller of the salt to the plaintiff and had introduced defendant No.2 to the plaintiff, he had no other role in the actual carriage of the goods by the ship concerned. the plaintiff was dealing itself directly with defendant No.2. The plaintiff directly paid the freight of the voyage to defendant No.2. The plaintiff took the Bill of Lading in its own name itself. Thus there was no cause of action whatsoever against defendant No.3, yet the trial court without any discussions, decreed the suit against defendant No.3 along with the decree against defendants 1, 2are in agreement with the High Court that the cross- objections filed by defendant No.4 against the plaintiff were not maintainable. However, we are not in agreement with the High Court that the provisions of Order 41 Rule 33 of the Code of Civil Procedure were not applicable. The High Court noticed the decisions of this Court in Choudhary Sadu ( dead) by L.Rs. v. State of Bihar, and Mahant Dhangir and another v. Shri Madan Mohan and others, but felt that it could not grant relief to defendant No.3. In the Constitution Bench decision of this Court in Pannal al v. State of Bombay and others, the facts were that the appellant therein had brought three suits claiming full payment with interest in respect of three hospitals constructed by him in execution of three separate contract s. The trial court decreed the suits for part of his claim against the State of Madhya Pradesh and held that other defendants were not liable, and accordingly dismissed the suits against them. On appeals preferred by the State of Madhya Pradesh the High Court set aside the decree against the State Government and allowed the appeals with costs. The plaintiff at that stage prayed for leave of the High Court to file a cross objection and also for decrees to be passed against the Deputy Commissioner under Order 41 Rule 33 of the Code of Civil Procedure, which was rejected and all the suits were dismissed. It was inter alia urged that the High Court ought to have granted relief against such of the other defendants as it thought fit under Order 41 Rule 33 of the Code of Civil Procedure. This Court held that the wide wording of Order 41 Rule 33 empowers the appellate court to make whatever order it thinks fit, not only as between the appellants and the respondent but also as between a respondent and a respondent. In could not be said that if a party who could have filed a cross-objection under Order 41 Rule 22 did not do so, the appeal court could under no circumstances give him relief under the provisions of Order 41 Rule 33. Order 41 Rule 22 permits as a general rule, respondent to prefer an objection directed only against the appellant and it is only in exceptional cases that an objection under Order 41 Rule 22 can be directed against the other respondents . On the facts of these cases the High Court refused to exercise its powers under Order 41 Rule 33 on an incorrect rule of the law and so the appeal must be remanded to the High Court for decision what relief should be granted to the plaintiff under Order 41 Rule 33 of the Code of CivilProvisions of Order 41 Ruledealing with the power the appellate court of grant relief to parties to suit who have not appealed or filed cross-objections came up for consideration before this Court in Giani Ram and others v. Ramji Lal and others. The facts of that case may be noticed. Under the Punjab customary law the female heirs were not entitled to challenge a sale of ancestral property by a male owner. The father sold property in 1916 without legal necessity. Son filed suit in 1920 and obtained a declaratory decree that the sale would not enure beyond the life-time of his father. In the meantime in 1956 Hindu Succession Act, 1956 cam e into force giving equal rights to females and the daughters and widows were also recognised as the heirs. Father died in 1959 and the question arose of the right of the family to sue for possession of the alienated property from the purchaser on the basis of the decree obtained by son. After the death of the father, the three sons, - the widow and the daughters filed a suit for possession of the alienates land on the basis of the decree obtained by the son in 1920. Under Section 8 of the Punjab Custom (Power to Contest) Act 1 of 1920 only those competent to contest an alienation could take advantage of a decree obtained by a reversioner. The trial court passed a decree for a half share of the suit property in favour of the son only, holding that the female heirs of the alienor were not entitled to take advantage of the decree passed in the suit in 1920. The District Court modified the decree by decreeing the suit in respect of the whole property in favour of the son. In second appeal the High Court restored the decree of the trial court holding that the claim of the female heirs of the alienor could not be upheld, firstly because of the Punjab customary law and Section 8 of Punjab Custom (Power to Contest) Act 1 of 1920 and secondly because they had not filed any appeals against the order of the lower courts. In appeals by special leave before this Court it was held by Shah, J. (i) that the preliminary objections raised by the alienees that the suit in its entirety should have been dismissed because by the enactment of the Hindu Succession Act father was deemed to be a full owner and notwithstanding the decree of 1920 his son had after that Act no subsisting reversionary interest in the property, must stand rejected. There is nothing in the Hindu Succession Act which retrospectively enlarges the power of a holder of ancestral land or nullifies a decree passed before the Act; (ii) under the customary law of Punjab the wife and the daughter of a holder of ancestral property could not sue to obtain a declaration that the alienation of ancestral property will not bind the reversioners after the death of the alienor. But a declaratory decree obtained in a suit instituted by a reversioner competent to sue has the affect of restoring the property alienated to the estate of the alienors. This Court took the view that the effect of the declaratory decree in the suit filed by the son i n 1920 was merely to declare that by the sale, the interest conveyed .4 to the alienee was to enure during the life-time of the alienor.The conclusion was therefore inevitable that the property alienated reverted to the estate of the father at the point of the death and all persons who would, but for the alienation have taken the estate were entitled to inherit the same. If the father had died before the Hindu Succession Act, 1956 was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act the estate devolved upon the three sons, the widow and the two daughters. It was further held that the High Court was therefore in error in holding that because in the year 1920 the wife and daughters of the alienor were incompetent to challenge the alienation of ancestral property by the father, they could not, after the enactment of the Hindu Succession Act inherit the estate when succession opened after that Act came to force. This Court further held that the High Court was equally in error in holding that because the widow and daughters had not filed an appeal or cross-objection against the decree of the lower courts, they were not entitled to any relief. The sons, the daughters and the widow of the alienor had filed the suit for a decree for possession of the entire property and their claim was that the alienee had no subsisting interest. The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees were unable to convince the court that they had any subsisting interest in the property in dispute after the death of the alie nor the court was competent under Order 41 Rule 33 of the Code of Civil Procedure to adjust the rights between the sons, the daughters and the widows of the alienor in that property. In Order 41 Rule 33 the expression "which ought to have been passed" means "what ought in law to have been passed". If the appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the justice of the case maymay be noticed that in that case no first appeal or even the second appeal was filed on behalf of the daughters and the widow yet this Court thought it fit to grant them relief under Order 41 Rule 33 of the Code of Civil Procedure. The decision in the case of Pannalal v. State of Bombay, (supra) was followed by this Court in Mahant Dhangir and another v. Madan Mohan andthe relief can be granted by the appellate court even when no appeal or cross-objections were filed by the respondent, surely relief can be granted by the appellate court when cross-objections have been filed by the respondent against a co-respondent. Order 41 Rule 33 of the Code of Civil Procedure reads asPower of Court of Appeal The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercise in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross- suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees."y speaking the Rule is in three parts. The first part confers on the appellate court very wide powers to pass such orders in appeal as the case may require. The second part contemplates that this wide power will be exercised by the appellate court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The third part is where there have been decrees in cross-suits or where two or more decrees are passed in one suit, this power is directed to be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.The present case falls within the third part of Rule 33 of Order 41 of the Code of Civilare of the view that on the facts and circumstances of this case it was a fit case for the High Court to have exercised power under Order 41 Rule 33 to set aside the decree passed by the trial court against defendant No.3 without having discussed any issue against defendant No.3 and to decide the case itself. We also thought of remanding back the matter to the High Court but we find that the facts are simple and lie in narrow compass and show total non- liability of defendant No.3 to the claim put forward by the plaintiff against it. As we have noticed earlier no cause of action is established against defendant No.3 who merely sold salt to the plaintiff and introduced defendant No.2, the Charter Party to the plaintiff. The plaintiff thereafter directly dealt with defendant No.2 by paying the freight to defendant No.2 and by obtaining the Bill of Lading in its own name. The property in goods had already passed on to the plaintiff before it obtained the Bill of Lading. | 0 | 7,225 | 2,915 | ### Instruction:
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by the sale, the interest conveyed .4 to the alienee was to enure during the life-time of the alienor.The conclusion was therefore inevitable that the property alienated reverted to the estate of the father at the point of the death and all persons who would, but for the alienation have taken the estate were entitled to inherit the same. If the father had died before the Hindu Succession Act, 1956 was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act the estate devolved upon the three sons, the widow and the two daughters. It was further held that the High Court was therefore in error in holding that because in the year 1920 the wife and daughters of the alienor were incompetent to challenge the alienation of ancestral property by the father, they could not, after the enactment of the Hindu Succession Act inherit the estate when succession opened after that Act came to force. This Court further held that the High Court was equally in error in holding that because the widow and daughters had not filed an appeal or cross-objection against the decree of the lower courts, they were not entitled to any relief. The sons, the daughters and the widow of the alienor had filed the suit for a decree for possession of the entire property and their claim was that the alienee had no subsisting interest. The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees were unable to convince the court that they had any subsisting interest in the property in dispute after the death of the alie nor the court was competent under Order 41 Rule 33 of the Code of Civil Procedure to adjust the rights between the sons, the daughters and the widows of the alienor in that property. In Order 41 Rule 33 the expression "which ought to have been passed" means "what ought in law to have been passed". If the appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the justice of the case may require. 22. It may be noticed that in that case no first appeal or even the second appeal was filed on behalf of the daughters and the widow yet this Court thought it fit to grant them relief under Order 41 Rule 33 of the Code of Civil Procedure. The decision in the case of Pannalal v. State of Bombay, (supra) was followed by this Court in Mahant Dhangir and another v. Madan Mohan and others. 23. If the relief can be granted by the appellate court even when no appeal or cross-objections were filed by the respondent, surely relief can be granted by the appellate court when cross-objections have been filed by the respondent against a co-respondent. Order 41 Rule 33 of the Code of Civil Procedure reads as under:- "33. Power of Court of Appeal The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercise in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross- suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees."(emphasis added) Really speaking the Rule is in three parts. The first part confers on the appellate court very wide powers to pass such orders in appeal as the case may require. The second part contemplates that this wide power will be exercised by the appellate court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The third part is where there have been decrees in cross-suits or where two or more decrees are passed in one suit, this power is directed to be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.The present case falls within the third part of Rule 33 of Order 41 of the Code of Civil Procedure. 24. We are of the view that on the facts and circumstances of this case it was a fit case for the High Court to have exercised power under Order 41 Rule 33 to set aside the decree passed by the trial court against defendant No.3 without having discussed any issue against defendant No.3 and to decide the case itself. We also thought of remanding back the matter to the High Court but we find that the facts are simple and lie in narrow compass and show total non- liability of defendant No.3 to the claim put forward by the plaintiff against it. As we have noticed earlier no cause of action is established against defendant No.3 who merely sold salt to the plaintiff and introduced defendant No.2, the Charter Party to the plaintiff. The plaintiff thereafter directly dealt with defendant No.2 by paying the freight to defendant No.2 and by obtaining the Bill of Lading in its own name. The property in goods had already passed on to the plaintiff before it obtained the Bill of Lading.
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declaratory decree in the suit filed by the son i n 1920 was merely to declare that by the sale, the interest conveyed .4 to the alienee was to enure during the life-time of the alienor.The conclusion was therefore inevitable that the property alienated reverted to the estate of the father at the point of the death and all persons who would, but for the alienation have taken the estate were entitled to inherit the same. If the father had died before the Hindu Succession Act, 1956 was enacted the three sons would have taken the estate to the exclusion of the widow and the two daughters. After the enactment of the Hindu Succession Act the estate devolved upon the three sons, the widow and the two daughters. It was further held that the High Court was therefore in error in holding that because in the year 1920 the wife and daughters of the alienor were incompetent to challenge the alienation of ancestral property by the father, they could not, after the enactment of the Hindu Succession Act inherit the estate when succession opened after that Act came to force. This Court further held that the High Court was equally in error in holding that because the widow and daughters had not filed an appeal or cross-objection against the decree of the lower courts, they were not entitled to any relief. The sons, the daughters and the widow of the alienor had filed the suit for a decree for possession of the entire property and their claim was that the alienee had no subsisting interest. The District Court accepted that claim and granted a decree in favour of the three sons for the entire property which was alienated. If the alienees were unable to convince the court that they had any subsisting interest in the property in dispute after the death of the alie nor the court was competent under Order 41 Rule 33 of the Code of Civil Procedure to adjust the rights between the sons, the daughters and the widows of the alienor in that property. In Order 41 Rule 33 the expression "which ought to have been passed" means "what ought in law to have been passed". If the appellate Court is of the view that any decree which ought in law to have been passed was in fact not passed by the subordinate court, it may pass or make such further or other decree or order as the justice of the case maymay be noticed that in that case no first appeal or even the second appeal was filed on behalf of the daughters and the widow yet this Court thought it fit to grant them relief under Order 41 Rule 33 of the Code of Civil Procedure. The decision in the case of Pannalal v. State of Bombay, (supra) was followed by this Court in Mahant Dhangir and another v. Madan Mohan andthe relief can be granted by the appellate court even when no appeal or cross-objections were filed by the respondent, surely relief can be granted by the appellate court when cross-objections have been filed by the respondent against a co-respondent. Order 41 Rule 33 of the Code of Civil Procedure reads asPower of Court of Appeal The Appellate Court shall have power to pass any decree and make any order which ought to have been passed or make and to pass or made such further or other decree or order as the case may require, and this power may be exercised by the Court notwithstanding that the appeal is as to part only of the decree and may be exercise in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection and may, where there have been decrees in cross- suits or where two or more decrees are passed in one suit, be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees."y speaking the Rule is in three parts. The first part confers on the appellate court very wide powers to pass such orders in appeal as the case may require. The second part contemplates that this wide power will be exercised by the appellate court notwithstanding that the appeal is as to part only of the decree and may be exercised in favour of all or any of the respondents or parties, although such respondents or parties may not have filed any appeal or objection. The third part is where there have been decrees in cross-suits or where two or more decrees are passed in one suit, this power is directed to be exercised in respect of all or any of the decrees, although an appeal may not have been filed against such decrees.The present case falls within the third part of Rule 33 of Order 41 of the Code of Civilare of the view that on the facts and circumstances of this case it was a fit case for the High Court to have exercised power under Order 41 Rule 33 to set aside the decree passed by the trial court against defendant No.3 without having discussed any issue against defendant No.3 and to decide the case itself. We also thought of remanding back the matter to the High Court but we find that the facts are simple and lie in narrow compass and show total non- liability of defendant No.3 to the claim put forward by the plaintiff against it. As we have noticed earlier no cause of action is established against defendant No.3 who merely sold salt to the plaintiff and introduced defendant No.2, the Charter Party to the plaintiff. The plaintiff thereafter directly dealt with defendant No.2 by paying the freight to defendant No.2 and by obtaining the Bill of Lading in its own name. The property in goods had already passed on to the plaintiff before it obtained the Bill of Lading.
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SHANKAR Vs. THE STATE OF MAHARASHTRA | BANUMATHI, J.(1) Leave granted.(2) Being aggrieved by the conviction under Sections 436 and 323 I.P.C. read with Section 34 I.P.C. the appellants no.1 to 3 have preferred this appeal.(3) Appellant no.1-Shankar @ Shankar Harale and respondent no.2-Namdeo @ Namdeo Satwaji Harale (complainant) are the real brothers. Their agricultural lands are adjacent to each other and there was dispute between them on account of boundary of the field. On 21 st May, 2009, respondent no.2-Namdeo (complainant) along with his two sons went to the Tehsil Office. At about 5.00 p.m. the appellants went to the hut of the second respondent (complainant) and there was wordy quarrel between the appellants and Dhondubai (PW-3) and Kanupatra @ Kanopatra (PW-4) who are wife and daughter-in-law of the complainant. During the wordy quarrel, appellant no.2-Vivek pelted stones and the same hit on Dhondubai (PW-3). On being exhorted by appellant no.1-Shankar, appellant no.3-Parvatibai wife of appellant no. 1 set fire to the house of the second respondent-complainant. On the complaint lodged by the second respondent-Namdeo law was set in motion. On completion of investigation charge-sheet was filed against the appellants under sections 436, 323, 504 and 506 IPC.(4) Based on the evidence of injured witness Dhondubai (PW-3) and Kanupatra (PW-4) and also taking into consideration the evidence of Dr. Dattarao Mirzapure (PW-8) who issued injury certificate to Dhondubai (PW-3), the Trial Court convicted the appellants under Sections 436 read with section 34 IPC and 323 I.P.C. read with Section 34 I.P.C. and sentenced them to undergo rigorous imprisonment for five years and six months respectively.(5) In appeal, the High Court affirmed the conviction of the appellants under Section 436 I.P.C. read with Section 34 I.P.C. and the conviction under Section 323 I.P.C. and also maintained the sentence of imprisonment on each of the appellants-accused. Being aggrieved, the appellants preferred this appeal.(6) We have heard Mr. Sudhanshu S. Choudhari, learned counsel appearing for the appellants, Mr. Venkata Krishna Kunduru, learned counsel appearing for the respondent-State and Mr. Shakul R. Ghatole, learned counsel appearing for respondent no.2 (complainant) and also perused the impugned judgment and the evidence/materials on record.(7) Dhondubai (PW-3) and Kanupatra (PW-4) are the eye- witnesses to the occurrence. In her evidence Dhondubai (PW-3) has stated that appellant no.2-Vivek pelted stones towards her which hit on her head and that she sustained injuries. Dhondubai (PW-3) further stated that on being exhorted by appellant no.1-Shankar Harale appellant no.3-Parvatibai set fire to her house. The evidence of Dhoundubai (PW-3) is corroborated by Kanupatra (PW-4), daughter-in-law of the second respondent-Namdeo (complainant).(8) By a careful consideration of evidence of Dhondubai (PW-3) and Kanupatra (PW-4), it is seen that appellant no.2-Vivek who is said to have wordy quarrel and pelted stones on Dhondubai (PW-3). The overt act of setting fire to the house is not attributed to him by either of the witnesses. Equally we do not find any evidence to hold that the second appellant-Vivek shared only common intention with appellants no.1 and 3 to invoke section 34 I.P.C. and to maintain the conviction of the second appellant-Vivek under Section 436 I.P.C. read with Section 34 I.P.C. The conviction of the second appellant-Vivek under Section 436 read with Section 34 I.P.C. is therefore set aside and appeal of second appellant which is allowed to that extent.(9) However, the conviction of appellant no.1-Shankar Harale and appellant no.3-Parvatibai under Section 436 read with Section 34 I.P.C. is confirmed. But so far as the act of the second appellant-Vivek hitting Dhondubai (PW-3) with the stone, the conviction of the second appellant-Vivek under Section 323 I.P.C. is sustained.(10) The appellants have filed a memo of compromise stating therein that they have compromised the matter with the second respondent-Namdeo (complainant). Mr. Shakul R. Ghatole, learned counsel appearing for the second respondent, has stated that the second respondent-Namdeo (complainant) is an aged person and he has reconciled with his brother-appellant no.1, Shankar Harale and voluntarily entered into compromise and submitted that the said compromise be taken into consideration.(11) In Ishwar Singh v. State of Madhya Pradesh, (2008) 15 SCC 667 , this Court held that in a non-compoundable offence the compromise between the parties is a relevant factor to be taken into consideration in considering the quantum of sentence. In paras 13 and 14 of Ishwar Singh (supra) it was held as under :?13. In Jetha Ram v. State of Rajasthan (2006) 9 SCC 255 , Murugesan v. Ganapathy Velar (2001) 10 SCC 504 and Ishwarlal v. State of M.P. (2008) 15 SCC 671 this Court, while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellant-accused to already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan 1990 Supp SCC 681 such offence was ordered to be compounded. 14. In our considered opinion, it would not be appropriate to order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned counsel for the appellant deserves consideration that while imposing substantive sentence, the factum of compromise between the parties is indeed a relevant circumstance which the Court may keep in mind.?Insofar as the conviction of appellant no.1-Shankar Harale and appellant no.3-Parvatibai under Section 436 I.P.C. read with Section 34 IPC it would not be appropriate to compound the offence which is not compoundable under the Code ignoring the statutory provisions. | 1[ds](8) By a careful consideration of evidence of Dhondubai (PW-3) and Kanupatra (PW-4), it is seen that appellant no.2-Vivek who is said to have wordy quarrel and pelted stones on Dhondubai (PW-3). The overt act of setting fire to the house is not attributed to him by either of the witnesses. Equally we do not find any evidence to hold that the second appellant-Vivek shared only common intention with appellants no.1 and 3 to invoke section 34 I.P.C. and to maintain the conviction of the second appellant-Vivek under Section 436 I.P.C. read with Section 34 I.P.C. The conviction of the second appellant-Vivek under Section 436 read with Section 34 I.P.C. is therefore set aside and appeal of second appellant which is allowed to that extent.(9) However, the conviction of appellant no.1-Shankar Harale and appellant no.3-Parvatibai under Section 436 read with Section 34 I.P.C. is confirmed. But so far as the act of the second appellant-Vivek hitting Dhondubai (PW-3) with the stone, the conviction of the second appellant-Vivek under Section 323 I.P.C. isas the conviction of appellant no.1-Shankar Harale and appellant no.3-Parvatibai under Section 436 I.P.C. read with Section 34 IPC it would not be appropriate to compound the offence which is not compoundable under the Code ignoring the statutory provisions. | 1 | 1,079 | 242 | ### 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:
BANUMATHI, J.(1) Leave granted.(2) Being aggrieved by the conviction under Sections 436 and 323 I.P.C. read with Section 34 I.P.C. the appellants no.1 to 3 have preferred this appeal.(3) Appellant no.1-Shankar @ Shankar Harale and respondent no.2-Namdeo @ Namdeo Satwaji Harale (complainant) are the real brothers. Their agricultural lands are adjacent to each other and there was dispute between them on account of boundary of the field. On 21 st May, 2009, respondent no.2-Namdeo (complainant) along with his two sons went to the Tehsil Office. At about 5.00 p.m. the appellants went to the hut of the second respondent (complainant) and there was wordy quarrel between the appellants and Dhondubai (PW-3) and Kanupatra @ Kanopatra (PW-4) who are wife and daughter-in-law of the complainant. During the wordy quarrel, appellant no.2-Vivek pelted stones and the same hit on Dhondubai (PW-3). On being exhorted by appellant no.1-Shankar, appellant no.3-Parvatibai wife of appellant no. 1 set fire to the house of the second respondent-complainant. On the complaint lodged by the second respondent-Namdeo law was set in motion. On completion of investigation charge-sheet was filed against the appellants under sections 436, 323, 504 and 506 IPC.(4) Based on the evidence of injured witness Dhondubai (PW-3) and Kanupatra (PW-4) and also taking into consideration the evidence of Dr. Dattarao Mirzapure (PW-8) who issued injury certificate to Dhondubai (PW-3), the Trial Court convicted the appellants under Sections 436 read with section 34 IPC and 323 I.P.C. read with Section 34 I.P.C. and sentenced them to undergo rigorous imprisonment for five years and six months respectively.(5) In appeal, the High Court affirmed the conviction of the appellants under Section 436 I.P.C. read with Section 34 I.P.C. and the conviction under Section 323 I.P.C. and also maintained the sentence of imprisonment on each of the appellants-accused. Being aggrieved, the appellants preferred this appeal.(6) We have heard Mr. Sudhanshu S. Choudhari, learned counsel appearing for the appellants, Mr. Venkata Krishna Kunduru, learned counsel appearing for the respondent-State and Mr. Shakul R. Ghatole, learned counsel appearing for respondent no.2 (complainant) and also perused the impugned judgment and the evidence/materials on record.(7) Dhondubai (PW-3) and Kanupatra (PW-4) are the eye- witnesses to the occurrence. In her evidence Dhondubai (PW-3) has stated that appellant no.2-Vivek pelted stones towards her which hit on her head and that she sustained injuries. Dhondubai (PW-3) further stated that on being exhorted by appellant no.1-Shankar Harale appellant no.3-Parvatibai set fire to her house. The evidence of Dhoundubai (PW-3) is corroborated by Kanupatra (PW-4), daughter-in-law of the second respondent-Namdeo (complainant).(8) By a careful consideration of evidence of Dhondubai (PW-3) and Kanupatra (PW-4), it is seen that appellant no.2-Vivek who is said to have wordy quarrel and pelted stones on Dhondubai (PW-3). The overt act of setting fire to the house is not attributed to him by either of the witnesses. Equally we do not find any evidence to hold that the second appellant-Vivek shared only common intention with appellants no.1 and 3 to invoke section 34 I.P.C. and to maintain the conviction of the second appellant-Vivek under Section 436 I.P.C. read with Section 34 I.P.C. The conviction of the second appellant-Vivek under Section 436 read with Section 34 I.P.C. is therefore set aside and appeal of second appellant which is allowed to that extent.(9) However, the conviction of appellant no.1-Shankar Harale and appellant no.3-Parvatibai under Section 436 read with Section 34 I.P.C. is confirmed. But so far as the act of the second appellant-Vivek hitting Dhondubai (PW-3) with the stone, the conviction of the second appellant-Vivek under Section 323 I.P.C. is sustained.(10) The appellants have filed a memo of compromise stating therein that they have compromised the matter with the second respondent-Namdeo (complainant). Mr. Shakul R. Ghatole, learned counsel appearing for the second respondent, has stated that the second respondent-Namdeo (complainant) is an aged person and he has reconciled with his brother-appellant no.1, Shankar Harale and voluntarily entered into compromise and submitted that the said compromise be taken into consideration.(11) In Ishwar Singh v. State of Madhya Pradesh, (2008) 15 SCC 667 , this Court held that in a non-compoundable offence the compromise between the parties is a relevant factor to be taken into consideration in considering the quantum of sentence. In paras 13 and 14 of Ishwar Singh (supra) it was held as under :?13. In Jetha Ram v. State of Rajasthan (2006) 9 SCC 255 , Murugesan v. Ganapathy Velar (2001) 10 SCC 504 and Ishwarlal v. State of M.P. (2008) 15 SCC 671 this Court, while taking into account the fact of compromise between the parties, reduced sentence imposed on the appellant-accused to already undergone, though the offences were not compoundable. But it was also stated that in Mahesh Chand v. State of Rajasthan 1990 Supp SCC 681 such offence was ordered to be compounded. 14. In our considered opinion, it would not be appropriate to order compounding of an offence not compoundable under the Code ignoring and keeping aside statutory provisions. In our judgment, however, limited submission of the learned counsel for the appellant deserves consideration that while imposing substantive sentence, the factum of compromise between the parties is indeed a relevant circumstance which the Court may keep in mind.?Insofar as the conviction of appellant no.1-Shankar Harale and appellant no.3-Parvatibai under Section 436 I.P.C. read with Section 34 IPC it would not be appropriate to compound the offence which is not compoundable under the Code ignoring the statutory provisions.
### Response:
1
### Explanation:
(8) By a careful consideration of evidence of Dhondubai (PW-3) and Kanupatra (PW-4), it is seen that appellant no.2-Vivek who is said to have wordy quarrel and pelted stones on Dhondubai (PW-3). The overt act of setting fire to the house is not attributed to him by either of the witnesses. Equally we do not find any evidence to hold that the second appellant-Vivek shared only common intention with appellants no.1 and 3 to invoke section 34 I.P.C. and to maintain the conviction of the second appellant-Vivek under Section 436 I.P.C. read with Section 34 I.P.C. The conviction of the second appellant-Vivek under Section 436 read with Section 34 I.P.C. is therefore set aside and appeal of second appellant which is allowed to that extent.(9) However, the conviction of appellant no.1-Shankar Harale and appellant no.3-Parvatibai under Section 436 read with Section 34 I.P.C. is confirmed. But so far as the act of the second appellant-Vivek hitting Dhondubai (PW-3) with the stone, the conviction of the second appellant-Vivek under Section 323 I.P.C. isas the conviction of appellant no.1-Shankar Harale and appellant no.3-Parvatibai under Section 436 I.P.C. read with Section 34 IPC it would not be appropriate to compound the offence which is not compoundable under the Code ignoring the statutory provisions.
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S. Rama Iyer Vs. Sundarasa Ponnapoondar | its jurisdiction, we must examine the provisions of the Act.5. The Act came into force of September 27, 1955 and was amended from time to time. Originally, the Act was temporary, recently it has been made permanent. The Act was passed for the protection of certain cultivating tenants from eviction. Section 2 defines, inter alia, cultivating tenant and landlord. Cultivating tenant is a person who carries on personal cultivation on the land under a tenancy agreement, express or implied, and includes any person who continues in possession of the land after determination of the tenancy agreement and the heirs of such person. Landlord means the person entitled to evict the cultivating tenant from his holding or a part of it. Section 3 (1) protects the cultivating tenant from eviction at the instance of the landlord whether in execution of a decree or order of Court or otherwise. Section 3 (2) sets out the grounds of eviction, and if one of these grounds is made out, the protection from eviction given by S. 3 (1) is taken away. Section 3 (3) enables the cultivating tenant to deposit the rent in Court. Section 3 (3) (b) requires the Court to cause notice of the deposit to be issued to the landlord and determine, after a summary enquiry, whether the amount of rent due from the cultivating tenant. The expression Court in S,. 3 (3) means the Court which passed the decree or order for eviction, or where there is no such decree or order, the Revenue Divisional Officer. The Act also vests jurisdiction in the Revenue Divisional Officer of entertain and decide an application by the landlord for eviction of a cultivating tenant- S. 3 (4), an application by cultivating tenants evicted before and after the commencement of the Act for restoration of possession-Ss. 4 (1) and 4 (5), an application by the landlord for the resumption of land for personal cultivation-S. 4-A (1), an application by the cultivating tenant for restoration of possession from a landlord so resuming possession-S. 4-A. (2), applications for resumption of possession by the landlord from his cultivating tenant and by the cultivating tenant from his sub-tenant provided the applicant was a member of the Armed Forces-Ss. 4-AA (2) and 4-AA (3). On receipt of any application under Ss. 3 (4), 4 (1), 4 (5), 4-A (1), 4-A (2), 4-AA (2) and 4-AA (3), the Revenue Divisional Officer is required to hold a summary enquiry into the matter and pass necessary orders after giving a reasonable opportunity to the landlord and the tenant to make their representations. Section 4-B empowers the Revenue Divisional Officer in the case of any tenancy to impose a penalty on the landlord or the cultivating tenant for his refusal to sign or failure to lodge a lease deed in accordance with its provisions. Section 6 provides that no Civil Court shall, except to the extent specified in S. 3 (3), have jurisdiction in respect of any matter which the Revenue divisional Officer is empowered by or under the Act to determine, or shall grant an injunction in respect of any action taken or to be taken under such power. Section 6-B requires the Civil Court to transfer to the Revenue Divisional Officer any suit for possession or injunction in relation to any land pending before it, if it is satisfied that the defendant is a cultivating tenant. We have already noticed S. 6-B, which confers powers of revision on the High Court. Section 7 gives the State Government the power to make rules.6. The Act gives generous protection to cultivating tenants from eviction, and severely restricts the right of landlords to resume possession of their land from their cultivating tenants. In case of disputes between the landlord and the cultivating tenant, the Revenue Divisional Officer is authorised to entertain and decide applications by the landlord for eviction and resumption of possession and by the cultivating tenant for restoration of possession and to impose penalties on the landlord or the tenant for infraction of S. 4-B.To attract the jurisdiction of the Revenue Divisional Officer, there must be a dispute between a landlord and cultivating tenant. The existence of the relation of landlord and cultivating tenant between the contending parties is the essential condition for the assumption of jurisdiction by the Revenue Divisional Officer in all proceedings under the Act. The Tribunal can exercise its jurisdiction under the Act only if such relationship exists. If the jurisdiction of the Tribunal is challenged, it must enquire into the existence of the preliminary fact and decide if it has jurisdiction. But its decision on the existence of this preliminary fact is not final; such a decision is subject to review by the High Court in its revisional jurisdiction under S. 6-B.The enquiry by the Tribunal is summary, there is no provision for appeal form its decision, and the legislature could not have intended that its decision on this preliminary fact involving a question of title would be final and not subject to the overriding powers of revision by the High Court.7. In the present case, the Tribunal found that the respondent was not the cultivating tenant of the appellant, and on such finding declined to exercise the jurisdiction vested in it by S. 3 (3) to determine the correct amount of rent due by the respondent to the appellant. The High Court had power to enquire into the correctness of this decision, and on finding that the tenancy existed and the Tribunal had erroneously refused to exercise the jurisdiction vested in it by S. 3 (3), the High Court could set aside the decision under sub-s. (b) of S. 115 of the Code read with S. 6-B of the Act. On a review of the entire oral and documentary evidence, the High Court found that the respondent was the cultivating tenant of the appellant. It is not shown that this finding is erroneous. We see no reason for interfering with the decision of the High Court. | 0[ds]6. The Act gives generous protection to cultivating tenants from eviction, and severely restricts the right of landlords to resume possession of their land from their cultivating tenants. In case of disputes between the landlord and the cultivating tenant, the Revenue Divisional Officer is authorised to entertain and decide applications by the landlord for eviction and resumption of possession and by the cultivating tenant for restoration of possession and to impose penalties on the landlord or the tenant for infraction of S. 4-B.To attract the jurisdiction of the Revenue Divisional Officer, there must be a dispute between a landlord and cultivating tenant. The existence of the relation of landlord and cultivating tenant between the contending parties is the essential condition for the assumption of jurisdiction by the Revenue Divisional Officer in all proceedings under the Act. The Tribunal can exercise its jurisdiction under the Act only if such relationship exists. If the jurisdiction of the Tribunal is challenged, it must enquire into the existence of the preliminary fact and decide if it has jurisdiction. But its decision on the existence of this preliminary fact is not final; such a decision is subject to review by the High Court in its revisional jurisdiction under S. 6-B.The enquiry by the Tribunal is summary, there is no provision for appeal form its decision, and the legislature could not have intended that its decision on this preliminary fact involving a question of title would be final and not subject to the overriding powers of revision by the High Court.7. In the present case, the Tribunal found that the respondent was not the cultivating tenant of the appellant, and on such finding declined to exercise the jurisdiction vested in it by S. 3 (3) to determine the correct amount of rent due by the respondent to the appellant. The High Court had power to enquire into the correctness of this decision, and on finding that the tenancy existed and the Tribunal had erroneously refused to exercise the jurisdiction vested in it by S. 3 (3), the High Court could set aside the decision under sub-s. (b) of S. 115 of the Code read with S. 6-B of the Act. On a review of the entire oral and documentary evidence, the High Court found that the respondent was the cultivating tenant of the appellant. It is not shown that this finding is erroneous. We see no reason for interfering with the decision of the High(a) empowers the High Court to correct an erroneous assumption of jurisdiction;(b) empowers it to correct an erroneous refusal of jurisdiction. The decision of the subordinate Court on all questions of law and fact not touching its jurisdiction is final and, however, erroneous such a decision may be, it is not revisable under(a) and (b) of S. 115. On the other hand, if by an erroneous decision on a question of fact or law touching its jurisdiction, e. g., on a preliminary fact upon the existence on which its jurisdiction depends, the subordinate Court assumes a jurisdiction not vested in it by law or fails to exercise a jurisdiction so vested, its decision is not final, and is subject to review by the High Court in its revisional jurisdiction under(a) and (b) of S. 115.The question is, on which side of the line the present case lies, and whether the decision of the Revenue Divisional Officer that the respondent is not a cultivating tenant of the appellant is subject to review by the High Court in its revisional jurisdiction. The Revenue Divisional Officer is an inferior Court of limited jurisdiction functioning under the Madras Cultivating Tenants Protection Act, 1955. To ascertain the limit and extent of its jurisdiction, we must examine the provisions of the Act. | 0 | 1,972 | 692 | ### 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:
its jurisdiction, we must examine the provisions of the Act.5. The Act came into force of September 27, 1955 and was amended from time to time. Originally, the Act was temporary, recently it has been made permanent. The Act was passed for the protection of certain cultivating tenants from eviction. Section 2 defines, inter alia, cultivating tenant and landlord. Cultivating tenant is a person who carries on personal cultivation on the land under a tenancy agreement, express or implied, and includes any person who continues in possession of the land after determination of the tenancy agreement and the heirs of such person. Landlord means the person entitled to evict the cultivating tenant from his holding or a part of it. Section 3 (1) protects the cultivating tenant from eviction at the instance of the landlord whether in execution of a decree or order of Court or otherwise. Section 3 (2) sets out the grounds of eviction, and if one of these grounds is made out, the protection from eviction given by S. 3 (1) is taken away. Section 3 (3) enables the cultivating tenant to deposit the rent in Court. Section 3 (3) (b) requires the Court to cause notice of the deposit to be issued to the landlord and determine, after a summary enquiry, whether the amount of rent due from the cultivating tenant. The expression Court in S,. 3 (3) means the Court which passed the decree or order for eviction, or where there is no such decree or order, the Revenue Divisional Officer. The Act also vests jurisdiction in the Revenue Divisional Officer of entertain and decide an application by the landlord for eviction of a cultivating tenant- S. 3 (4), an application by cultivating tenants evicted before and after the commencement of the Act for restoration of possession-Ss. 4 (1) and 4 (5), an application by the landlord for the resumption of land for personal cultivation-S. 4-A (1), an application by the cultivating tenant for restoration of possession from a landlord so resuming possession-S. 4-A. (2), applications for resumption of possession by the landlord from his cultivating tenant and by the cultivating tenant from his sub-tenant provided the applicant was a member of the Armed Forces-Ss. 4-AA (2) and 4-AA (3). On receipt of any application under Ss. 3 (4), 4 (1), 4 (5), 4-A (1), 4-A (2), 4-AA (2) and 4-AA (3), the Revenue Divisional Officer is required to hold a summary enquiry into the matter and pass necessary orders after giving a reasonable opportunity to the landlord and the tenant to make their representations. Section 4-B empowers the Revenue Divisional Officer in the case of any tenancy to impose a penalty on the landlord or the cultivating tenant for his refusal to sign or failure to lodge a lease deed in accordance with its provisions. Section 6 provides that no Civil Court shall, except to the extent specified in S. 3 (3), have jurisdiction in respect of any matter which the Revenue divisional Officer is empowered by or under the Act to determine, or shall grant an injunction in respect of any action taken or to be taken under such power. Section 6-B requires the Civil Court to transfer to the Revenue Divisional Officer any suit for possession or injunction in relation to any land pending before it, if it is satisfied that the defendant is a cultivating tenant. We have already noticed S. 6-B, which confers powers of revision on the High Court. Section 7 gives the State Government the power to make rules.6. The Act gives generous protection to cultivating tenants from eviction, and severely restricts the right of landlords to resume possession of their land from their cultivating tenants. In case of disputes between the landlord and the cultivating tenant, the Revenue Divisional Officer is authorised to entertain and decide applications by the landlord for eviction and resumption of possession and by the cultivating tenant for restoration of possession and to impose penalties on the landlord or the tenant for infraction of S. 4-B.To attract the jurisdiction of the Revenue Divisional Officer, there must be a dispute between a landlord and cultivating tenant. The existence of the relation of landlord and cultivating tenant between the contending parties is the essential condition for the assumption of jurisdiction by the Revenue Divisional Officer in all proceedings under the Act. The Tribunal can exercise its jurisdiction under the Act only if such relationship exists. If the jurisdiction of the Tribunal is challenged, it must enquire into the existence of the preliminary fact and decide if it has jurisdiction. But its decision on the existence of this preliminary fact is not final; such a decision is subject to review by the High Court in its revisional jurisdiction under S. 6-B.The enquiry by the Tribunal is summary, there is no provision for appeal form its decision, and the legislature could not have intended that its decision on this preliminary fact involving a question of title would be final and not subject to the overriding powers of revision by the High Court.7. In the present case, the Tribunal found that the respondent was not the cultivating tenant of the appellant, and on such finding declined to exercise the jurisdiction vested in it by S. 3 (3) to determine the correct amount of rent due by the respondent to the appellant. The High Court had power to enquire into the correctness of this decision, and on finding that the tenancy existed and the Tribunal had erroneously refused to exercise the jurisdiction vested in it by S. 3 (3), the High Court could set aside the decision under sub-s. (b) of S. 115 of the Code read with S. 6-B of the Act. On a review of the entire oral and documentary evidence, the High Court found that the respondent was the cultivating tenant of the appellant. It is not shown that this finding is erroneous. We see no reason for interfering with the decision of the High Court.
### Response:
0
### Explanation:
6. The Act gives generous protection to cultivating tenants from eviction, and severely restricts the right of landlords to resume possession of their land from their cultivating tenants. In case of disputes between the landlord and the cultivating tenant, the Revenue Divisional Officer is authorised to entertain and decide applications by the landlord for eviction and resumption of possession and by the cultivating tenant for restoration of possession and to impose penalties on the landlord or the tenant for infraction of S. 4-B.To attract the jurisdiction of the Revenue Divisional Officer, there must be a dispute between a landlord and cultivating tenant. The existence of the relation of landlord and cultivating tenant between the contending parties is the essential condition for the assumption of jurisdiction by the Revenue Divisional Officer in all proceedings under the Act. The Tribunal can exercise its jurisdiction under the Act only if such relationship exists. If the jurisdiction of the Tribunal is challenged, it must enquire into the existence of the preliminary fact and decide if it has jurisdiction. But its decision on the existence of this preliminary fact is not final; such a decision is subject to review by the High Court in its revisional jurisdiction under S. 6-B.The enquiry by the Tribunal is summary, there is no provision for appeal form its decision, and the legislature could not have intended that its decision on this preliminary fact involving a question of title would be final and not subject to the overriding powers of revision by the High Court.7. In the present case, the Tribunal found that the respondent was not the cultivating tenant of the appellant, and on such finding declined to exercise the jurisdiction vested in it by S. 3 (3) to determine the correct amount of rent due by the respondent to the appellant. The High Court had power to enquire into the correctness of this decision, and on finding that the tenancy existed and the Tribunal had erroneously refused to exercise the jurisdiction vested in it by S. 3 (3), the High Court could set aside the decision under sub-s. (b) of S. 115 of the Code read with S. 6-B of the Act. On a review of the entire oral and documentary evidence, the High Court found that the respondent was the cultivating tenant of the appellant. It is not shown that this finding is erroneous. We see no reason for interfering with the decision of the High(a) empowers the High Court to correct an erroneous assumption of jurisdiction;(b) empowers it to correct an erroneous refusal of jurisdiction. The decision of the subordinate Court on all questions of law and fact not touching its jurisdiction is final and, however, erroneous such a decision may be, it is not revisable under(a) and (b) of S. 115. On the other hand, if by an erroneous decision on a question of fact or law touching its jurisdiction, e. g., on a preliminary fact upon the existence on which its jurisdiction depends, the subordinate Court assumes a jurisdiction not vested in it by law or fails to exercise a jurisdiction so vested, its decision is not final, and is subject to review by the High Court in its revisional jurisdiction under(a) and (b) of S. 115.The question is, on which side of the line the present case lies, and whether the decision of the Revenue Divisional Officer that the respondent is not a cultivating tenant of the appellant is subject to review by the High Court in its revisional jurisdiction. The Revenue Divisional Officer is an inferior Court of limited jurisdiction functioning under the Madras Cultivating Tenants Protection Act, 1955. To ascertain the limit and extent of its jurisdiction, we must examine the provisions of the Act.
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Kirloskar Pneumatic Company Limited Vs. V.A. More & Others | be acceded to. The submission confuses the responsibility of a company and responsibility of a factory. The directors of the company are responsible for carrying out the management and business of the company, but the company may have several factories situated at various places. It is impossible to expect the directors to be in-charge of day to day management of every factory. The ultimate control over the affairs of the factory cannot be equated with the ultimate control over the affairs of the company. The directors of the company are required to take policy decisions as to the manner in which the business of the company is to be conducted, while the affairs of the factory relate to only the manner in which the factory is to be run. The prosecution contemplated against the occupier of the factory under section 92 of the Factories Act is in respect of breaches or violations of provisions of the Act or Rules under the Factories Act and in respect of breaches of those breaches it is only the person who has ultimate control over the affairs of the factory who would be responsible. It is impossible to accede to the submission that all the directors of the Company irrespective of the fact whether they have ultimate control over the affairs of the factory should be made responsible for prosecution under section 92 of the Act. In our judgment, the amended provisions of the Factories Act do not make any departure from the settled position prior to the amendment that the occupier need not necessarily be a director of the company. The only requirement is that the person to be nominated as occupier must have the ultimate control over the affairs of the factory and that aspect will have to be determined by Inspector of Factories with reference to the facts and circumstances of each case.7.The reliance by Shri Rele on the decision dated December 18, 1991 of Division Bench of this Court in Writ Petition No. 4061 of 1991 is appropriate. While examining the identical question the Division Bench observed :"We are concerned in the present case, with an applicant who is a Company. Sub-Clause (ii) is therefore, the relevant provision. The statute mandates a fiction to be created in a situation where a company is the applicant. One of the Directors, is deemed to be the occupier. Actually, it may be otherwise."The Division Bench thereupon held that it is futile to claim that only a director can be an occupier after amendment of provisions of the Factories Act. We are in respectful agreement with the view taken by the Division Bench. A reference was also made to the decision of Single Judge of Karnataka High Court in Writ Petitions Nos. 22903 to 22905 of 1989 delivered on June 15, 1990. The learned Single Judge held that the proviso to section 2(n) prescribing that in the case of a company any one of the directors shall be deemed to be the occupier comes into play only in cases where an occupier, who is a person with ultimate control of the affairs of the factory is not nominated by the company. We are in agreement with the view taken by the learned Single Judge.8.The Government Pleader placed strong reliance upon the decision of the Supreme Court reported in 1961 Labour Law Journal 146, (Chief Inspector of Mines and another v. Lala karam Chand Thapar and others). The Supreme Court was examining the liability of the directors under provisions of the Mines Act, 1952. The expression "occupier" was not defined under the Mines Act. In the case before the Supreme Court as a result of tragic accident in a colliery in Manbhum District in the State of Bihar, the directors of the company who were working as managing agents were prosecuted. One of the question which arose before the Supreme Court was about interpretation of words "any one of the directors" in section 76 of the Mines Act. It was claimed on behalf of the directors that the expression "any one" in the section cannot be equated with "every one" and all the directors cannot be prosecuted. The Supreme Court did observe that taking into consideration the background in which the legislature has used the words "any one of the directors" the said words are capable of meaning , all the directors. The reliance was placed on this decision by the Government Pleader to contend that even if proviso prescribes that in the case of a company any one of the directors shall be deemed to be the occupier, it should be held that all the directors are the occupiers and are liable to prosecution. It is not necessary to examine this aspect in the present case as the contingency to hold any one of the directors as occupier has not arisen. The only question which requires determination is whether any person other than the director of the company can be an occupier under section 2(n) of the Factories Act and to that question our answer is in the affirmative. In our judgment, the Inspector of Factories was clearly in error in claiming that after amendment of section 2(n) of the Factories Act no one except a director of the company can be an occupier. Any person who has the ultimate control over the affairs of the factory is entitled to be treated as an occupier and such person need not necessarily be a director. The Inspector of Factories was therefore not justified in addressing letter dated November 4, 1988 calling upon the company to send fresh Form No. 3. The Inspector of Factories therefore shall not insist that only a director can be an occupier under section 2(n) of the Factories Act and whenever a company files application in Form No. 3 then the Inspector will examine whether the person nominated is one who has the ultimate control over the affairs of the factory and if so found will register him as the occupier. | 1[ds]6.The learned Government Pleader did not dispute that in view of the decision of the Supreme Court and catena of other decisions prior to the amendment, it was not incumbent on the company to nominate only a director as occupier under section 2(n) of the Factories Act. It was claimed that the amendments were carried out in the Factories Act and these amendments were the result of the decision of the Supreme Court in the case reported in A.I.R. 1987 S.C. 982, (M.C. Mehta and another v. Union of India and others). In the Shriram Food, case the Supreme Court examined the issue as to what safety devices should be adopted by the factories for ensuring proper maintenance and enforcing liability in cases of death or injury on account of escape of chlorine gas. The Supreme Court observed that though the Chairman and the managing Directors of the company are not concerned with day to day functioning of the units, the Chairman and the Managing Director would be personally liable to pay compensation in case death or injury occurs on account of escape of gas from the factories. The Supreme Court observed that making the Chairman and Managing Director liable would ensure proper and adequate maintenance of safety devices and instruments and operation of the caustic chlorine plant in the manner which would considerably reduce, if not eliminate, risk or hazard to the workmen and the people living in the vicinity. The Government Pleader referred to the amended Chapter IV of the Factories Act to urge that the parliament has provided for constitution of Site Appraisal Committees, compulsory disclosure of information by the occupier, appointment of Inquiry Committees, emergency standards and right of workers to be warned about imminent danger. The Government Pleader claimed that all these responsibilities and liabilities created under the amended provisions of the Act cannot be left to a lowly paid employee or to some executive officer in the factory and the responsibility must be shouldered by the directors of the company, who exercise the ultimate control over the work of the company. The submission cannot be accepted to for more than one reason. In the first instance the plain reading of the amended provisions of section 2(n) of the Factories Act makes it clear that the Parliament never desired to wipe out the effect of the impact of decisions delivered prior to the amendment holding that the occupier need not necessarily be a director of the company. The amendment deleted the provisions of section 100 of the Factories Act, which inter alia, provided that where the occupier of the factory is a company, then any one of the directors thereof may be prosecuted and punished for any offence for which the occupier of the factory is punishable. The Legislature did not delete the entire provisions of section 2(n) but retained the portion which provided that occupier of a factory means the person who has ultimate control over the affairs of the factory. The Legislature then carved out exception by adding proviso to the substantive provisions of the definition. The proviso, inter alia, prescribes that in case of a company any one of the directors shall be deemed to be the occupier. The expression "shall be deemed to be the occupier" clearly indicates that the legal fiction is created and such legal fiction can come into play only in cases where the substantive provision is not attracted. In other words the legal fiction will make any one of the directors responsible as the occupier provided the Company has not nominated an occupier under section 2(n) of the Factories Act. Secondly, the contention of the learned Counsel that the decision of the Supreme Court in Shriram Foods case gave rise to the amendment is not borne out by the amending Act. Neither the preamble to the amending Act nor the Statement of Objects gives any clue to the claim that the amendment was carried out with an idea that all the directors of the company should be made responsible for prosecution under section 92 of the Factories Act. The contention of the Government Pleader that responsibilities which are foisted by the amending provisions are of extreme seriousness and such responsibilities can be carried out only by personof the company and, therefore, the directors can only be an occupier cannot be acceded to. The submission confuses the responsibility of a company and responsibility of a factory. The directors of the company are responsible for carrying out the management and business of the company, but the company may have several factories situated at various places. It is impossible to expect the directors to beof day to day management of every factory. The ultimate control over the affairs of the factory cannot be equated with the ultimate control over the affairs of the company. The directors of the company are required to take policy decisions as to the manner in which the business of the company is to be conducted, while the affairs of the factory relate to only the manner in which the factory is to be run. The prosecution contemplated against the occupier of the factory under section 92 of the Factories Act is in respect of breaches or violations of provisions of the Act or Rules under the Factories Act and in respect of breaches of those breaches it is only the person who has ultimate control over the affairs of the factory who would be responsible. It is impossible to accede to the submission that all the directors of the Company irrespective of the fact whether they have ultimate control over the affairs of the factory should be made responsible for prosecution under section 92 of the Act. In our judgment, the amended provisions of the Factories Act do not make any departure from the settled position prior to the amendment that the occupier need not necessarily be a director of the company. The only requirement is that the person to be nominated as occupier must have the ultimate control over the affairs of the factory and that aspect will have to be determined by Inspector of Factories with reference to the facts and circumstances of each case.7.The reliance by Shri Rele on the decision dated December 18, 1991 of Division Bench of this Court in Writ Petition No. 4061 of 1991 is appropriate. While examining the identical question the Division Bench observed :"We are concerned in the present case, with an applicant who is a Company.(ii) is therefore, the relevant provision. The statute mandates a fiction to be created in a situation where a company is the applicant. One of the Directors, is deemed to be the occupier. Actually, it may be otherwise."The Division Bench thereupon held that it is futile to claim that only a director can be an occupier after amendment of provisions of the Factories Act. We are in respectful agreement with the view taken by the Division Bench. A reference was also made to the decision of Single Judge of Karnataka High Court in Writ Petitions Nos. 22903 to 22905 of 1989 delivered on June 15, 1990. The learned Single Judge held that the proviso to section 2(n) prescribing that in the case of a company any one of the directors shall be deemed to be the occupier comes into play only in cases where an occupier, who is a person with ultimate control of the affairs of the factory is not nominated by the company. We are in agreement with the view taken by the learned Single Judge.8.The Government Pleader placed strong reliance upon the decision of the Supreme Court reported in 1961 Labour Law Journal 146, (Chief Inspector of Mines and another v. Lala karam Chand Thapar and others). The Supreme Court was examining the liability of the directors under provisions of the Mines Act, 1952. The expression "occupier" was not defined under the Mines Act. In the case before the Supreme Court as a result of tragic accident in a colliery in Manbhum District in the State of Bihar, the directors of the company who were working as managing agents were prosecuted. One of the question which arose before the Supreme Court was about interpretation of words "any one of the directors" in section 76 of the Mines Act. It was claimed on behalf of the directors that the expression "any one" in the section cannot be equated with "every one" and all the directors cannot be prosecuted. The Supreme Court did observe that taking into consideration the background in which the legislature has used the words "any one of the directors" the said words are capable of meaning , all the directors. The reliance was placed on this decision by the Government Pleader to contend that even if proviso prescribes that in the case of a company any one of the directors shall be deemed to be the occupier, it should be held that all the directors are the occupiers and are liable to prosecution. It is not necessary to examine this aspect in the present case as the contingency to hold any one of the directors as occupier has not arisen. The only question which requires determination is whether any person other than the director of the company can be an occupier under section 2(n) of the Factories Act and to that question our answer is in the affirmative. In our judgment, the Inspector of Factories was clearly in error in claiming that after amendment of section 2(n) of the Factories Act no one except a director of the company can be an occupier. Any person who has the ultimate control over the affairs of the factory is entitled to be treated as an occupier and such person need not necessarily be a director. The Inspector of Factories was therefore not justified in addressing letter dated November 4, 1988 calling upon the company to send fresh Form No. 3. The Inspector of Factories therefore shall not insist that only a director can be an occupier under section 2(n) of the Factories Act and whenever a company files application in Form No. 3 then the Inspector will examine whether the person nominated is one who has the ultimate control over the affairs of the factory and if so found will register him as the occupier. | 1 | 3,693 | 1,865 | ### 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:
be acceded to. The submission confuses the responsibility of a company and responsibility of a factory. The directors of the company are responsible for carrying out the management and business of the company, but the company may have several factories situated at various places. It is impossible to expect the directors to be in-charge of day to day management of every factory. The ultimate control over the affairs of the factory cannot be equated with the ultimate control over the affairs of the company. The directors of the company are required to take policy decisions as to the manner in which the business of the company is to be conducted, while the affairs of the factory relate to only the manner in which the factory is to be run. The prosecution contemplated against the occupier of the factory under section 92 of the Factories Act is in respect of breaches or violations of provisions of the Act or Rules under the Factories Act and in respect of breaches of those breaches it is only the person who has ultimate control over the affairs of the factory who would be responsible. It is impossible to accede to the submission that all the directors of the Company irrespective of the fact whether they have ultimate control over the affairs of the factory should be made responsible for prosecution under section 92 of the Act. In our judgment, the amended provisions of the Factories Act do not make any departure from the settled position prior to the amendment that the occupier need not necessarily be a director of the company. The only requirement is that the person to be nominated as occupier must have the ultimate control over the affairs of the factory and that aspect will have to be determined by Inspector of Factories with reference to the facts and circumstances of each case.7.The reliance by Shri Rele on the decision dated December 18, 1991 of Division Bench of this Court in Writ Petition No. 4061 of 1991 is appropriate. While examining the identical question the Division Bench observed :"We are concerned in the present case, with an applicant who is a Company. Sub-Clause (ii) is therefore, the relevant provision. The statute mandates a fiction to be created in a situation where a company is the applicant. One of the Directors, is deemed to be the occupier. Actually, it may be otherwise."The Division Bench thereupon held that it is futile to claim that only a director can be an occupier after amendment of provisions of the Factories Act. We are in respectful agreement with the view taken by the Division Bench. A reference was also made to the decision of Single Judge of Karnataka High Court in Writ Petitions Nos. 22903 to 22905 of 1989 delivered on June 15, 1990. The learned Single Judge held that the proviso to section 2(n) prescribing that in the case of a company any one of the directors shall be deemed to be the occupier comes into play only in cases where an occupier, who is a person with ultimate control of the affairs of the factory is not nominated by the company. We are in agreement with the view taken by the learned Single Judge.8.The Government Pleader placed strong reliance upon the decision of the Supreme Court reported in 1961 Labour Law Journal 146, (Chief Inspector of Mines and another v. Lala karam Chand Thapar and others). The Supreme Court was examining the liability of the directors under provisions of the Mines Act, 1952. The expression "occupier" was not defined under the Mines Act. In the case before the Supreme Court as a result of tragic accident in a colliery in Manbhum District in the State of Bihar, the directors of the company who were working as managing agents were prosecuted. One of the question which arose before the Supreme Court was about interpretation of words "any one of the directors" in section 76 of the Mines Act. It was claimed on behalf of the directors that the expression "any one" in the section cannot be equated with "every one" and all the directors cannot be prosecuted. The Supreme Court did observe that taking into consideration the background in which the legislature has used the words "any one of the directors" the said words are capable of meaning , all the directors. The reliance was placed on this decision by the Government Pleader to contend that even if proviso prescribes that in the case of a company any one of the directors shall be deemed to be the occupier, it should be held that all the directors are the occupiers and are liable to prosecution. It is not necessary to examine this aspect in the present case as the contingency to hold any one of the directors as occupier has not arisen. The only question which requires determination is whether any person other than the director of the company can be an occupier under section 2(n) of the Factories Act and to that question our answer is in the affirmative. In our judgment, the Inspector of Factories was clearly in error in claiming that after amendment of section 2(n) of the Factories Act no one except a director of the company can be an occupier. Any person who has the ultimate control over the affairs of the factory is entitled to be treated as an occupier and such person need not necessarily be a director. The Inspector of Factories was therefore not justified in addressing letter dated November 4, 1988 calling upon the company to send fresh Form No. 3. The Inspector of Factories therefore shall not insist that only a director can be an occupier under section 2(n) of the Factories Act and whenever a company files application in Form No. 3 then the Inspector will examine whether the person nominated is one who has the ultimate control over the affairs of the factory and if so found will register him as the occupier.
### Response:
1
### Explanation:
be an occupier cannot be acceded to. The submission confuses the responsibility of a company and responsibility of a factory. The directors of the company are responsible for carrying out the management and business of the company, but the company may have several factories situated at various places. It is impossible to expect the directors to beof day to day management of every factory. The ultimate control over the affairs of the factory cannot be equated with the ultimate control over the affairs of the company. The directors of the company are required to take policy decisions as to the manner in which the business of the company is to be conducted, while the affairs of the factory relate to only the manner in which the factory is to be run. The prosecution contemplated against the occupier of the factory under section 92 of the Factories Act is in respect of breaches or violations of provisions of the Act or Rules under the Factories Act and in respect of breaches of those breaches it is only the person who has ultimate control over the affairs of the factory who would be responsible. It is impossible to accede to the submission that all the directors of the Company irrespective of the fact whether they have ultimate control over the affairs of the factory should be made responsible for prosecution under section 92 of the Act. In our judgment, the amended provisions of the Factories Act do not make any departure from the settled position prior to the amendment that the occupier need not necessarily be a director of the company. The only requirement is that the person to be nominated as occupier must have the ultimate control over the affairs of the factory and that aspect will have to be determined by Inspector of Factories with reference to the facts and circumstances of each case.7.The reliance by Shri Rele on the decision dated December 18, 1991 of Division Bench of this Court in Writ Petition No. 4061 of 1991 is appropriate. While examining the identical question the Division Bench observed :"We are concerned in the present case, with an applicant who is a Company.(ii) is therefore, the relevant provision. The statute mandates a fiction to be created in a situation where a company is the applicant. One of the Directors, is deemed to be the occupier. Actually, it may be otherwise."The Division Bench thereupon held that it is futile to claim that only a director can be an occupier after amendment of provisions of the Factories Act. We are in respectful agreement with the view taken by the Division Bench. A reference was also made to the decision of Single Judge of Karnataka High Court in Writ Petitions Nos. 22903 to 22905 of 1989 delivered on June 15, 1990. The learned Single Judge held that the proviso to section 2(n) prescribing that in the case of a company any one of the directors shall be deemed to be the occupier comes into play only in cases where an occupier, who is a person with ultimate control of the affairs of the factory is not nominated by the company. We are in agreement with the view taken by the learned Single Judge.8.The Government Pleader placed strong reliance upon the decision of the Supreme Court reported in 1961 Labour Law Journal 146, (Chief Inspector of Mines and another v. Lala karam Chand Thapar and others). The Supreme Court was examining the liability of the directors under provisions of the Mines Act, 1952. The expression "occupier" was not defined under the Mines Act. In the case before the Supreme Court as a result of tragic accident in a colliery in Manbhum District in the State of Bihar, the directors of the company who were working as managing agents were prosecuted. One of the question which arose before the Supreme Court was about interpretation of words "any one of the directors" in section 76 of the Mines Act. It was claimed on behalf of the directors that the expression "any one" in the section cannot be equated with "every one" and all the directors cannot be prosecuted. The Supreme Court did observe that taking into consideration the background in which the legislature has used the words "any one of the directors" the said words are capable of meaning , all the directors. The reliance was placed on this decision by the Government Pleader to contend that even if proviso prescribes that in the case of a company any one of the directors shall be deemed to be the occupier, it should be held that all the directors are the occupiers and are liable to prosecution. It is not necessary to examine this aspect in the present case as the contingency to hold any one of the directors as occupier has not arisen. The only question which requires determination is whether any person other than the director of the company can be an occupier under section 2(n) of the Factories Act and to that question our answer is in the affirmative. In our judgment, the Inspector of Factories was clearly in error in claiming that after amendment of section 2(n) of the Factories Act no one except a director of the company can be an occupier. Any person who has the ultimate control over the affairs of the factory is entitled to be treated as an occupier and such person need not necessarily be a director. The Inspector of Factories was therefore not justified in addressing letter dated November 4, 1988 calling upon the company to send fresh Form No. 3. The Inspector of Factories therefore shall not insist that only a director can be an occupier under section 2(n) of the Factories Act and whenever a company files application in Form No. 3 then the Inspector will examine whether the person nominated is one who has the ultimate control over the affairs of the factory and if so found will register him as the occupier.
|
Gurmel Singh Vs. Branch Manager, National Insurance Co. Ltd | A FIR was immediately lodged in the Police Station Kumhari, which was registered as FIR No. 57/13. On the same day, the complainant also informed the insurance company as well as the Regional Transport Office (RTO) regarding the theft of the Truck. That after giving information regarding theft, the appellant submitted all the documents sought by the insurance company, but the insurance company failed to settle the claim. That being aggrieved by the delay in settling the claim, the appellant filed the consumer complaint No. 200/2013 before the District Consumer Disputes Redressal Commission, Durg, Chhattisgarh. The District Consumer Disputes Redressal Commission disposed of the said complaint vide order dated 03.12.2013 with the direction that the appellant herein would furnish duplicate certified copy of the certificate of registration of Truck to the insurance company within a month and that the insurance company within a month after receiving the same would settle the claim as per the terms and conditions of the insurance policy. It is the case on behalf of the appellant that in compliance of the order passed by the District Consumer Disputes Redressal Commission, the appellant submitted an application before the RTO for obtaining duplicate certified copy of the certificate of registration of the Truck in question. However, RTO denied to issue duplicate certified copy of the certificate of registration on the ground that due to the report of the theft of the Truck, the details regarding registration certificate on the computer has been locked. Therefore, the RTO refused to issue the duplicate certified copy of the certificate of registration of the Truck. Thereafter, the appellant – original complainant submitted an application before the insurance company along with photocopy of the certificate of registration and registration particulars, as provided by the RTO. Despite the above, the claim was not settled and therefore, the appellant filed a fresh consumer complaint bearing No. 179/2014 before the District Consumer Disputes Redressal Commission, Durg, Chhattisgarh. That the said District Commission vide order dated 23.01.2015 dismissed the said complaint by observing that as the appellant had not filed the relevant documents for settlement of claim therefore, the nonsettlement of the claim cannot be said to be deficiency in service. The order passed by the District Commission has been confirmed by the State Commission and thereafter, by the National Consumer Disputes Redressal Commission by the impugned judgment and order. 3. We have heard Shri Anand Shankar Jha, learned counsel appearing on behalf of the appellant and Mrs. Hetu Arora Sethi, learned counsel appearing on behalf of the respondent – insurance company. 4. It is not in dispute that the vehicle belonging to the appellant was insured with the respondent – insurance company. It is also not in dispute that the same was valid for the period between 22.08.2012 to 21.08.2013. It is also not in dispute that the appellant herein paid a sum of Rs. 28,880/- to the respondent towards premium. It is also not in dispute that the insured vehicle was stolen for which a FIR has been registered in the Police Station Kumhari on the very day on which the vehicle was stolen. Immediately on the very same day, the appellant informed the insurance company as well as RTO regarding the theft of the Truck. The appellant also produced the photocopy of the certificate of registration and the registration particulars as provided by the RTO. However, the appellant could not produce either the original certificate of registration or the duplicate certified copy of certificate of registration of the Truck. When the appellant applied for the duplicate certified copy of the certificate of registration, the RTO denied to issue the duplicate certified copy on the ground that in view of information/report regarding theft of the vehicle, which has been registered with the RTO, the details regarding registration certificate on the computer has been locked. The insurance claim has not been settled mainly on the ground that the appellant has not produced either the original certificate of registration or even the duplicate certified copy of certificate of registration issued by the RTO. However, the appellant did produce photocopy of certificate of registration and other registration particulars as provided by the RTO. Even, at the time of taking the insurance policy and getting the insurance, the insurance company must have received the copy of the certificate of registration. Therefore, the appellant had tried his best to get the duplicate certified copy of certificate of registration of the Truck. However, because of the report of theft of the Truck, the details of registration on the computer have been locked and the RTO has refused to issue the duplicate certified copy of registration. Therefore, in the facts and circumstance of the case, when the appellant had produced the photocopy of certificate of registration and the registration particulars as provided by the RTO, solely on the ground that the original certificate of registration (which has been stolen) is not produced, nonsettlement of claim can be said to be deficiency in service. Therefore, the appellant has been wrongly denied the insurance claim. 4.1 In the present case, the insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non-submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control. In many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control. | 0[ds]4. It is not in dispute that the vehicle belonging to the appellant was insured with the respondent – insurance company. It is also not in dispute that the same was valid for the period between 22.08.2012 to 21.08.2013. It is also not in dispute that the appellant herein paid a sum of Rs. 28,880/- to the respondent towards premium. It is also not in dispute that the insured vehicle was stolen for which a FIR has been registered in the Police Station Kumhari on the very day on which the vehicle was stolen. Immediately on the very same day, the appellant informed the insurance company as well as RTO regarding the theft of the Truck. The appellant also produced the photocopy of the certificate of registration and the registration particulars as provided by the RTO. However, the appellant could not produce either the original certificate of registration or the duplicate certified copy of certificate of registration of the Truck. When the appellant applied for the duplicate certified copy of the certificate of registration, the RTO denied to issue the duplicate certified copy on the ground that in view of information/report regarding theft of the vehicle, which has been registered with the RTO, the details regarding registration certificate on the computer has been locked. The insurance claim has not been settled mainly on the ground that the appellant has not produced either the original certificate of registration or even the duplicate certified copy of certificate of registration issued by the RTO. However, the appellant did produce photocopy of certificate of registration and other registration particulars as provided by the RTO. Even, at the time of taking the insurance policy and getting the insurance, the insurance company must have received the copy of the certificate of registration. Therefore, the appellant had tried his best to get the duplicate certified copy of certificate of registration of the Truck. However, because of the report of theft of the Truck, the details of registration on the computer have been locked and the RTO has refused to issue the duplicate certified copy of registration. Therefore, in the facts and circumstance of the case, when the appellant had produced the photocopy of certificate of registration and the registration particulars as provided by the RTO, solely on the ground that the original certificate of registration (which has been stolen) is not produced, nonsettlement of claim can be said to be deficiency in service. Therefore, the appellant has been wrongly denied the insurance claim.4.1 In the present case, the insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non-submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control. In many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control. | 0 | 1,226 | 623 | ### 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:
A FIR was immediately lodged in the Police Station Kumhari, which was registered as FIR No. 57/13. On the same day, the complainant also informed the insurance company as well as the Regional Transport Office (RTO) regarding the theft of the Truck. That after giving information regarding theft, the appellant submitted all the documents sought by the insurance company, but the insurance company failed to settle the claim. That being aggrieved by the delay in settling the claim, the appellant filed the consumer complaint No. 200/2013 before the District Consumer Disputes Redressal Commission, Durg, Chhattisgarh. The District Consumer Disputes Redressal Commission disposed of the said complaint vide order dated 03.12.2013 with the direction that the appellant herein would furnish duplicate certified copy of the certificate of registration of Truck to the insurance company within a month and that the insurance company within a month after receiving the same would settle the claim as per the terms and conditions of the insurance policy. It is the case on behalf of the appellant that in compliance of the order passed by the District Consumer Disputes Redressal Commission, the appellant submitted an application before the RTO for obtaining duplicate certified copy of the certificate of registration of the Truck in question. However, RTO denied to issue duplicate certified copy of the certificate of registration on the ground that due to the report of the theft of the Truck, the details regarding registration certificate on the computer has been locked. Therefore, the RTO refused to issue the duplicate certified copy of the certificate of registration of the Truck. Thereafter, the appellant – original complainant submitted an application before the insurance company along with photocopy of the certificate of registration and registration particulars, as provided by the RTO. Despite the above, the claim was not settled and therefore, the appellant filed a fresh consumer complaint bearing No. 179/2014 before the District Consumer Disputes Redressal Commission, Durg, Chhattisgarh. That the said District Commission vide order dated 23.01.2015 dismissed the said complaint by observing that as the appellant had not filed the relevant documents for settlement of claim therefore, the nonsettlement of the claim cannot be said to be deficiency in service. The order passed by the District Commission has been confirmed by the State Commission and thereafter, by the National Consumer Disputes Redressal Commission by the impugned judgment and order. 3. We have heard Shri Anand Shankar Jha, learned counsel appearing on behalf of the appellant and Mrs. Hetu Arora Sethi, learned counsel appearing on behalf of the respondent – insurance company. 4. It is not in dispute that the vehicle belonging to the appellant was insured with the respondent – insurance company. It is also not in dispute that the same was valid for the period between 22.08.2012 to 21.08.2013. It is also not in dispute that the appellant herein paid a sum of Rs. 28,880/- to the respondent towards premium. It is also not in dispute that the insured vehicle was stolen for which a FIR has been registered in the Police Station Kumhari on the very day on which the vehicle was stolen. Immediately on the very same day, the appellant informed the insurance company as well as RTO regarding the theft of the Truck. The appellant also produced the photocopy of the certificate of registration and the registration particulars as provided by the RTO. However, the appellant could not produce either the original certificate of registration or the duplicate certified copy of certificate of registration of the Truck. When the appellant applied for the duplicate certified copy of the certificate of registration, the RTO denied to issue the duplicate certified copy on the ground that in view of information/report regarding theft of the vehicle, which has been registered with the RTO, the details regarding registration certificate on the computer has been locked. The insurance claim has not been settled mainly on the ground that the appellant has not produced either the original certificate of registration or even the duplicate certified copy of certificate of registration issued by the RTO. However, the appellant did produce photocopy of certificate of registration and other registration particulars as provided by the RTO. Even, at the time of taking the insurance policy and getting the insurance, the insurance company must have received the copy of the certificate of registration. Therefore, the appellant had tried his best to get the duplicate certified copy of certificate of registration of the Truck. However, because of the report of theft of the Truck, the details of registration on the computer have been locked and the RTO has refused to issue the duplicate certified copy of registration. Therefore, in the facts and circumstance of the case, when the appellant had produced the photocopy of certificate of registration and the registration particulars as provided by the RTO, solely on the ground that the original certificate of registration (which has been stolen) is not produced, nonsettlement of claim can be said to be deficiency in service. Therefore, the appellant has been wrongly denied the insurance claim. 4.1 In the present case, the insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non-submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control. In many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control.
### Response:
0
### Explanation:
4. It is not in dispute that the vehicle belonging to the appellant was insured with the respondent – insurance company. It is also not in dispute that the same was valid for the period between 22.08.2012 to 21.08.2013. It is also not in dispute that the appellant herein paid a sum of Rs. 28,880/- to the respondent towards premium. It is also not in dispute that the insured vehicle was stolen for which a FIR has been registered in the Police Station Kumhari on the very day on which the vehicle was stolen. Immediately on the very same day, the appellant informed the insurance company as well as RTO regarding the theft of the Truck. The appellant also produced the photocopy of the certificate of registration and the registration particulars as provided by the RTO. However, the appellant could not produce either the original certificate of registration or the duplicate certified copy of certificate of registration of the Truck. When the appellant applied for the duplicate certified copy of the certificate of registration, the RTO denied to issue the duplicate certified copy on the ground that in view of information/report regarding theft of the vehicle, which has been registered with the RTO, the details regarding registration certificate on the computer has been locked. The insurance claim has not been settled mainly on the ground that the appellant has not produced either the original certificate of registration or even the duplicate certified copy of certificate of registration issued by the RTO. However, the appellant did produce photocopy of certificate of registration and other registration particulars as provided by the RTO. Even, at the time of taking the insurance policy and getting the insurance, the insurance company must have received the copy of the certificate of registration. Therefore, the appellant had tried his best to get the duplicate certified copy of certificate of registration of the Truck. However, because of the report of theft of the Truck, the details of registration on the computer have been locked and the RTO has refused to issue the duplicate certified copy of registration. Therefore, in the facts and circumstance of the case, when the appellant had produced the photocopy of certificate of registration and the registration particulars as provided by the RTO, solely on the ground that the original certificate of registration (which has been stolen) is not produced, nonsettlement of claim can be said to be deficiency in service. Therefore, the appellant has been wrongly denied the insurance claim.4.1 In the present case, the insurance company has become too technical while settling the claim and has acted arbitrarily. The appellant has been asked to furnish the documents which were beyond the control of the appellant to procure and furnish. Once, there was a valid insurance on payment of huge sum by way of premium and the Truck was stolen, the insurance company ought not to have become too technical and ought not to have refused to settle the claim on non-submission of the duplicate certified copy of certificate of registration, which the appellant could not produce due to the circumstances beyond his control. In many cases, it is found that the insurance companies are refusing the claim on flimsy grounds and/or technical grounds. While settling the claims, the insurance company should not be too technical and ask for the documents, which the insured is not in a position to produce due to circumstances beyond his control.
|
Raghavendra Sharma Vs. State Of M.P | by the appellant on 22.5.1986 declared her dead.After the marriage of the deceased with the appellant on 2.6.1985, deceased came to her father-in-laws place at village Salkhani only 3-4 times and although appellant used -to go to meet his wife at village Parasia, but was not happy with the articles given at the time of marriage and had kept the same at the parents place of the deceased at Paresis. Appellant further used to demand Scooter and had suspicion about his wifes fidelity and believed that she had illicit relationship with her brother-in-law Radhakishan i.e. husband of Rajkumari (P.W.10). Immediately prior to the incident appellant and deceased had gone to Radhakrishnans House at Vidisha. After returning from Vidisha to Parasia, in spite of the request made, appellant did not stay with his wife there and went along with the deceased to his village Salkhani, although deceased was not inclined to go. On 21.5.1986, the villagers heard the cries of the deceased. She was done to death by the appellant and in order to conceal the crime, he projected that she died of vomiting.While preparing the inquest report it was found that there were red and blue spots on the face and chest of the deceased and thin blood coming out from the nostrils and as such the death was found to be suspicious and accordingly the dead body of Maya was sent for post-mortem examination. The Post mortem was conducted by a team of doctors consisting of Dr. V.E.Chako (P.W.7) and Dr. K.D. Khan and they submitted the post-mortem report (Ex.P/12) signed by both of them. According to the post-mortem report and the evidence of Dr. Chako (P.W.7), Mayas death was "asphyxiat as a result of suffocation".On enquiry by the investigating officer, Dr. Chako opined that swelling between Pomum adeomi and the border of the breast was ante-mortem in nature and could have been possible by pressing hard the chest and smothering by an object like soft pillow. The investigating agency also sent the earth containing vomited material for chemical examination to the Forensic Science Laboratory. But in its report the Forensic Science Laboratory did not find any poison. However, on the seized under-garments of the deceased and on the slides prepared from the vaginal fluid human sperms were found to show that the deceased had sexual intercourse before her death.Trial court on appreciation of the evidence, on placing reliance on the post mortem report and the evidence of Dr. Chako, PW7, found the death of the deceased to be homicidal in nature. The trial court rejected the evidence of Dr. S.D. Vaidya, DW3 who had opined that the death of Maya was accidental in nature. Trial court found that the appellant doubted the fidelity of his wife and believed that she had illicit relationship with her brother in law and was not happy with the dowry articles given to him at the time of marriage and as such had motive to commit the crime. It was further found that the deceased was in the company of the appellant in the night when she died and it was he who alone had committed her murder.The High Court analysed the stand taken by the appellant and came to hold that the conclusions of the trial court were justified. Accordingly the appeal as noted above has been dismissed. In the present appeal the stand taken before the High Court with reference to evidence of PW 3 was reiterated. 3. Learned counsel for the State on the other hand supported the judgment of the High Court. 4. The evidence of PW 7 categorically ruled out the theory of accidental death as was projected by the accused PW 7 had committed the postmortem alongwith Dr. Kahare and stated that the cause of death was asphyxia as a result of suffocation. Dr. Chako in her evidence has stated that on 5.6.1986 she had received a query, Ex. P.13 from the investigating agency and had given an answer. The quaries and the answers are as follows: "1.You have mentioned in P.M. report that "swelling between pomum-adami and border of the breast" please clear that how that swelling can be caused.2. You have also mentioned in P.M. report that "Nails of fingers of both the hands are blue and terminal pulps of the fingers of the right and found blueish purple colour (Coppery) while in the left hand it is present over the tips of fingers" please clarify that how it can be caused.3. The case of death according to P.M. report Asphyxiated death due to suffocation" please how that suffocation caused resulting into death".4. Please clarify that the mode of death is whether homicidal, suicidal or accidental." In answer thereto, Dr Chako had stated as follows: "1. The swelling on the said area in ante-mortem in nature and can be caused both by external heavy pressure applied on the chest and the said region and smothering by an object like soft pillow with deeply applied pressure.2. The blueish purple (Coppery) colour on the said areas are as a result of asphyxia.3. Cause of death given as asphyxia as a result of suffocation which can be attributed to the ante-mortem Injury (swelling) mentioned in the P.M. Report.4. Death is homicidal:" 5. PW 7 had found a dark read colour mucoid fluid on the trachea and found violet bluish froth in the lungs. No food particles were found in the trachea, larynx and bronchitis. Therefore the question of vomited material blocking the air passage was clearly ruled out. DW 3 had never any occasion to see the dead body and purportedly had looked at the postmortem report. In that sense his evidence has evidentiary value. Apart from that the deceased was living with the appellant staying in the same room and that is another factor which has been rightly taken note of by the trial court and the High Court. We find no infirmity on the conclusions of the trial court or the High Court to warrant interference. | 0[ds]4. The evidence of PW 7 categorically ruled out the theory of accidental death as was projected by the accused PW 7 had committed the postmortem alongwith Dr. Kahare and stated that the cause of death was asphyxia as a result of suffocation. Dr. Chako in her evidence has stated that on 5.6.1986 she had received a query, Ex. P.13 from the investigating agency and had given an answer.PW 7 had found a dark read colour mucoid fluid on the trachea and found violet bluish froth in the lungs. No food particles were found in the trachea, larynx and bronchitis. Therefore the question of vomited material blocking the air passage was clearly ruled out. DW 3 had never any occasion to see the dead body and purportedly had looked at the postmortem report. In that sense his evidence has evidentiary value. Apart from that the deceased was living with the appellant staying in the same room and that is another factor which has been rightly taken note of by the trial court and the High Court. We find no infirmity on the conclusions of the trial court or the High Court to warrant interference. | 0 | 1,548 | 210 | ### 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:
by the appellant on 22.5.1986 declared her dead.After the marriage of the deceased with the appellant on 2.6.1985, deceased came to her father-in-laws place at village Salkhani only 3-4 times and although appellant used -to go to meet his wife at village Parasia, but was not happy with the articles given at the time of marriage and had kept the same at the parents place of the deceased at Paresis. Appellant further used to demand Scooter and had suspicion about his wifes fidelity and believed that she had illicit relationship with her brother-in-law Radhakishan i.e. husband of Rajkumari (P.W.10). Immediately prior to the incident appellant and deceased had gone to Radhakrishnans House at Vidisha. After returning from Vidisha to Parasia, in spite of the request made, appellant did not stay with his wife there and went along with the deceased to his village Salkhani, although deceased was not inclined to go. On 21.5.1986, the villagers heard the cries of the deceased. She was done to death by the appellant and in order to conceal the crime, he projected that she died of vomiting.While preparing the inquest report it was found that there were red and blue spots on the face and chest of the deceased and thin blood coming out from the nostrils and as such the death was found to be suspicious and accordingly the dead body of Maya was sent for post-mortem examination. The Post mortem was conducted by a team of doctors consisting of Dr. V.E.Chako (P.W.7) and Dr. K.D. Khan and they submitted the post-mortem report (Ex.P/12) signed by both of them. According to the post-mortem report and the evidence of Dr. Chako (P.W.7), Mayas death was "asphyxiat as a result of suffocation".On enquiry by the investigating officer, Dr. Chako opined that swelling between Pomum adeomi and the border of the breast was ante-mortem in nature and could have been possible by pressing hard the chest and smothering by an object like soft pillow. The investigating agency also sent the earth containing vomited material for chemical examination to the Forensic Science Laboratory. But in its report the Forensic Science Laboratory did not find any poison. However, on the seized under-garments of the deceased and on the slides prepared from the vaginal fluid human sperms were found to show that the deceased had sexual intercourse before her death.Trial court on appreciation of the evidence, on placing reliance on the post mortem report and the evidence of Dr. Chako, PW7, found the death of the deceased to be homicidal in nature. The trial court rejected the evidence of Dr. S.D. Vaidya, DW3 who had opined that the death of Maya was accidental in nature. Trial court found that the appellant doubted the fidelity of his wife and believed that she had illicit relationship with her brother in law and was not happy with the dowry articles given to him at the time of marriage and as such had motive to commit the crime. It was further found that the deceased was in the company of the appellant in the night when she died and it was he who alone had committed her murder.The High Court analysed the stand taken by the appellant and came to hold that the conclusions of the trial court were justified. Accordingly the appeal as noted above has been dismissed. In the present appeal the stand taken before the High Court with reference to evidence of PW 3 was reiterated. 3. Learned counsel for the State on the other hand supported the judgment of the High Court. 4. The evidence of PW 7 categorically ruled out the theory of accidental death as was projected by the accused PW 7 had committed the postmortem alongwith Dr. Kahare and stated that the cause of death was asphyxia as a result of suffocation. Dr. Chako in her evidence has stated that on 5.6.1986 she had received a query, Ex. P.13 from the investigating agency and had given an answer. The quaries and the answers are as follows: "1.You have mentioned in P.M. report that "swelling between pomum-adami and border of the breast" please clear that how that swelling can be caused.2. You have also mentioned in P.M. report that "Nails of fingers of both the hands are blue and terminal pulps of the fingers of the right and found blueish purple colour (Coppery) while in the left hand it is present over the tips of fingers" please clarify that how it can be caused.3. The case of death according to P.M. report Asphyxiated death due to suffocation" please how that suffocation caused resulting into death".4. Please clarify that the mode of death is whether homicidal, suicidal or accidental." In answer thereto, Dr Chako had stated as follows: "1. The swelling on the said area in ante-mortem in nature and can be caused both by external heavy pressure applied on the chest and the said region and smothering by an object like soft pillow with deeply applied pressure.2. The blueish purple (Coppery) colour on the said areas are as a result of asphyxia.3. Cause of death given as asphyxia as a result of suffocation which can be attributed to the ante-mortem Injury (swelling) mentioned in the P.M. Report.4. Death is homicidal:" 5. PW 7 had found a dark read colour mucoid fluid on the trachea and found violet bluish froth in the lungs. No food particles were found in the trachea, larynx and bronchitis. Therefore the question of vomited material blocking the air passage was clearly ruled out. DW 3 had never any occasion to see the dead body and purportedly had looked at the postmortem report. In that sense his evidence has evidentiary value. Apart from that the deceased was living with the appellant staying in the same room and that is another factor which has been rightly taken note of by the trial court and the High Court. We find no infirmity on the conclusions of the trial court or the High Court to warrant interference.
### Response:
0
### Explanation:
4. The evidence of PW 7 categorically ruled out the theory of accidental death as was projected by the accused PW 7 had committed the postmortem alongwith Dr. Kahare and stated that the cause of death was asphyxia as a result of suffocation. Dr. Chako in her evidence has stated that on 5.6.1986 she had received a query, Ex. P.13 from the investigating agency and had given an answer.PW 7 had found a dark read colour mucoid fluid on the trachea and found violet bluish froth in the lungs. No food particles were found in the trachea, larynx and bronchitis. Therefore the question of vomited material blocking the air passage was clearly ruled out. DW 3 had never any occasion to see the dead body and purportedly had looked at the postmortem report. In that sense his evidence has evidentiary value. Apart from that the deceased was living with the appellant staying in the same room and that is another factor which has been rightly taken note of by the trial court and the High Court. We find no infirmity on the conclusions of the trial court or the High Court to warrant interference.
|
DALBIR SINGH Vs. UNION OF INDIA | mark of retaliation. In that circumstance, it is contended that when in the attack carried out by the militants the colleague of the appellant late Gurmail Singh had died and there was no action from the appellant, it is a grave situation which warranted the action taken and the same does not call for interference. 6. In the above background, keeping in view the scope available in examining a matter of the present nature we have taken note of the nature of the consideration made by the Armed Forces Tribunal as the same was in a statutory appeal against the proceedings by the SGCM. In the matter of the present nature when the task assigned to a soldier is cut out in a definite manner and when the duties are assigned, the only scope in a judicial proceeding is to find out whether the same has been performed by him based on the finding of fact that is recorded. In a matter where allegation of cowardice is made, the reason for which such allegation is made is to be taken note and considered. In that view, without adverting to all other aspects what is necessary to be taken note is the charge that was made and the reason for which the competent authority had arrived at the conclusion that the appellant instead of performing his duty had run away from it. Limited to that aspect, what is to be taken note is that in the background of the situation that had arisen, the task assigned to the group of officers was to cordon the area and prevent the militants from breaking through. The charge against the appellant is that despite the militants having attacked and killed Sapper Gurmail Singh who was in the group of the appellant and though the LMG was manned by the said deceased Sapper Gurmail Singh and the appellant, the appellant had not retaliated using either the AK-47 gun or the pistol which was in his possession. On the other hand, the appellant abandoned the post and jumped over the wall to escape from the spot. The defence of the appellant, however, was that he had jumped over the wall to protect himself and attack the militants and in that process he was also fired at, to his leg and was injured, in the process he had become unconscious for about 10 seconds and it is at that point the militants had picked up the LMG and carried it away. The appellant had also stated that his AK¬47 was jammed when tried to use it. 7. From the evidence of the witnesses the manner in which the incident had occurred has been referred to in detail. Insofar as charge against the appellant, apart from the fact that he was injured the other actions would indicate that the appellant did not rise to the occasion more particularly when his colleague was attacked and killed. Though he has contended that he had jumped the wall to protect himself, there is no reasonable explanation as to why he had not used the weapons which were with him when the attack from the militants had already taken place and his colleague was injured. Even if the explanation sought to be put forth by him that he was unconscious for about 10 to 12 seconds is taken note the same was not of such a long duration which had prevented him from taking any action even thereafter and that too in a situation when the militants had killed a soldier and also had taken away the LMG. While taking note of the said explanation sought to be put forth by the appellant the Tribunal has rightly arrived at the conclusion that the theory of the appellant having become unconscious cannot be accepted since all incidents which occurred from the time there was an attack by the militants including the act of the militants in taking away the LMG was explained by the appellant, which he would not have been aware of if he was actually unconscious. In that circumstance, when the evidence has been adverted to by the Armed Forces Tribunal and when such conclusion reached does not indicate any perversity it would not be appropriate for this Court to interfere in the matter. Further, there is no other material or circumstance brought on record by the appellant to indicate, but for the incident there was any other reason due to which he was victimized or to show that it is a malafide action. 8. Though the learned counsel for the appellant has sought to refer to the cross¬examination of PW-4 to PW¬6 to indicate that he had taken part in several operations earlier and the said witnesses have admitted him to be a good soldier, in the matter of protecting the border, a soldier cannot live merely on past glory but should rise to the occasion on every occasion to defend the integrity of the nation since such is the trust reposed in a soldier. Though in service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied. The resources of the country are spent on training a soldier to retaliate and fight when the integrity of the nation is threatened and there is aggression. In such grave situation if a soldier turns his back to the challenge, it will certainly amount to cowardice. If in that background, the action taken against the appellant is taken note, we are of the opinion, that the SGCM and the Armed Forces Tribunal were justified. 9. Having arrived at the above conclusion we also take note that the appellant apart from being dismissed from service has also been ordered to undergo rigorous imprisonment for six months. | 0[ds]6. In the above background, keeping in view the scope available in examining a matter of the present nature we have taken note of the nature of the consideration made by the Armed Forces Tribunal as the same was in a statutory appeal against the proceedings by the SGCM. In the matter of the present nature when the task assigned to a soldier is cut out in a definite manner and when the duties are assigned, the only scope in a judicial proceeding is to find out whether the same has been performed by him based on the finding of fact that is recorded. In a matter where allegation of cowardice is made, the reason for which such allegation is made is to be taken note and considered. In that view, without adverting to all other aspects what is necessary to be taken note is the charge that was made and the reason for which the competent authority had arrived at the conclusion that the appellant instead of performing his duty had run away from it. Limited to that aspect, what is to be taken note is that in the background of the situation that had arisen, the task assigned to the group of officers was to cordon the area and prevent the militants from breaking through. The charge against the appellant is that despite the militants having attacked and killed Sapper Gurmail Singh who was in the group of the appellant and though the LMG was manned by the said deceased Sapper Gurmail Singh and the appellant, the appellant had not retaliated using either the AK-47 gun or the pistol which was in his possession. On the other hand, the appellant abandoned the post and jumped over the wall to escape from the spot. The defence of the appellant, however, was that he had jumped over the wall to protect himself and attack the militants and in that process he was also fired at, to his leg and was injured, in the process he had become unconscious for about 10 seconds and it is at that point the militants had picked up the LMG and carried it away. The appellant had also stated that his AK¬47 was jammed when tried to use it.From the evidence of the witnesses the manner in which the incident had occurred has been referred to in detail. Insofar as charge against the appellant, apart from the fact that he was injured the other actions would indicate that the appellant did not rise to the occasion more particularly when his colleague was attacked and killed. Though he has contended that he had jumped the wall to protect himself, there is no reasonable explanation as to why he had not used the weapons which were with him when the attack from the militants had already taken place and his colleague was injured. Even if the explanation sought to be put forth by him that he was unconscious for about 10 to 12 seconds is taken note the same was not of such a long duration which had prevented him from taking any action even thereafter and that too in a situation when the militants had killed a soldier and also had taken away the LMG. While taking note of the said explanation sought to be put forth by the appellant the Tribunal has rightly arrived at the conclusion that the theory of the appellant having become unconscious cannot be accepted since all incidents which occurred from the time there was an attack by the militants including the act of the militants in taking away the LMG was explained by the appellant, which he would not have been aware of if he was actually unconscious. In that circumstance, when the evidence has been adverted to by the Armed Forces Tribunal and when such conclusion reached does not indicate any perversity it would not be appropriate for this Court to interfere in the matter. Further, there is no other material or circumstance brought on record by the appellant to indicate, but for the incident there was any other reason due to which he was victimized or to show that it is a malafide action.Though the learned counsel for the appellant has sought to refer to the cross¬examination of PW-4 to PW¬6 to indicate that he had taken part in several operations earlier and the said witnesses have admitted him to be a good soldier, in the matter of protecting the border, a soldier cannot live merely on past glory but should rise to the occasion on every occasion to defend the integrity of the nation since such is the trust reposed in a soldier. Though in service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied. The resources of the country are spent on training a soldier to retaliate and fight when the integrity of the nation is threatened and there is aggression. In such grave situation if a soldier turns his back to the challenge, it will certainly amount to cowardice. If in that background, the action taken against the appellant is taken note, we are of the opinion, that the SGCM and the Armed Forces Tribunal were justified.Having arrived at the above conclusion we also take note that the appellant apart from being dismissed from service has also been ordered to undergo rigorous imprisonment for six months. | 0 | 2,124 | 992 | ### 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:
mark of retaliation. In that circumstance, it is contended that when in the attack carried out by the militants the colleague of the appellant late Gurmail Singh had died and there was no action from the appellant, it is a grave situation which warranted the action taken and the same does not call for interference. 6. In the above background, keeping in view the scope available in examining a matter of the present nature we have taken note of the nature of the consideration made by the Armed Forces Tribunal as the same was in a statutory appeal against the proceedings by the SGCM. In the matter of the present nature when the task assigned to a soldier is cut out in a definite manner and when the duties are assigned, the only scope in a judicial proceeding is to find out whether the same has been performed by him based on the finding of fact that is recorded. In a matter where allegation of cowardice is made, the reason for which such allegation is made is to be taken note and considered. In that view, without adverting to all other aspects what is necessary to be taken note is the charge that was made and the reason for which the competent authority had arrived at the conclusion that the appellant instead of performing his duty had run away from it. Limited to that aspect, what is to be taken note is that in the background of the situation that had arisen, the task assigned to the group of officers was to cordon the area and prevent the militants from breaking through. The charge against the appellant is that despite the militants having attacked and killed Sapper Gurmail Singh who was in the group of the appellant and though the LMG was manned by the said deceased Sapper Gurmail Singh and the appellant, the appellant had not retaliated using either the AK-47 gun or the pistol which was in his possession. On the other hand, the appellant abandoned the post and jumped over the wall to escape from the spot. The defence of the appellant, however, was that he had jumped over the wall to protect himself and attack the militants and in that process he was also fired at, to his leg and was injured, in the process he had become unconscious for about 10 seconds and it is at that point the militants had picked up the LMG and carried it away. The appellant had also stated that his AK¬47 was jammed when tried to use it. 7. From the evidence of the witnesses the manner in which the incident had occurred has been referred to in detail. Insofar as charge against the appellant, apart from the fact that he was injured the other actions would indicate that the appellant did not rise to the occasion more particularly when his colleague was attacked and killed. Though he has contended that he had jumped the wall to protect himself, there is no reasonable explanation as to why he had not used the weapons which were with him when the attack from the militants had already taken place and his colleague was injured. Even if the explanation sought to be put forth by him that he was unconscious for about 10 to 12 seconds is taken note the same was not of such a long duration which had prevented him from taking any action even thereafter and that too in a situation when the militants had killed a soldier and also had taken away the LMG. While taking note of the said explanation sought to be put forth by the appellant the Tribunal has rightly arrived at the conclusion that the theory of the appellant having become unconscious cannot be accepted since all incidents which occurred from the time there was an attack by the militants including the act of the militants in taking away the LMG was explained by the appellant, which he would not have been aware of if he was actually unconscious. In that circumstance, when the evidence has been adverted to by the Armed Forces Tribunal and when such conclusion reached does not indicate any perversity it would not be appropriate for this Court to interfere in the matter. Further, there is no other material or circumstance brought on record by the appellant to indicate, but for the incident there was any other reason due to which he was victimized or to show that it is a malafide action. 8. Though the learned counsel for the appellant has sought to refer to the cross¬examination of PW-4 to PW¬6 to indicate that he had taken part in several operations earlier and the said witnesses have admitted him to be a good soldier, in the matter of protecting the border, a soldier cannot live merely on past glory but should rise to the occasion on every occasion to defend the integrity of the nation since such is the trust reposed in a soldier. Though in service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied. The resources of the country are spent on training a soldier to retaliate and fight when the integrity of the nation is threatened and there is aggression. In such grave situation if a soldier turns his back to the challenge, it will certainly amount to cowardice. If in that background, the action taken against the appellant is taken note, we are of the opinion, that the SGCM and the Armed Forces Tribunal were justified. 9. Having arrived at the above conclusion we also take note that the appellant apart from being dismissed from service has also been ordered to undergo rigorous imprisonment for six months.
### Response:
0
### Explanation:
6. In the above background, keeping in view the scope available in examining a matter of the present nature we have taken note of the nature of the consideration made by the Armed Forces Tribunal as the same was in a statutory appeal against the proceedings by the SGCM. In the matter of the present nature when the task assigned to a soldier is cut out in a definite manner and when the duties are assigned, the only scope in a judicial proceeding is to find out whether the same has been performed by him based on the finding of fact that is recorded. In a matter where allegation of cowardice is made, the reason for which such allegation is made is to be taken note and considered. In that view, without adverting to all other aspects what is necessary to be taken note is the charge that was made and the reason for which the competent authority had arrived at the conclusion that the appellant instead of performing his duty had run away from it. Limited to that aspect, what is to be taken note is that in the background of the situation that had arisen, the task assigned to the group of officers was to cordon the area and prevent the militants from breaking through. The charge against the appellant is that despite the militants having attacked and killed Sapper Gurmail Singh who was in the group of the appellant and though the LMG was manned by the said deceased Sapper Gurmail Singh and the appellant, the appellant had not retaliated using either the AK-47 gun or the pistol which was in his possession. On the other hand, the appellant abandoned the post and jumped over the wall to escape from the spot. The defence of the appellant, however, was that he had jumped over the wall to protect himself and attack the militants and in that process he was also fired at, to his leg and was injured, in the process he had become unconscious for about 10 seconds and it is at that point the militants had picked up the LMG and carried it away. The appellant had also stated that his AK¬47 was jammed when tried to use it.From the evidence of the witnesses the manner in which the incident had occurred has been referred to in detail. Insofar as charge against the appellant, apart from the fact that he was injured the other actions would indicate that the appellant did not rise to the occasion more particularly when his colleague was attacked and killed. Though he has contended that he had jumped the wall to protect himself, there is no reasonable explanation as to why he had not used the weapons which were with him when the attack from the militants had already taken place and his colleague was injured. Even if the explanation sought to be put forth by him that he was unconscious for about 10 to 12 seconds is taken note the same was not of such a long duration which had prevented him from taking any action even thereafter and that too in a situation when the militants had killed a soldier and also had taken away the LMG. While taking note of the said explanation sought to be put forth by the appellant the Tribunal has rightly arrived at the conclusion that the theory of the appellant having become unconscious cannot be accepted since all incidents which occurred from the time there was an attack by the militants including the act of the militants in taking away the LMG was explained by the appellant, which he would not have been aware of if he was actually unconscious. In that circumstance, when the evidence has been adverted to by the Armed Forces Tribunal and when such conclusion reached does not indicate any perversity it would not be appropriate for this Court to interfere in the matter. Further, there is no other material or circumstance brought on record by the appellant to indicate, but for the incident there was any other reason due to which he was victimized or to show that it is a malafide action.Though the learned counsel for the appellant has sought to refer to the cross¬examination of PW-4 to PW¬6 to indicate that he had taken part in several operations earlier and the said witnesses have admitted him to be a good soldier, in the matter of protecting the border, a soldier cannot live merely on past glory but should rise to the occasion on every occasion to defend the integrity of the nation since such is the trust reposed in a soldier. Though in service matters the past conduct, both positive and negative will be relevant not only while referring to the misconduct but also in deciding the proportionality of the punishment, the Court should be cautious while considering the case of an officer/soldier/employee of a disciplined force and the same yardstick or sympathetic consideration as in other cases cannot be applied. The resources of the country are spent on training a soldier to retaliate and fight when the integrity of the nation is threatened and there is aggression. In such grave situation if a soldier turns his back to the challenge, it will certainly amount to cowardice. If in that background, the action taken against the appellant is taken note, we are of the opinion, that the SGCM and the Armed Forces Tribunal were justified.Having arrived at the above conclusion we also take note that the appellant apart from being dismissed from service has also been ordered to undergo rigorous imprisonment for six months.
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SHANKAR LAL Vs. HINDUSTAN COPPER LTD. & ORS | recorded of the appellant in the service book was an act by mistake. This is a weak explanation in our opinion. Several subsequent steps were taken by the employer in relation to the appellants employment on the basis of the entry in his service book. The employer are the custodian of these records. They acted all along on the basis of the service entries till the appellant took VRS. It has been pleaded by the appellant that at the time of his appointment, the office of the respondent company entered in all their records his date of birth as 21st September 1949. In the light of these facts, we are not inclined to accept the version of the employer that service book recordal was a mistake. The employer, a public sector unit in this case, was expected to act with a certain element of responsibility in maintaining the service records of their workmen and ensure that there is uniformity in particulars concerning individual employees. There is no explanation as to how this mistake occurred and how pay slips continued to be issued carrying the mistaken date of birth for such a long time. The High Court in our view ought not to have had accepted mistake as the cause for different entries in different documents. 19. The other point on which argument has been advanced on behalf of the employer is on the aspect of delay on the appellants part in questioning the mistake in the Form B. It has been urged by the respondents counsel that they had extended the sum as per the VRS package computed on the basis of 21st September 1945 as his date of birth and complaint on that count was raised by the appellant after receiving such benefits. It is their case that the anomaly was discovered sometime in July--August 2002 and the appellant was asked to appear before a higher authority, which he did on 16th October 2002. The note sheet of the appellants meeting with the Assistant General Manager on 16th October 2002 has been annexed to the respondents counter-affidavit marked as R1. The note sheet records that the appellant had refused to put his signature thereon. Such refusal is not of much significance so far as adjudication of the subject- dispute is concerned. Fact remains that this note--sheet appears to be the first document by which the employer had alerted the appellant of their decision to rely on Form B entry for computing his age. 20. The said document came into existence after the appellant was released from his service on 3rd October 2002. No document of earlier origin in this regard has been brought to our notice in course of hearing of this appeal. The appellant complained against such decision on 26th October 2002. Thus, the process of fixing of the appellants date of birth had continued beyond the date on which he was released from his service. 21. We do not think the appellants complaint over the dispute was belated so as to non--suit him on this count alone. VRS benefit is an entitlement and assumes the character of property to the employee concerned once his application for VRS is accepted. It is the right of a person under Article 300A of the Constitution of India to have the VRS benefit to be given on accurate assessment thereof, the employer here being a public sector unit. If at the time of quantifying the VRS benefit after accepting an employees application for voluntary retirement, the employer take any step that would reduce such benefit in monetary terms, such step shall have to be taken under the authority of law. We find the action of the employer lacking in authority of law in this case on two counts. First, it fails for not adhering to the principles of natural justice. The decision not to follow the service book recordal was taken without giving an opportunity of hearing to the appellant. The opportunity of hearing of the appellant also accrued because the employer themselves had proceeded on the basis that the later date i.e., 21st September 1949 was the birthdate of the appellant and this was a long established position. Moreover, since in the own records of the employer two dates were shown, under normal circumstances it would have been incumbent on their part to undertake an exercise on application of mind to determine in which of these two records the mistake had crept in. That process would also have had to involve participation of the appellant, which would have been compatible with the principles of natural justice. There are several authorities in which this Court has deprecated the practice on the part of the employees at the fag end of their career to dispute the records pertaining to their dates of birth that would have the effect of extension of the length of their service. We are not referring to those authorities in this judgment as the ratio laid down on that count by this Court is not relevant for adjudication of this appeal. The very reasoning on which an employee is not permitted to raise age-correction plea at the fag end of his service to extend his tenure should also apply to the employer as well. It is the employer here who had proceeded on the basis of age of the appellant reflected in his service book during the latters service tenure and they ought not to be permitted to fall back on the Form B which would curtail the VRS benefit of the appellant. 22. The principle of estoppel cannot be invoked in this case against the appellant to debar him from claiming the benefit properly computed as per his age reflected in the official documents. Occasion did not arise for the appellant to advert to the age correcting process so far as entry in the Form B is concerned as the employer themselves had treated his date of birth to be 21st September 1949 in the service book. | 0[ds]4. The appellant had joined the said organisation as a miner on completion of his one--month training in the temporary job. Communication to that effect was issued on 8th September 1971. We have already referred to different documents emanating from or maintained by the employer themselves where his date of birth was shown to be 21st September 1949. In the computation sheet of his estimated VR benefit also the same date of birth was reflected. By that time, the post the appellant was holding was that of drifter operator (a copy of the estimate sheet forms part of the paperbook, at page 38). The appellant was relieved from his service on 3rd October 2002. The appellants case is that he came to know that his date of birth was being altered only after he was relieved from service. From the materials available on record, we find reference to his date of birth as 21st September 1945 for the first time in a form issued by the employer on 22nd March 2003. The top portion of this form (a copy of which appears at page 47 of the paperbook) carries an endorsement made by the Assistant Manager of the first respondent: - Date of birth: 21.09.1945 as per B Form. Immediately below this sentence there is recordal that D.O.B: 21.09.1949 as per H.O. Application. Rest of the said form contains other particulars of the appellant, which also includes his date of birth, filled in as 20th September 1949. The appellant, however, had knowledge of his date of birth being taken by the employer as 21st September 1945 earlier, but according to him, he had noticed this only after being relieved from service. In his service certificate issued on 29th October 2002, 21st September 1945 was shown as his birthdate.12. The stand of the employer, thus, is that in his service book there was error in recording the age of the appellant as 26 years in 1975 and we ought not to give any credence to such recordal. The respondents had only corrected an error and such recordal in service book cannot be treated to be acceptance of the appellants date of birth as 21st September 1949.We, however, find that the authorities proceeded in this matter in a rather mechanical manner and embarked on a unilateral exercise of correcting the age entry in the service book on their perception that an error was being corrected. This exercise was conducted without giving any opportunity of hearing to the appellant and at the fag end of his service tenure. Otherwise, various documents including the L.I.C. policy consistently reflect 21st September 1949 to be the appellants birthdate.13. Clause 5 of the Standing Order on which reliance has been placed by the employer does not treat the entry in the Form B recording date of birth of a miner to be the conclusive proof of his or her age. Any doubt on a workmans age at the time of joining service also could be verified by a medical board. We accept that an entry in the Form B possesses high probative value, but they are not conclusive proof of what is contained therein. The competent authority proceeded on the basis that since the appellant did not question the entry in Form B, he ought not to be permitted to question the same at the time of his voluntary retirement.14. The committee report prepared by three deputy general managers of the respondent no.1 has raised doubt of the correctness of the medical report as the same was not a report of a medical board set up specifically for age determination. It appears to have been a general observation in course of health check--up. There does not appear to have had been any other medical board constituted for that purpose. The Division Bench, in the judgment under appeal, has held that the respondents had referred the appellants case to a medical board which had again confirmed the entries made in the Form B register. We do not find from the counter affidavit that any further medical board was constituted. Moreover, the finding of the Division Bench that opinion of the medical board confirmed the entries made in the Form B register and service book is erroneous as in the service book prepared in the year 1975, the year of birth of the appellant has been treated to be 1949. Moreover, the rejection order does not deal with the committees observation that the medical opinion on the appellants age was a routine medical report and not the opinion of a medical board constituted to determine the age of an employee. Subsequent pay--slips, the sample copies of which have already been referred to in a preceding part of this judgment also repeated 1949 to be the appellants year of birth. The L.I.C. policy subscribed to by the appellant also carries the same date of birth.15. One of the factors that weighed with the Division Bench was that there was no challenge to entry in the service book, which should have been done within five years as per the DPE guidelines. We are unable to accept this reasoning as the service book contained 21st September 1949 as his date of birth and this was prepared in 1975. Thus, no occasion arose for approaching the employer for making any correction in the service book till 2002.16. This is not a case where a workman is seeking to change his date of birth to his benefit at the end of his career. This is a case where the employer is altering the records at the end of the career of the workman to his detriment on taking unilateral decision that the date of birth specified in the appellants service book was erroneous, relying on a date disclosed in a statutory form. Turning to Clause 5 of the Standing Order, we have already expressed our view on the evidentiary value of the entries in Form B as regards date of birth of a workman.17. Though in the Form B, the appellants age in 1971 was given as 26 years (the date of birth shown as 21st September 1945), in the subsequent documents the date appearing in service book had been reflected and it was the date reflected in the service book which formed the basis of the pay--slips as also the estimate statement of the appellants voluntary retirement benefits. In such circumstances, the appellants failure to seek correction in the Form B register could be condoned.This is a weak explanation in our opinion. Several subsequent steps were taken by the employer in relation to the appellants employment on the basis of the entry in his service book. The employer are the custodian of these records. They acted all along on the basis of the service entries till the appellant took VRS. It has been pleaded by the appellant that at the time of his appointment, the office of the respondent company entered in all their records his date of birth as 21st September 1949. In the light of these facts, we are not inclined to accept the version of the employer that service book recordal was a mistake. The employer, a public sector unit in this case, was expected to act with a certain element of responsibility in maintaining the service records of their workmen and ensure that there is uniformity in particulars concerning individual employees. There is no explanation as to how this mistake occurred and how pay slips continued to be issued carrying the mistaken date of birth for such a long time. The High Court in our view ought not to have had accepted mistake as the cause for different entries in different documents.The note sheet of the appellants meeting with the Assistant General Manager on 16th October 2002 has been annexed to the respondents counter-affidavit marked as R1. The note sheet records that the appellant had refused to put his signature thereon. Such refusal is not of much significance so far as adjudication of the subject- dispute is concerned. Fact remains that this note--sheet appears to be the first document by which the employer had alerted the appellant of their decision to rely on Form B entry for computing his age.20. The said document came into existence after the appellant was released from his service on 3rd October 2002. No document of earlier origin in this regard has been brought to our notice in course of hearing of this appeal. The appellant complained against such decision on 26th October 2002. Thus, the process of fixing of the appellants date of birth had continued beyond the date on which he was released from his service.21. We do not think the appellants complaint over the dispute was belated so as to non--suit him on this count alone. VRS benefit is an entitlement and assumes the character of property to the employee concerned once his application for VRS is accepted. It is the right of a person under Article 300A of the Constitution of India to have the VRS benefit to be given on accurate assessment thereof, the employer here being a public sector unit. If at the time of quantifying the VRS benefit after accepting an employees application for voluntary retirement, the employer take any step that would reduce such benefit in monetary terms, such step shall have to be taken under the authority of law. We find the action of the employer lacking in authority of law in this case on two counts. First, it fails for not adhering to the principles of natural justice. The decision not to follow the service book recordal was taken without giving an opportunity of hearing to the appellant. The opportunity of hearing of the appellant also accrued because the employer themselves had proceeded on the basis that the later date i.e., 21st September 1949 was the birthdate of the appellant and this was a long established position. Moreover, since in the own records of the employer two dates were shown, under normal circumstances it would have been incumbent on their part to undertake an exercise on application of mind to determine in which of these two records the mistake had crept in. That process would also have had to involve participation of the appellant, which would have been compatible with the principles of natural justice. There are several authorities in which this Court has deprecated the practice on the part of the employees at the fag end of their career to dispute the records pertaining to their dates of birth that would have the effect of extension of the length of their service. We are not referring to those authorities in this judgment as the ratio laid down on that count by this Court is not relevant for adjudication of this appeal. The very reasoning on which an employee is not permitted to raise age-correction plea at the fag end of his service to extend his tenure should also apply to the employer as well. It is the employer here who had proceeded on the basis of age of the appellant reflected in his service book during the latters service tenure and they ought not to be permitted to fall back on the Form B which would curtail the VRS benefit of the appellant.22. The principle of estoppel cannot be invoked in this case against the appellant to debar him from claiming the benefit properly computed as per his age reflected in the official documents. Occasion did not arise for the appellant to advert to the age correcting process so far as entry in the Form B is concerned as the employer themselves had treated his date of birth to be 21st September 1949 in the service book. | 0 | 5,153 | 2,097 | ### 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:
recorded of the appellant in the service book was an act by mistake. This is a weak explanation in our opinion. Several subsequent steps were taken by the employer in relation to the appellants employment on the basis of the entry in his service book. The employer are the custodian of these records. They acted all along on the basis of the service entries till the appellant took VRS. It has been pleaded by the appellant that at the time of his appointment, the office of the respondent company entered in all their records his date of birth as 21st September 1949. In the light of these facts, we are not inclined to accept the version of the employer that service book recordal was a mistake. The employer, a public sector unit in this case, was expected to act with a certain element of responsibility in maintaining the service records of their workmen and ensure that there is uniformity in particulars concerning individual employees. There is no explanation as to how this mistake occurred and how pay slips continued to be issued carrying the mistaken date of birth for such a long time. The High Court in our view ought not to have had accepted mistake as the cause for different entries in different documents. 19. The other point on which argument has been advanced on behalf of the employer is on the aspect of delay on the appellants part in questioning the mistake in the Form B. It has been urged by the respondents counsel that they had extended the sum as per the VRS package computed on the basis of 21st September 1945 as his date of birth and complaint on that count was raised by the appellant after receiving such benefits. It is their case that the anomaly was discovered sometime in July--August 2002 and the appellant was asked to appear before a higher authority, which he did on 16th October 2002. The note sheet of the appellants meeting with the Assistant General Manager on 16th October 2002 has been annexed to the respondents counter-affidavit marked as R1. The note sheet records that the appellant had refused to put his signature thereon. Such refusal is not of much significance so far as adjudication of the subject- dispute is concerned. Fact remains that this note--sheet appears to be the first document by which the employer had alerted the appellant of their decision to rely on Form B entry for computing his age. 20. The said document came into existence after the appellant was released from his service on 3rd October 2002. No document of earlier origin in this regard has been brought to our notice in course of hearing of this appeal. The appellant complained against such decision on 26th October 2002. Thus, the process of fixing of the appellants date of birth had continued beyond the date on which he was released from his service. 21. We do not think the appellants complaint over the dispute was belated so as to non--suit him on this count alone. VRS benefit is an entitlement and assumes the character of property to the employee concerned once his application for VRS is accepted. It is the right of a person under Article 300A of the Constitution of India to have the VRS benefit to be given on accurate assessment thereof, the employer here being a public sector unit. If at the time of quantifying the VRS benefit after accepting an employees application for voluntary retirement, the employer take any step that would reduce such benefit in monetary terms, such step shall have to be taken under the authority of law. We find the action of the employer lacking in authority of law in this case on two counts. First, it fails for not adhering to the principles of natural justice. The decision not to follow the service book recordal was taken without giving an opportunity of hearing to the appellant. The opportunity of hearing of the appellant also accrued because the employer themselves had proceeded on the basis that the later date i.e., 21st September 1949 was the birthdate of the appellant and this was a long established position. Moreover, since in the own records of the employer two dates were shown, under normal circumstances it would have been incumbent on their part to undertake an exercise on application of mind to determine in which of these two records the mistake had crept in. That process would also have had to involve participation of the appellant, which would have been compatible with the principles of natural justice. There are several authorities in which this Court has deprecated the practice on the part of the employees at the fag end of their career to dispute the records pertaining to their dates of birth that would have the effect of extension of the length of their service. We are not referring to those authorities in this judgment as the ratio laid down on that count by this Court is not relevant for adjudication of this appeal. The very reasoning on which an employee is not permitted to raise age-correction plea at the fag end of his service to extend his tenure should also apply to the employer as well. It is the employer here who had proceeded on the basis of age of the appellant reflected in his service book during the latters service tenure and they ought not to be permitted to fall back on the Form B which would curtail the VRS benefit of the appellant. 22. The principle of estoppel cannot be invoked in this case against the appellant to debar him from claiming the benefit properly computed as per his age reflected in the official documents. Occasion did not arise for the appellant to advert to the age correcting process so far as entry in the Form B is concerned as the employer themselves had treated his date of birth to be 21st September 1949 in the service book.
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0
### Explanation:
appellants service book was erroneous, relying on a date disclosed in a statutory form. Turning to Clause 5 of the Standing Order, we have already expressed our view on the evidentiary value of the entries in Form B as regards date of birth of a workman.17. Though in the Form B, the appellants age in 1971 was given as 26 years (the date of birth shown as 21st September 1945), in the subsequent documents the date appearing in service book had been reflected and it was the date reflected in the service book which formed the basis of the pay--slips as also the estimate statement of the appellants voluntary retirement benefits. In such circumstances, the appellants failure to seek correction in the Form B register could be condoned.This is a weak explanation in our opinion. Several subsequent steps were taken by the employer in relation to the appellants employment on the basis of the entry in his service book. The employer are the custodian of these records. They acted all along on the basis of the service entries till the appellant took VRS. It has been pleaded by the appellant that at the time of his appointment, the office of the respondent company entered in all their records his date of birth as 21st September 1949. In the light of these facts, we are not inclined to accept the version of the employer that service book recordal was a mistake. The employer, a public sector unit in this case, was expected to act with a certain element of responsibility in maintaining the service records of their workmen and ensure that there is uniformity in particulars concerning individual employees. There is no explanation as to how this mistake occurred and how pay slips continued to be issued carrying the mistaken date of birth for such a long time. The High Court in our view ought not to have had accepted mistake as the cause for different entries in different documents.The note sheet of the appellants meeting with the Assistant General Manager on 16th October 2002 has been annexed to the respondents counter-affidavit marked as R1. The note sheet records that the appellant had refused to put his signature thereon. Such refusal is not of much significance so far as adjudication of the subject- dispute is concerned. Fact remains that this note--sheet appears to be the first document by which the employer had alerted the appellant of their decision to rely on Form B entry for computing his age.20. The said document came into existence after the appellant was released from his service on 3rd October 2002. No document of earlier origin in this regard has been brought to our notice in course of hearing of this appeal. The appellant complained against such decision on 26th October 2002. Thus, the process of fixing of the appellants date of birth had continued beyond the date on which he was released from his service.21. We do not think the appellants complaint over the dispute was belated so as to non--suit him on this count alone. VRS benefit is an entitlement and assumes the character of property to the employee concerned once his application for VRS is accepted. It is the right of a person under Article 300A of the Constitution of India to have the VRS benefit to be given on accurate assessment thereof, the employer here being a public sector unit. If at the time of quantifying the VRS benefit after accepting an employees application for voluntary retirement, the employer take any step that would reduce such benefit in monetary terms, such step shall have to be taken under the authority of law. We find the action of the employer lacking in authority of law in this case on two counts. First, it fails for not adhering to the principles of natural justice. The decision not to follow the service book recordal was taken without giving an opportunity of hearing to the appellant. The opportunity of hearing of the appellant also accrued because the employer themselves had proceeded on the basis that the later date i.e., 21st September 1949 was the birthdate of the appellant and this was a long established position. Moreover, since in the own records of the employer two dates were shown, under normal circumstances it would have been incumbent on their part to undertake an exercise on application of mind to determine in which of these two records the mistake had crept in. That process would also have had to involve participation of the appellant, which would have been compatible with the principles of natural justice. There are several authorities in which this Court has deprecated the practice on the part of the employees at the fag end of their career to dispute the records pertaining to their dates of birth that would have the effect of extension of the length of their service. We are not referring to those authorities in this judgment as the ratio laid down on that count by this Court is not relevant for adjudication of this appeal. The very reasoning on which an employee is not permitted to raise age-correction plea at the fag end of his service to extend his tenure should also apply to the employer as well. It is the employer here who had proceeded on the basis of age of the appellant reflected in his service book during the latters service tenure and they ought not to be permitted to fall back on the Form B which would curtail the VRS benefit of the appellant.22. The principle of estoppel cannot be invoked in this case against the appellant to debar him from claiming the benefit properly computed as per his age reflected in the official documents. Occasion did not arise for the appellant to advert to the age correcting process so far as entry in the Form B is concerned as the employer themselves had treated his date of birth to be 21st September 1949 in the service book.
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Commissioner Of Wealth Tax West Bengal Vs. Imperial Tobacco Co. Of India Ltd | Income-tax Appellate Tribunal Bombay v. B. P. Byramji and Co. 1946-14 ITR 174: (AIR 1946 Nag 188) where it was again emphasised that a mere change of opinion by the Income-tax Officer is no ground for taking action under S. 34.8. Further in Bhimraj Panalal v. Commissioner of Income-tax B and O,1957-32 ITR 289 : (AIR 1957 Pat 638 ), it was held by the Patna High Court that "an order of assessment made after investigation by a particular officer should not at his sweet will and pleasure be allowed to be revised merely because he changed his opinion and that there must exist something either suppressed by the assessee or a fact or a point of law which was inadvertently or otherwise omitted to be considered by the Income-tax Officer, before he can proceed to act under .S. 34;and a mere change of opinion on the same facts and law is not covered by that section."9. The appellant on the other hand relies on some recent decisions which show that there some divergence of opinion in the High Courts on this question. In Salem Provident Fund Society Ltd. v. Commissioner of Income-tax Madras, 1961-42 ITR 547 (Mad) the Madras High Court held that "information for the purpose of section 34 need not be wholly extraneous to the record of the original assessment. A mistake apparent on the face of the order of assessment would itself constitute information whether someone else gave that information to the Income-tax Officer or whether he informed himself was immaterial."10. In Commissioner of Income-tax Madras v. Rathinasabhapathy Mudaliar, 1964-51 ITR 204 (Mad), the Madras High Court again held that "the discovery of the Income-tax Officer after he had made the assessments that he had committed an error in not including the minors income in the father" assessment was information obtained after the assessment, and even though all the facts were in the original records, the case was covered by Section 34 (1) (b) of the Income-tax Act and the re-assessment was not invalid, and this was not a case of mere change of opinion on the same facts but a case of getting information that income had escaped assessment."11. In Canara Industrial and Banking Syndicate Ltd. v. Commissioner of Income-tax, Mysore, 1964-51 ITR 479 (Mys), the Mysore High Court held that "if income had escaped assessment owing to the failure of the Income-tax Officer to understand the true implication of a notification, and the Income-tax Officer later on finds that on a correct interpretation of the notification the income was liable to be assessed, he can take proceedings under S. 34 for assessment of such income; the word information in S. 34 is wide enough to apply to such a case."12. The last case to which reference is made is Asghar Ali Mohammad Ali v. Commissioner of Income-tax. 1964-52 ITR 962 (All), wherein the Allahabad High Court held that "the word information used in the provision covers all kinds of information received from any person whatsoever or in any manner whatsoever ; all that is required is that the Income-tax Officer should learn something i.e., he should know something which he did not know previously." It was further held that "if there is information leading to the belief that income has escaped assessment, the mere that fact this information has resulted in a change of opinion will not make S. 34 inapplicable. A change of opinion is not sufficient for initiating proceedings under. S. E34, only when such change of opinion is the result of a different method of reasoning and not based on information.13. It does appeal that some High Courts at any rate are taking the view that a change of opinion by the Income-tax Officer in certain circumstance will be sufficient for the purpose of S. 34 (1) (b) and will justify the issue of a notice thereunder. It may be added that after the decision of this Court in Kamal Singhs case, (1959) Supp 1 SCR 10 : 1959-35 1TR 1: (AIR 1959 SCR 257), it is now settled that information in S. 34 (1) (b) included information as to the true and correct state of law, and so would cover information as to relevant judicial decisions and that such information for the purpose of S. 34 (1) (b) of the income-tax Act need not be confined only to cases where the Income-tax Officer discovers as a fact that income has escaped assessment. To that extent the decision of the Bombay High Court in Mohamed Yusuf Ismali, 1944-12 ITR 8 : (AIR 1944 Bom 160 ), has been overruled. That is why the Appellate Tribunal stated if its decision that if the notices in the present case had been issued after the decisions of the Appellate Assistant Commissioner in the appeal from the assessment for the year 1959-60, there would have been information in possession of the Wealth-tax Officer to justify him in issuing notices under S. 17 (b) of the Act. But in the present case the Wealth-tax Officer issued notices before that decision was known to him and the question is whether in their circumstances in view of the later decisions of the High Courts to which we have referred a Question of law arose or not. The language of S. 17 (b) of the Act is pari materia with the language of Section 34 (1) (b) of the Income-tax Act and therefore the decisions under S.34 (1) (b) ibid would be relevant in construing the scope and effect of S. 17 (b) of the Act. There does appear to be divergence of opinion among the High Courts as to the meaning of the word "information" in Section 34 (1) (b) of the Income-tax Act, and in view of that divergence we are of opinion that a question of law did arise in the present case as to the interpretation of the word "information" in S. 17 (b) of the Act and should have been referred by the Tribunal. | 1[ds]13. It does appeal that some High Courts at any rate are taking the view that a change of opinion by the Income-tax Officer in certain circumstance will be sufficient for the purpose of S. 34 (1) (b) and will justify the issue of a notice thereunder. It may be added that after the decision of this Court in Kamal Singhs case, (1959) Supp 1 SCR 10 : 1959-35 1TR 1: (AIR 1959 SCR 257), it is now settled that information in S. 34 (1) (b) included information as to the true and correct state of law, and so would cover information as to relevant judicial decisions and that such information for the purpose of S. 34 (1) (b) of the income-tax Act need not be confined only to cases where the Income-tax Officer discovers as a fact that income has escaped assessment. To that extent the decision of the Bombay High Court in Mohamed Yusuf Ismali, 1944-12 ITR 8 : (AIR 1944 Bom 160 ), has been overruled. That is why the Appellate Tribunal stated if its decision that if the notices in the present case had been issued after the decisions of the Appellate Assistant Commissioner in the appeal from the assessment for the year 1959-60, there would have been information in possession of the Wealth-tax Officer to justify him in issuing notices under S. 17 (b) of the Act. But in the present case the Wealth-tax Officer issued notices before that decision was known to him and the question is whether in their circumstances in view of the later decisions of the High Courts to which we have referred a Question of law arose or not. The language of S. 17 (b) of the Act is pari materia with the language of Section 34 (1) (b) of the Income-tax Act and therefore the decisions under S.34 (1) (b) ibid would be relevant in construing the scope and effect of S. 17 (b) of the Act. There does appear to be divergence of opinion among the High Courts as to the meaning of the word "information" in Section 34 (1) (b) of the Income-tax Act, and in view of that divergence we are of opinion that a question of law did arise in the present case as to the interpretation of the word "information" in S. 17 (b) of the Act and should have been referred by the Tribunal. | 1 | 2,639 | 462 | ### 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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Income-tax Appellate Tribunal Bombay v. B. P. Byramji and Co. 1946-14 ITR 174: (AIR 1946 Nag 188) where it was again emphasised that a mere change of opinion by the Income-tax Officer is no ground for taking action under S. 34.8. Further in Bhimraj Panalal v. Commissioner of Income-tax B and O,1957-32 ITR 289 : (AIR 1957 Pat 638 ), it was held by the Patna High Court that "an order of assessment made after investigation by a particular officer should not at his sweet will and pleasure be allowed to be revised merely because he changed his opinion and that there must exist something either suppressed by the assessee or a fact or a point of law which was inadvertently or otherwise omitted to be considered by the Income-tax Officer, before he can proceed to act under .S. 34;and a mere change of opinion on the same facts and law is not covered by that section."9. The appellant on the other hand relies on some recent decisions which show that there some divergence of opinion in the High Courts on this question. In Salem Provident Fund Society Ltd. v. Commissioner of Income-tax Madras, 1961-42 ITR 547 (Mad) the Madras High Court held that "information for the purpose of section 34 need not be wholly extraneous to the record of the original assessment. A mistake apparent on the face of the order of assessment would itself constitute information whether someone else gave that information to the Income-tax Officer or whether he informed himself was immaterial."10. In Commissioner of Income-tax Madras v. Rathinasabhapathy Mudaliar, 1964-51 ITR 204 (Mad), the Madras High Court again held that "the discovery of the Income-tax Officer after he had made the assessments that he had committed an error in not including the minors income in the father" assessment was information obtained after the assessment, and even though all the facts were in the original records, the case was covered by Section 34 (1) (b) of the Income-tax Act and the re-assessment was not invalid, and this was not a case of mere change of opinion on the same facts but a case of getting information that income had escaped assessment."11. In Canara Industrial and Banking Syndicate Ltd. v. Commissioner of Income-tax, Mysore, 1964-51 ITR 479 (Mys), the Mysore High Court held that "if income had escaped assessment owing to the failure of the Income-tax Officer to understand the true implication of a notification, and the Income-tax Officer later on finds that on a correct interpretation of the notification the income was liable to be assessed, he can take proceedings under S. 34 for assessment of such income; the word information in S. 34 is wide enough to apply to such a case."12. The last case to which reference is made is Asghar Ali Mohammad Ali v. Commissioner of Income-tax. 1964-52 ITR 962 (All), wherein the Allahabad High Court held that "the word information used in the provision covers all kinds of information received from any person whatsoever or in any manner whatsoever ; all that is required is that the Income-tax Officer should learn something i.e., he should know something which he did not know previously." It was further held that "if there is information leading to the belief that income has escaped assessment, the mere that fact this information has resulted in a change of opinion will not make S. 34 inapplicable. A change of opinion is not sufficient for initiating proceedings under. S. E34, only when such change of opinion is the result of a different method of reasoning and not based on information.13. It does appeal that some High Courts at any rate are taking the view that a change of opinion by the Income-tax Officer in certain circumstance will be sufficient for the purpose of S. 34 (1) (b) and will justify the issue of a notice thereunder. It may be added that after the decision of this Court in Kamal Singhs case, (1959) Supp 1 SCR 10 : 1959-35 1TR 1: (AIR 1959 SCR 257), it is now settled that information in S. 34 (1) (b) included information as to the true and correct state of law, and so would cover information as to relevant judicial decisions and that such information for the purpose of S. 34 (1) (b) of the income-tax Act need not be confined only to cases where the Income-tax Officer discovers as a fact that income has escaped assessment. To that extent the decision of the Bombay High Court in Mohamed Yusuf Ismali, 1944-12 ITR 8 : (AIR 1944 Bom 160 ), has been overruled. That is why the Appellate Tribunal stated if its decision that if the notices in the present case had been issued after the decisions of the Appellate Assistant Commissioner in the appeal from the assessment for the year 1959-60, there would have been information in possession of the Wealth-tax Officer to justify him in issuing notices under S. 17 (b) of the Act. But in the present case the Wealth-tax Officer issued notices before that decision was known to him and the question is whether in their circumstances in view of the later decisions of the High Courts to which we have referred a Question of law arose or not. The language of S. 17 (b) of the Act is pari materia with the language of Section 34 (1) (b) of the Income-tax Act and therefore the decisions under S.34 (1) (b) ibid would be relevant in construing the scope and effect of S. 17 (b) of the Act. There does appear to be divergence of opinion among the High Courts as to the meaning of the word "information" in Section 34 (1) (b) of the Income-tax Act, and in view of that divergence we are of opinion that a question of law did arise in the present case as to the interpretation of the word "information" in S. 17 (b) of the Act and should have been referred by the Tribunal.
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13. It does appeal that some High Courts at any rate are taking the view that a change of opinion by the Income-tax Officer in certain circumstance will be sufficient for the purpose of S. 34 (1) (b) and will justify the issue of a notice thereunder. It may be added that after the decision of this Court in Kamal Singhs case, (1959) Supp 1 SCR 10 : 1959-35 1TR 1: (AIR 1959 SCR 257), it is now settled that information in S. 34 (1) (b) included information as to the true and correct state of law, and so would cover information as to relevant judicial decisions and that such information for the purpose of S. 34 (1) (b) of the income-tax Act need not be confined only to cases where the Income-tax Officer discovers as a fact that income has escaped assessment. To that extent the decision of the Bombay High Court in Mohamed Yusuf Ismali, 1944-12 ITR 8 : (AIR 1944 Bom 160 ), has been overruled. That is why the Appellate Tribunal stated if its decision that if the notices in the present case had been issued after the decisions of the Appellate Assistant Commissioner in the appeal from the assessment for the year 1959-60, there would have been information in possession of the Wealth-tax Officer to justify him in issuing notices under S. 17 (b) of the Act. But in the present case the Wealth-tax Officer issued notices before that decision was known to him and the question is whether in their circumstances in view of the later decisions of the High Courts to which we have referred a Question of law arose or not. The language of S. 17 (b) of the Act is pari materia with the language of Section 34 (1) (b) of the Income-tax Act and therefore the decisions under S.34 (1) (b) ibid would be relevant in construing the scope and effect of S. 17 (b) of the Act. There does appear to be divergence of opinion among the High Courts as to the meaning of the word "information" in Section 34 (1) (b) of the Income-tax Act, and in view of that divergence we are of opinion that a question of law did arise in the present case as to the interpretation of the word "information" in S. 17 (b) of the Act and should have been referred by the Tribunal.
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Rajkumari and Anr Vs. S.H.O., Noida and Ors | to the police personnel of the concerned police station to arrest the leaders of the workers who had resorted to violence. According to the respondents, the investigation done by them showed that petitioner no.1 Rajkumari was leading a mob of workers and had incited them and as a result whereof, they caused injuries to the managing staff and owners of the industrial units and caused damage to the property. In fact, the police after completing investigation has submitted charge sheet against petitioner no.1 under Sections 147/323/427 IPC in case Crime No. 327G and under Sections 147/323/427/506 IPC in Case Crime No. 327H on 11.10.1998. The concerned ACJM has taken cognizance of the offences and has issued process against petitioner no.1 vide his orders dated 2.11.1998. The petitioner no.1 is now facing trial in the aforesaid two criminal cases. 12. The main allegation in the writ petitions as also in the contempt petitions is that petitioner no.1 was arrested by the police at about 1.30 a.m. in the night intervening 15/16.8.1997. On the other hand, the specific case of the respondents is that she was not arrested in the night, as alleged, but was arrested at about 5.30 a.m. on 16.8.1997. In support of her version, the only affidavit on record is that of petitioner no.1 herself. She has not filed affidavit of any other person to corroborate her version of the incident. On the other hand, Shri Rama Kant Prasad, Dy. S.P., Noida, Shri Devinder Singh, Shri P.R. Singh and Shri B.D. Dubey have filed affidavits denying the version of petitioner no.1 and have averred that she was arrested at 5.30 a.m. in the morning hours. A rejoinder affidavit has also been filed by petitioner no.1 herself and no other affidavit or corroborating material has been filed to support her version of the time of her arrest. In view of these conflicting affidavits and no independent or corroborative material having been filed on behalf of the petitioners, it is not possible to hold that petitioner no.1 had been arrested at 1.30 a.m. in the night intervening 15/16.8.1997 or that the version given by the respondents that she was arrested at 5.30 a.m. on 16.8.1997 is not correct. In case the investigation officer of Case Crime No. 327G and 327H came to the conclusion that petitioner no.1 had committed cognizable offences, he was perfectly within his right to arrest her and no exception can be taken to such a course of action. 13. Regarding the plea taken by petitioner no.1 that the directions issued by this Court in Joginder Kumar (supra) and D.K. Basu (supra) had not been violated, it may be stated at the very outset that admittedly petitioner no.1 was produced in the Court of concerned Magistrate on that very day i.e. on 16.8.1997. She applied for bail in both the cases and in the bail applications, the pleas taken by her were (i) that she had been falsely implicated in the case; (ii) that she had no criminal background; (iii) that there is no public witness of the crime in question; (iv) that she is a lady and belongs to a respectably family; (v) that she is prepared to furnish adequate surety; and (vi) that there is no apprehension of tampering with prosecution witnesses from her side. She did not state anything nor did she make any grievance before the concerned Magistrate regarding non-compliance of the directions issued in the aforesaid two cases, though her bail application was drafted and filed by a lawyer. If the plea taken now in the writ petitions was correct, in normal course grievance regarding the same should have been made on that very day when she was produced before the Magistrate especially when the legal aid and advice of a counsel was available to her. 14. In the affidavits filed by the respondents, it is averred that the name plate showing their name and designation was affixed on the uniform of all the police personnel; that it was a lady Constable Saroj Sharma, who had formally arrested petitioner no.1; that the grounds of arrest were disclosed not only to her but also to her son and husband; that her family members including her son and husband, some relations and friends were throughout present at the police station and that she was sent to the Court of the concerned Magistrate at 9.15 a.m. It is averred that an arrest memo was prepared at the time of her arrest and she was asked to sign the same but she refused to do. It is further averred that the police personnel who arrested her informed that she would be released on bail in case she furnished bail bonds but she declined to do so by saying that she was a ‘Neta’ and her obtaining bail would lower her image before the workers and they would feel demoralized. A copy of the arrest memo has also been placed on record. Apart from her own affidavit, petitioner no.1 has not filed affidavit of any other person to show that the version given by the respondents is not correct. She could have easily filed affidavits of her son and husband, but she has chosen not to do so. On the material which is available on record, it is not possible to hold that the directions issued in Joginder Kumar (supra) and D.K. Basu (supra) were flouted or were not complied with by the respondents. In these circumstances, we are of the opinion that no ground has been made out for initiating any action against the respondents.15. Learned counsel for the petitioners has not made any submission regarding the prayer made in the writ petitions that a general direction may be issued to the respondents to stop arresting women between sunset and sunrise except in grave offences like murder. We are also of the opinion that this is not a fit case where some general directions may be issued and this may be done in a more appropriate case. | 0[ds]14. In the affidavits filed by the respondents, it is averred that the name plate showing their name and designation was affixed on the uniform of all the police personnel; that it was a lady Constable Saroj Sharma, who had formally arrested petitioner no.1; that the grounds of arrest were disclosed not only to her but also to her son and husband; that her family members including her son and husband, some relations and friends were throughout present at the police station and that she was sent to the Court of the concerned Magistrate at 9.15 a.m. It is averred that an arrest memo was prepared at the time of her arrest and she was asked to sign the same but she refused to do. It is further averred that the police personnel who arrested her informed that she would be released on bail in case she furnished bail bonds but she declined to do so by saying that she was aand her obtaining bail would lower her image before the workers and they would feel demoralized. A copy of the arrest memo has also been placed on record. Apart from her own affidavit, petitioner no.1 has not filed affidavit of any other person to show that the version given by the respondents is not correct. She could have easily filed affidavits of her son and husband, but she has chosen not to do so. On the material which is available on record, it is not possible to hold that the directions issued in Joginder Kumar (supra) and D.K. Basu (supra) were flouted or were not complied with by the respondents. In these circumstances, we are of the opinion that no ground has been made out for initiating any action against the respondents.15. Learned counsel for the petitioners has not made any submission regarding the prayer made in the writ petitions that a general direction may be issued to the respondents to stop arresting women between sunset and sunrise except in grave offences like murder. We are also of the opinion that this is not a fit case where some general directions may be issued and this may be done in a more appropriate case.Regarding the plea taken by petitioner no.1 that the directions issued by this Court in Joginder Kumar (supra) and D.K. Basu (supra) had not been violated, it may be stated at the very outset that admittedly petitioner no.1 was produced in the Court of concerned Magistrate on that very day i.e. on 16.8.1997. She applied for bail in both the cases and in the bail applications, the pleas taken by her were (i) that she had been falsely implicated in the case; (ii) that she had no criminal background; (iii) that there is no public witness of the crime in question; (iv) that she is a lady and belongs to a respectably family; (v) that she is prepared to furnish adequate surety; and (vi) that there is no apprehension of tampering with prosecution witnesses from her side. She did not state anything nor did she make any grievance before the concerned Magistrate regardingof the directions issued in the aforesaid two cases, though her bail application was drafted and filed by a lawyer. If the plea taken now in the writ petitions was correct, in normal course grievance regarding the same should have been made on that very day when she was produced before the Magistrate especially when the legal aid and advice of a counsel was available to her. | 0 | 3,813 | 643 | ### 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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to the police personnel of the concerned police station to arrest the leaders of the workers who had resorted to violence. According to the respondents, the investigation done by them showed that petitioner no.1 Rajkumari was leading a mob of workers and had incited them and as a result whereof, they caused injuries to the managing staff and owners of the industrial units and caused damage to the property. In fact, the police after completing investigation has submitted charge sheet against petitioner no.1 under Sections 147/323/427 IPC in case Crime No. 327G and under Sections 147/323/427/506 IPC in Case Crime No. 327H on 11.10.1998. The concerned ACJM has taken cognizance of the offences and has issued process against petitioner no.1 vide his orders dated 2.11.1998. The petitioner no.1 is now facing trial in the aforesaid two criminal cases. 12. The main allegation in the writ petitions as also in the contempt petitions is that petitioner no.1 was arrested by the police at about 1.30 a.m. in the night intervening 15/16.8.1997. On the other hand, the specific case of the respondents is that she was not arrested in the night, as alleged, but was arrested at about 5.30 a.m. on 16.8.1997. In support of her version, the only affidavit on record is that of petitioner no.1 herself. She has not filed affidavit of any other person to corroborate her version of the incident. On the other hand, Shri Rama Kant Prasad, Dy. S.P., Noida, Shri Devinder Singh, Shri P.R. Singh and Shri B.D. Dubey have filed affidavits denying the version of petitioner no.1 and have averred that she was arrested at 5.30 a.m. in the morning hours. A rejoinder affidavit has also been filed by petitioner no.1 herself and no other affidavit or corroborating material has been filed to support her version of the time of her arrest. In view of these conflicting affidavits and no independent or corroborative material having been filed on behalf of the petitioners, it is not possible to hold that petitioner no.1 had been arrested at 1.30 a.m. in the night intervening 15/16.8.1997 or that the version given by the respondents that she was arrested at 5.30 a.m. on 16.8.1997 is not correct. In case the investigation officer of Case Crime No. 327G and 327H came to the conclusion that petitioner no.1 had committed cognizable offences, he was perfectly within his right to arrest her and no exception can be taken to such a course of action. 13. Regarding the plea taken by petitioner no.1 that the directions issued by this Court in Joginder Kumar (supra) and D.K. Basu (supra) had not been violated, it may be stated at the very outset that admittedly petitioner no.1 was produced in the Court of concerned Magistrate on that very day i.e. on 16.8.1997. She applied for bail in both the cases and in the bail applications, the pleas taken by her were (i) that she had been falsely implicated in the case; (ii) that she had no criminal background; (iii) that there is no public witness of the crime in question; (iv) that she is a lady and belongs to a respectably family; (v) that she is prepared to furnish adequate surety; and (vi) that there is no apprehension of tampering with prosecution witnesses from her side. She did not state anything nor did she make any grievance before the concerned Magistrate regarding non-compliance of the directions issued in the aforesaid two cases, though her bail application was drafted and filed by a lawyer. If the plea taken now in the writ petitions was correct, in normal course grievance regarding the same should have been made on that very day when she was produced before the Magistrate especially when the legal aid and advice of a counsel was available to her. 14. In the affidavits filed by the respondents, it is averred that the name plate showing their name and designation was affixed on the uniform of all the police personnel; that it was a lady Constable Saroj Sharma, who had formally arrested petitioner no.1; that the grounds of arrest were disclosed not only to her but also to her son and husband; that her family members including her son and husband, some relations and friends were throughout present at the police station and that she was sent to the Court of the concerned Magistrate at 9.15 a.m. It is averred that an arrest memo was prepared at the time of her arrest and she was asked to sign the same but she refused to do. It is further averred that the police personnel who arrested her informed that she would be released on bail in case she furnished bail bonds but she declined to do so by saying that she was a ‘Neta’ and her obtaining bail would lower her image before the workers and they would feel demoralized. A copy of the arrest memo has also been placed on record. Apart from her own affidavit, petitioner no.1 has not filed affidavit of any other person to show that the version given by the respondents is not correct. She could have easily filed affidavits of her son and husband, but she has chosen not to do so. On the material which is available on record, it is not possible to hold that the directions issued in Joginder Kumar (supra) and D.K. Basu (supra) were flouted or were not complied with by the respondents. In these circumstances, we are of the opinion that no ground has been made out for initiating any action against the respondents.15. Learned counsel for the petitioners has not made any submission regarding the prayer made in the writ petitions that a general direction may be issued to the respondents to stop arresting women between sunset and sunrise except in grave offences like murder. We are also of the opinion that this is not a fit case where some general directions may be issued and this may be done in a more appropriate case.
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0
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14. In the affidavits filed by the respondents, it is averred that the name plate showing their name and designation was affixed on the uniform of all the police personnel; that it was a lady Constable Saroj Sharma, who had formally arrested petitioner no.1; that the grounds of arrest were disclosed not only to her but also to her son and husband; that her family members including her son and husband, some relations and friends were throughout present at the police station and that she was sent to the Court of the concerned Magistrate at 9.15 a.m. It is averred that an arrest memo was prepared at the time of her arrest and she was asked to sign the same but she refused to do. It is further averred that the police personnel who arrested her informed that she would be released on bail in case she furnished bail bonds but she declined to do so by saying that she was aand her obtaining bail would lower her image before the workers and they would feel demoralized. A copy of the arrest memo has also been placed on record. Apart from her own affidavit, petitioner no.1 has not filed affidavit of any other person to show that the version given by the respondents is not correct. She could have easily filed affidavits of her son and husband, but she has chosen not to do so. On the material which is available on record, it is not possible to hold that the directions issued in Joginder Kumar (supra) and D.K. Basu (supra) were flouted or were not complied with by the respondents. In these circumstances, we are of the opinion that no ground has been made out for initiating any action against the respondents.15. Learned counsel for the petitioners has not made any submission regarding the prayer made in the writ petitions that a general direction may be issued to the respondents to stop arresting women between sunset and sunrise except in grave offences like murder. We are also of the opinion that this is not a fit case where some general directions may be issued and this may be done in a more appropriate case.Regarding the plea taken by petitioner no.1 that the directions issued by this Court in Joginder Kumar (supra) and D.K. Basu (supra) had not been violated, it may be stated at the very outset that admittedly petitioner no.1 was produced in the Court of concerned Magistrate on that very day i.e. on 16.8.1997. She applied for bail in both the cases and in the bail applications, the pleas taken by her were (i) that she had been falsely implicated in the case; (ii) that she had no criminal background; (iii) that there is no public witness of the crime in question; (iv) that she is a lady and belongs to a respectably family; (v) that she is prepared to furnish adequate surety; and (vi) that there is no apprehension of tampering with prosecution witnesses from her side. She did not state anything nor did she make any grievance before the concerned Magistrate regardingof the directions issued in the aforesaid two cases, though her bail application was drafted and filed by a lawyer. If the plea taken now in the writ petitions was correct, in normal course grievance regarding the same should have been made on that very day when she was produced before the Magistrate especially when the legal aid and advice of a counsel was available to her.
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Commssioner Of Income Tax, West Bengal Vs. Kamal Behari Lal Singha Etc | these appeals the dispute centres round the taxability of that share of the dividend which has been paid out of the capital gains in the lands of the company. The Income -tax Officer came to the conclusion that no, dividend distributed can be considered as having been paid out of the "capital gains" of the company; therefore the same is taxable as "dividend". In appeal the Appellate Assistant Commissioner accepted the contention of the assessee that the receipt of Rs. 8829/- cannot be considered as dividend within the meaning of S. 2 (6A) of the Act but he held that the same is taxable as income in the hands of the assessee. The Tribunal confirmed the order of the Appellate Assistant Commissioner.4. It is now well settled that in order to find out whether a receipt is a capital receipt or a Revenue receipt one has to see what it is in the hands of the receiver and not its nature in the hands of the payer. In other words, the nature of receipt is determined entirely by its character in the hands of the receiver and the source from which the payment is made has no bearing on the question. Where an amount is paid which, so far as the payer is concerned, is paid wholly or partly out of the capital, and the receiver receives it as income on his part, the entire receipt is taxable in the hands of the receiver. Therefore the fact that the amount sought to be taxed in these appeals was capital gains in the hands of the company is not a relevant circumstance. What we have see is what it was in the hands of the assessees. The question whether a particular receipt is a capital receipt or a revenue receipt is a somewhat difficult question to decide though the principles bearing on the question are well settled. The application of those principles to a given set of facts often creates difficulties. The decision by and large depends upon the facts of each case.5. So far as the first question set out earlier is concerned the same is settled by the decision of this Court in Commissioner of Income-Tax, West Bengal v. Nalin Behari Lall Singha, 74 ITR 849 = (AIR 1970 SC 388 ). The assessee therein was also one of the shareholders of Ukhara Estate Zamindaries Ltd. His case was no different from that of the respondents herein. But the only point that arose for decision in that appeal was whether the receipts similar to those we are considering here can be considered as "dividends"? This court answered that question in the negative. This Court refused to go into the question whether the same could be considered as income other than dividend. Dealing with that contention this Court observed:"Counsel for the revenue sought to argue that the share of dividend which is not chargeable to tax by virtue of the exemption clause is still liable to tax as income other than dividend. But no such contention was raised before the Tribunal or the High Court and no question was raised in that behalf. We will not be justified in entering upon the question which was not raised or argued before the Tribunal and before the High Court."6. In these appeals we have to decide what was left undecided in that case.7. Coming back to the question how exactly to draw the line between a capital receipt and a revenue receipt in cases of the type that are before us, one can do no better than refer to the observations of Finlay J. in Trustees of the Will of H. K. Brodie (deceased) v. Commissioner of Inland Revenue (1933)17 Tax Cas 432 at p. 439."But, I think, the governing consideration is this: the question being, was the sum received as income, one has to consider what was the source from which it was received and what were the circumstances in which it was received. If the capital belonged to the person receiving the sums - if he or she was beneficially entitled not only to the income but to the capital - then I should think that, when the payments were made, they ought to be regarded, and would be regarded, as payment out of capital, but where there is a right to the income, but the capital belongs to somebody else, then, if payments out of capital are made and made in such a form that they come into the hands of the beneficiaries as income, it seems to me that they are income and not the less income, not of the person receiving them but in the hands of somebody else - capital."8. The above observations, in our opinion, correctly set out the law.9. Let us now turn to the facts of this case. The assessees were shareholders in the company.They were beneficially entitled to the capital of the company. The amount with which we are concerned in these appeals was received by the company as Selamis and as compensation for the acquisition of the lands of the company. It was not something earned by the company in the course of its business. Undoubtedly it was a capital receipt in the hands of the company but that by itself is not sufficient. We have next to see whether it was a capital receipt in the hands of the assessee. As mentioned earlier, the assessee had a beneficial interest in that sum, when it was in the hands of the company. Therefore when that sum was distributed amongst the shareholders of the company, each of the, shareholders took a share of the capital asset in which they were beneficially entitled. That being so the receipt with which we are concerned in these appeals must also be considered as capital receipt. The fact that those sums were distributed as dividends does not change the true nature of the receipt. A receipt is what it is and not what it is called. | 0[ds]4. It is now well settled that in order to find out whether a receipt is a capital receipt or a Revenue receipt one has to see what it is in the hands of the receiver and not its nature in the hands of the payer. In other words, the nature of receipt is determined entirely by its character in the hands of the receiver and the source from which the payment is made has no bearing on the question. Where an amount is paid which, so far as the payer is concerned, is paid wholly or partly out of the capital, and the receiver receives it as income on his part, the entire receipt is taxable in the hands of the receiver. Therefore the fact that the amount sought to be taxed in these appeals was capital gains in the hands of the company is not a relevant circumstance. What we have see is what it was in the hands of the assessees. The question whether a particular receipt is a capital receipt or a revenue receipt is a somewhat difficult question to decide though the principles bearing on the question are well settled. The application of those principles to a given set of facts often creates difficulties. The decision by and large depends upon the facts of each case.5. So far as the first question set out earlier is concerned the same is settled by the decision of this Court in Commissioner of Income-Tax, West Bengal v. Nalin Behari Lall Singha, 74 ITR 849 = (AIR 1970 SC 388 ). The assessee therein was also one of the shareholders of Ukhara Estate Zamindaries Ltd. His case was no different from that of the respondents herein. But the only point that arose for decision in that appeal was whether the receipts similar to those we are considering here can be considered as "dividends"? This court answered that question in the negative. This Court refused to go into the question whether the same could be considered as income other than dividend. Dealing with that contention this Courtfor the revenue sought to argue that the share of dividend which is not chargeable to tax by virtue of the exemption clause is still liable to tax as income other than dividend. But no such contention was raised before the Tribunal or the High Court and no question was raised in that behalf. We will not be justified in entering upon the question which was not raised or argued before the Tribunal and before the High Court.The above observations, in our opinion, correctly set out the law.9. Let us now turn to the facts of this case. The assessees were shareholders in the company.They were beneficially entitled to the capital of the company. The amount with which we are concerned in these appeals was received by the company as Selamis and as compensation for the acquisition of the lands of the company. It was not something earned by the company in the course of its business. Undoubtedly it was a capital receipt in the hands of the company but that by itself is not sufficient. We have next to see whether it was a capital receipt in the hands of the assessee. As mentioned earlier, the assessee had a beneficial interest in that sum, when it was in the hands of the company. Therefore when that sum was distributed amongst the shareholders of the company, each of the, shareholders took a share of the capital asset in which they were beneficially entitled. That being so the receipt with which we are concerned in these appeals must also be considered as capital receipt. The fact that those sums were distributed as dividends does not change the true nature of the receipt. A receipt is what it is and not what it is called. | 0 | 1,541 | 687 | ### Instruction:
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these appeals the dispute centres round the taxability of that share of the dividend which has been paid out of the capital gains in the lands of the company. The Income -tax Officer came to the conclusion that no, dividend distributed can be considered as having been paid out of the "capital gains" of the company; therefore the same is taxable as "dividend". In appeal the Appellate Assistant Commissioner accepted the contention of the assessee that the receipt of Rs. 8829/- cannot be considered as dividend within the meaning of S. 2 (6A) of the Act but he held that the same is taxable as income in the hands of the assessee. The Tribunal confirmed the order of the Appellate Assistant Commissioner.4. It is now well settled that in order to find out whether a receipt is a capital receipt or a Revenue receipt one has to see what it is in the hands of the receiver and not its nature in the hands of the payer. In other words, the nature of receipt is determined entirely by its character in the hands of the receiver and the source from which the payment is made has no bearing on the question. Where an amount is paid which, so far as the payer is concerned, is paid wholly or partly out of the capital, and the receiver receives it as income on his part, the entire receipt is taxable in the hands of the receiver. Therefore the fact that the amount sought to be taxed in these appeals was capital gains in the hands of the company is not a relevant circumstance. What we have see is what it was in the hands of the assessees. The question whether a particular receipt is a capital receipt or a revenue receipt is a somewhat difficult question to decide though the principles bearing on the question are well settled. The application of those principles to a given set of facts often creates difficulties. The decision by and large depends upon the facts of each case.5. So far as the first question set out earlier is concerned the same is settled by the decision of this Court in Commissioner of Income-Tax, West Bengal v. Nalin Behari Lall Singha, 74 ITR 849 = (AIR 1970 SC 388 ). The assessee therein was also one of the shareholders of Ukhara Estate Zamindaries Ltd. His case was no different from that of the respondents herein. But the only point that arose for decision in that appeal was whether the receipts similar to those we are considering here can be considered as "dividends"? This court answered that question in the negative. This Court refused to go into the question whether the same could be considered as income other than dividend. Dealing with that contention this Court observed:"Counsel for the revenue sought to argue that the share of dividend which is not chargeable to tax by virtue of the exemption clause is still liable to tax as income other than dividend. But no such contention was raised before the Tribunal or the High Court and no question was raised in that behalf. We will not be justified in entering upon the question which was not raised or argued before the Tribunal and before the High Court."6. In these appeals we have to decide what was left undecided in that case.7. Coming back to the question how exactly to draw the line between a capital receipt and a revenue receipt in cases of the type that are before us, one can do no better than refer to the observations of Finlay J. in Trustees of the Will of H. K. Brodie (deceased) v. Commissioner of Inland Revenue (1933)17 Tax Cas 432 at p. 439."But, I think, the governing consideration is this: the question being, was the sum received as income, one has to consider what was the source from which it was received and what were the circumstances in which it was received. If the capital belonged to the person receiving the sums - if he or she was beneficially entitled not only to the income but to the capital - then I should think that, when the payments were made, they ought to be regarded, and would be regarded, as payment out of capital, but where there is a right to the income, but the capital belongs to somebody else, then, if payments out of capital are made and made in such a form that they come into the hands of the beneficiaries as income, it seems to me that they are income and not the less income, not of the person receiving them but in the hands of somebody else - capital."8. The above observations, in our opinion, correctly set out the law.9. Let us now turn to the facts of this case. The assessees were shareholders in the company.They were beneficially entitled to the capital of the company. The amount with which we are concerned in these appeals was received by the company as Selamis and as compensation for the acquisition of the lands of the company. It was not something earned by the company in the course of its business. Undoubtedly it was a capital receipt in the hands of the company but that by itself is not sufficient. We have next to see whether it was a capital receipt in the hands of the assessee. As mentioned earlier, the assessee had a beneficial interest in that sum, when it was in the hands of the company. Therefore when that sum was distributed amongst the shareholders of the company, each of the, shareholders took a share of the capital asset in which they were beneficially entitled. That being so the receipt with which we are concerned in these appeals must also be considered as capital receipt. The fact that those sums were distributed as dividends does not change the true nature of the receipt. A receipt is what it is and not what it is called.
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4. It is now well settled that in order to find out whether a receipt is a capital receipt or a Revenue receipt one has to see what it is in the hands of the receiver and not its nature in the hands of the payer. In other words, the nature of receipt is determined entirely by its character in the hands of the receiver and the source from which the payment is made has no bearing on the question. Where an amount is paid which, so far as the payer is concerned, is paid wholly or partly out of the capital, and the receiver receives it as income on his part, the entire receipt is taxable in the hands of the receiver. Therefore the fact that the amount sought to be taxed in these appeals was capital gains in the hands of the company is not a relevant circumstance. What we have see is what it was in the hands of the assessees. The question whether a particular receipt is a capital receipt or a revenue receipt is a somewhat difficult question to decide though the principles bearing on the question are well settled. The application of those principles to a given set of facts often creates difficulties. The decision by and large depends upon the facts of each case.5. So far as the first question set out earlier is concerned the same is settled by the decision of this Court in Commissioner of Income-Tax, West Bengal v. Nalin Behari Lall Singha, 74 ITR 849 = (AIR 1970 SC 388 ). The assessee therein was also one of the shareholders of Ukhara Estate Zamindaries Ltd. His case was no different from that of the respondents herein. But the only point that arose for decision in that appeal was whether the receipts similar to those we are considering here can be considered as "dividends"? This court answered that question in the negative. This Court refused to go into the question whether the same could be considered as income other than dividend. Dealing with that contention this Courtfor the revenue sought to argue that the share of dividend which is not chargeable to tax by virtue of the exemption clause is still liable to tax as income other than dividend. But no such contention was raised before the Tribunal or the High Court and no question was raised in that behalf. We will not be justified in entering upon the question which was not raised or argued before the Tribunal and before the High Court.The above observations, in our opinion, correctly set out the law.9. Let us now turn to the facts of this case. The assessees were shareholders in the company.They were beneficially entitled to the capital of the company. The amount with which we are concerned in these appeals was received by the company as Selamis and as compensation for the acquisition of the lands of the company. It was not something earned by the company in the course of its business. Undoubtedly it was a capital receipt in the hands of the company but that by itself is not sufficient. We have next to see whether it was a capital receipt in the hands of the assessee. As mentioned earlier, the assessee had a beneficial interest in that sum, when it was in the hands of the company. Therefore when that sum was distributed amongst the shareholders of the company, each of the, shareholders took a share of the capital asset in which they were beneficially entitled. That being so the receipt with which we are concerned in these appeals must also be considered as capital receipt. The fact that those sums were distributed as dividends does not change the true nature of the receipt. A receipt is what it is and not what it is called.
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PR. COMMISSIONER OF INCOME TAX 3 NAGPUR Vs. BALLARPUR INDUSTRIES LTD | of manufacturing of various kinds of papers. The dispute in this appeal relates to the assessment year 1993-94. 6. The question arose in the assessment year in question before the Assessing Officer (AO) as to what is the true nature of payment of Rs.3.25 crores made by the respondent-Company(assessee) to one Mr. G.R.Hada pursuant to the compromise arrived at between the respondent-assessee-Company and Mr. 2 2G.R.Hada in a civil suit filed by Mr. G.R. Hada against the respondent-Company and others. 7. According to the respondent-Company(assessee), Mr. G.R. Hada and the respondent-Company were the joint promoters of one Company called M/s Andhra Pradesh Rayons Limited in which Mr. G.R. Hada was holding 10.25% shares and the remaining shares were held by other promoter shareholders with different percentage. 8. Since the dispute arose amongst the promoter shareholders, Mr. G.R. Hada filed a civil suit against the respondent-Company(assessee) and other promoter shareholders on the basis of an agreement, which was entered into amongst the promoter shareholders. 9. In the abovementioned suit, a compromise was arrived at between the respondent-Company(assessee) and Mr. G.R. Hada. Pursuant to the said compromise, 3 3the respondent-Company(assessee) paid a sum of Rs.3.25 crores to Mr. G.R. Hada. 10. The respondent-Company(assessee), however, claimed a deduction of Rs.3.25 crores in the assessment year in question as revenue expenditure because, according to them, they had paid the said sum to Mr. G.R. Hada for running their business. 11. The AO examined the claim in the context of the terms of the agreement in Para 12 (a) of his order dated 29.03.1996 (pages 54 to 60 of the SLP paper book) and held that the claim cannot be considered as revenue expenditure. The AO, therefore, rejected the claim. 12. The respondent-Company(assessee) felt aggrieved by the order of the AO and filed an appeal to the Commissioner of Income Tax (Appeals)-I, Nagpur. The CIT (Appeals) dealt with this issue in Para 15 of his order (pages 92 to 94 of the SLP paper book) and by his order 18.12.1998 confirmed the addition made by 4 4the AO. In other words, the CIT (Appeals) was also of the view that the claim made by the respondent- Company(assessee) cannot be considered as revenue expenditure. 13. The respondent-Company(assessee) felt aggrieved and filed second appeal in the Income Tax Appellate Tribunal. The Tribunal examined the question in Paras 26 and 27 and by its order dated 30.06.2003 allowed the appeal and directed the AO to allow the deduction of Rs.3.25 crores as claimed by the respondent-Company(assessee). 14. The Commissioner of Income Tax- Revenue felt aggrieved and filed appeal in the High Court of Judicature at Mumbai, Nagpur Bench. By impugned order, the High Court dismissed the appeal, which has given rise to filing of the present appeal by way of special leave by the Revenue in this Court. 15. So, the short question, which arises for consideration in this appeal, is whether the High Court 5 5was justified in dismissing the appeal filed by the Commissioner of Income Tax. 16. Heard Mr. Sanjay Jain, learned Additional Solicitor General for the appellant-Revenue and Ms. Vanita Bhargava, learned counsel for the respondent- Company(assessee). 17. 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 order as well as the order of the Tribunal and remand the case to the Tribunal to decide the appeal filed by the respondent-Company(assessee) afresh on merits in accordance with law. 18. The need to remand the case to the Tribunal has arisen for the following reasons. 19. From the perusal of Para 26 of the order of the Tribunal, we find that the Tribunal has recorded a finding, which reads as under: 6 6 26…………The AO did not dispute the fact that the expenditure related to the business of the assessee. The CIT (A), however, reversed the findings of the AO and held that the expenditure cannot be considered as business expenditure. A perusal of the CIT (A)s order can only lead to a conclusion that the CIT(A) was of the view that the expenditure in question was not a capital expenditure but of a revenue nature……….. 20. The aforesaid observation of the Tribunal, on what AO and CIT (Appeals) held, does not seem to be correct and rather inconsistent when we peruse the finding of the AO (concluding Para 12 (a) & (d) of the AOs order at page 60 of SLP and concluding Para 15.1 of CIT (Appeals) at page 93 of the SLP). 21. In other words, we find that the Tribunal did not correctly appreciate as to what AO and CIT (Appeals) held and what was their reasoning which led to their respective conclusion. 22. Having wrongly observed about their respective reasoning and the finding, the Tribunal proceeded to examine the case and eventually reversed the order of CIT (Appeals). The High court did not notice the 7 7aforesaid observation of the Tribunal and upheld the order of the Tribunal. 23. In such a situation like the one arising in the case and keeping in view the question involved, we are of the considered opinion that the matter deserves to be remanded to the Tribunal for deciding the appeal filed by the respondent-Company (assessee) afresh on merits because the Tribunal being the last Court of appeal on facts, its finding on the question of fact is of significance. 24. In our view, remanding the case is not likely to cause any prejudice to any party because the aggrieved party will have a right of appeal to the High Court and then to this Court against any adverse order. 25. Though the learned counsel for the parties argued the question on merits but having taken note of the approach of the Tribunal, we consider, in the interest of both the parties, to remand the appeal to 8 8the Tribunal for its hearing afresh on merits in accordance with law, keeping all the issues open. | 1[ds]17. 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 order as well as the order of the Tribunal and remand the case to the Tribunal to decide the appeal filed by the respondent-Company(assessee) afresh on merits in accordance with law18. The need to remand the case to the Tribunal has arisen for the following reasons20. The aforesaid observation of the Tribunal, on what AO and CIT (Appeals) held, does not seem to be correct and rather inconsistent when we peruse the finding of the AO (concluding Para 12 (a) & (d) of the AOs order at page 60 of SLP and concluding Para 15.1 of CIT (Appeals) at page 93 of the SLP)21. In other words, we find that the Tribunal did not correctly appreciate as to what AO and CIT (Appeals) held and what was their reasoning which led to their respective conclusion22. Having wrongly observed about their respective reasoning and the finding, the Tribunal proceeded to examine the case and eventually reversed the order of CIT (Appeals). The High court did not notice the 7 7aforesaid observation of the Tribunal and upheld the order of the Tribunal23. In such a situation like the one arising in the case and keeping in view the question involved, we are of the considered opinion that the matter deserves to be remanded to the Tribunal for deciding the appeal filed by the respondent-Company (assessee) afresh on merits because the Tribunal being the last Court of appeal on facts, its finding on the question of fact is of significance24. In our view, remanding the case is not likely to cause any prejudice to any party because the aggrieved party will have a right of appeal to the High Court and then to this Court against any adverse order25. Though the learned counsel for the parties argued the question on merits but having taken note of the approach of the Tribunal, we consider, in the interest of both the parties, to remand the appeal to 8 8the Tribunal for its hearing afresh on merits in accordance with law, keeping all the issues open. | 1 | 1,306 | 416 | ### Instruction:
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of manufacturing of various kinds of papers. The dispute in this appeal relates to the assessment year 1993-94. 6. The question arose in the assessment year in question before the Assessing Officer (AO) as to what is the true nature of payment of Rs.3.25 crores made by the respondent-Company(assessee) to one Mr. G.R.Hada pursuant to the compromise arrived at between the respondent-assessee-Company and Mr. 2 2G.R.Hada in a civil suit filed by Mr. G.R. Hada against the respondent-Company and others. 7. According to the respondent-Company(assessee), Mr. G.R. Hada and the respondent-Company were the joint promoters of one Company called M/s Andhra Pradesh Rayons Limited in which Mr. G.R. Hada was holding 10.25% shares and the remaining shares were held by other promoter shareholders with different percentage. 8. Since the dispute arose amongst the promoter shareholders, Mr. G.R. Hada filed a civil suit against the respondent-Company(assessee) and other promoter shareholders on the basis of an agreement, which was entered into amongst the promoter shareholders. 9. In the abovementioned suit, a compromise was arrived at between the respondent-Company(assessee) and Mr. G.R. Hada. Pursuant to the said compromise, 3 3the respondent-Company(assessee) paid a sum of Rs.3.25 crores to Mr. G.R. Hada. 10. The respondent-Company(assessee), however, claimed a deduction of Rs.3.25 crores in the assessment year in question as revenue expenditure because, according to them, they had paid the said sum to Mr. G.R. Hada for running their business. 11. The AO examined the claim in the context of the terms of the agreement in Para 12 (a) of his order dated 29.03.1996 (pages 54 to 60 of the SLP paper book) and held that the claim cannot be considered as revenue expenditure. The AO, therefore, rejected the claim. 12. The respondent-Company(assessee) felt aggrieved by the order of the AO and filed an appeal to the Commissioner of Income Tax (Appeals)-I, Nagpur. The CIT (Appeals) dealt with this issue in Para 15 of his order (pages 92 to 94 of the SLP paper book) and by his order 18.12.1998 confirmed the addition made by 4 4the AO. In other words, the CIT (Appeals) was also of the view that the claim made by the respondent- Company(assessee) cannot be considered as revenue expenditure. 13. The respondent-Company(assessee) felt aggrieved and filed second appeal in the Income Tax Appellate Tribunal. The Tribunal examined the question in Paras 26 and 27 and by its order dated 30.06.2003 allowed the appeal and directed the AO to allow the deduction of Rs.3.25 crores as claimed by the respondent-Company(assessee). 14. The Commissioner of Income Tax- Revenue felt aggrieved and filed appeal in the High Court of Judicature at Mumbai, Nagpur Bench. By impugned order, the High Court dismissed the appeal, which has given rise to filing of the present appeal by way of special leave by the Revenue in this Court. 15. So, the short question, which arises for consideration in this appeal, is whether the High Court 5 5was justified in dismissing the appeal filed by the Commissioner of Income Tax. 16. Heard Mr. Sanjay Jain, learned Additional Solicitor General for the appellant-Revenue and Ms. Vanita Bhargava, learned counsel for the respondent- Company(assessee). 17. 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 order as well as the order of the Tribunal and remand the case to the Tribunal to decide the appeal filed by the respondent-Company(assessee) afresh on merits in accordance with law. 18. The need to remand the case to the Tribunal has arisen for the following reasons. 19. From the perusal of Para 26 of the order of the Tribunal, we find that the Tribunal has recorded a finding, which reads as under: 6 6 26…………The AO did not dispute the fact that the expenditure related to the business of the assessee. The CIT (A), however, reversed the findings of the AO and held that the expenditure cannot be considered as business expenditure. A perusal of the CIT (A)s order can only lead to a conclusion that the CIT(A) was of the view that the expenditure in question was not a capital expenditure but of a revenue nature……….. 20. The aforesaid observation of the Tribunal, on what AO and CIT (Appeals) held, does not seem to be correct and rather inconsistent when we peruse the finding of the AO (concluding Para 12 (a) & (d) of the AOs order at page 60 of SLP and concluding Para 15.1 of CIT (Appeals) at page 93 of the SLP). 21. In other words, we find that the Tribunal did not correctly appreciate as to what AO and CIT (Appeals) held and what was their reasoning which led to their respective conclusion. 22. Having wrongly observed about their respective reasoning and the finding, the Tribunal proceeded to examine the case and eventually reversed the order of CIT (Appeals). The High court did not notice the 7 7aforesaid observation of the Tribunal and upheld the order of the Tribunal. 23. In such a situation like the one arising in the case and keeping in view the question involved, we are of the considered opinion that the matter deserves to be remanded to the Tribunal for deciding the appeal filed by the respondent-Company (assessee) afresh on merits because the Tribunal being the last Court of appeal on facts, its finding on the question of fact is of significance. 24. In our view, remanding the case is not likely to cause any prejudice to any party because the aggrieved party will have a right of appeal to the High Court and then to this Court against any adverse order. 25. Though the learned counsel for the parties argued the question on merits but having taken note of the approach of the Tribunal, we consider, in the interest of both the parties, to remand the appeal to 8 8the Tribunal for its hearing afresh on merits in accordance with law, keeping all the issues open.
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17. 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 order as well as the order of the Tribunal and remand the case to the Tribunal to decide the appeal filed by the respondent-Company(assessee) afresh on merits in accordance with law18. The need to remand the case to the Tribunal has arisen for the following reasons20. The aforesaid observation of the Tribunal, on what AO and CIT (Appeals) held, does not seem to be correct and rather inconsistent when we peruse the finding of the AO (concluding Para 12 (a) & (d) of the AOs order at page 60 of SLP and concluding Para 15.1 of CIT (Appeals) at page 93 of the SLP)21. In other words, we find that the Tribunal did not correctly appreciate as to what AO and CIT (Appeals) held and what was their reasoning which led to their respective conclusion22. Having wrongly observed about their respective reasoning and the finding, the Tribunal proceeded to examine the case and eventually reversed the order of CIT (Appeals). The High court did not notice the 7 7aforesaid observation of the Tribunal and upheld the order of the Tribunal23. In such a situation like the one arising in the case and keeping in view the question involved, we are of the considered opinion that the matter deserves to be remanded to the Tribunal for deciding the appeal filed by the respondent-Company (assessee) afresh on merits because the Tribunal being the last Court of appeal on facts, its finding on the question of fact is of significance24. In our view, remanding the case is not likely to cause any prejudice to any party because the aggrieved party will have a right of appeal to the High Court and then to this Court against any adverse order25. Though the learned counsel for the parties argued the question on merits but having taken note of the approach of the Tribunal, we consider, in the interest of both the parties, to remand the appeal to 8 8the Tribunal for its hearing afresh on merits in accordance with law, keeping all the issues open.
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M/S. B. HIMMATLAL AGRAWAL PARTNER Vs. COMPETITION COMMISSION OF INDIA and Others | the order aforesaid dated 4 th December, 2017, both the IA No.84/2017 and Competition Appeal (AT) No. 24/2017 stands disposed off for non-compliance of the Appellate Tribunal.? 5. A pure legal submission which is advanced by the learned counsel for the appellant is that even if the appellant could not comply with orders dated December 4, 2017 vide which conditional stay was granted directing the appellant to deposit 10% of the penalty amount, the maximum effect thereof was to vacate the stay granted and the Appellate Tribunal was not legally justified in dismissing the appeal itself. This submission of the appellant commends acceptance, having due force and substance in law. 6. From the facts narrated above, it is apparent that order of the CCI was challenged by filing appeal under Section 53B of the Act. Along with this appeal, the appellant had also filed application for stay of the operation of the order of the CCI during the pendency of the appeal. Appeal was admitted insofar as stay is concerned, which was granted subject to the condition that the appellant deposits 10% of the amount of penalty imposed by the CCI. It needs to be understood, in this context, that the condition of deposit was attached to the order of stay. In case of non- compliance of the said condition, the consequence would be that stay has ceased to operate as the condition for stay is not fulfilled. However, non-compliance of the conditional order of stay would have no bearing insofar as the main appeal is concerned. Right to appeal is statutorily provided under Section 53B of the Act, which reads as under: ?53B. Appeal to Appellate Tribunal. — (1) The Central Government or the State Government or a local authority or enterprise or any person, aggrieved by any direction, decision or order referred to in clause (a) of section 53A may prefer an appeal to the Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within a period of sixty days from the date on which a copy of the direction or decision or order made by the Commission is received by the Central Government or the State Government or a local authority or enterprise or any person referred to in that sub-section and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of sixty days if it is satisfied that there was sufficient cause for not filing it within that period. (3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the direction, decision or order appealed against. (4) The Appellate Tribunal shall send a copy of every order made by it to the Commission and the parties to the appeal. (5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal within six months from the date of receipt of the appeal.? 7. The aforesaid provision, thus, confers a right upon any of the aggrieved parties mentioned therein to prefer an appeal to the Appellate Tribunal. This statutory provision does not impose any condition of pre-deposit for entertaining the appeal. Therefore, right to file the appeal and have the said appeal decided on merits, if it is filed within the period of limitation, is conferred by the statute and that cannot be taken away by imposing the condition of deposit of an amount leading to dismissal of the main appeal itself if the said condition is not satisfied. Position would have been different if the provision of appeal itself contained a condition of pre-deposit of certain amount. That is not so. Sub- section (3) of Section 53B specifically cast a duty upon the Appellate Tribunal to pass order on appeal, as it thinks fit i.e. either confirming, modifying or setting aside the direction, decision or order appealed against. It is to be done after giving an opportunity of hearing to the parties to the appeal. It, thus, clearly implies that appeal has to be decided on merits. The Appellate Tribunal, which is the creature of a statute, has to act within the domain prescribed by the law/statutory provision. This provision nowhere stipulates that the Appellate Tribunal can direct the appellant to deposit a certain amount as a condition precedent for hearing the appeal. In fact, that was not even done in the instant case. It is stated at the cost of repetition that the condition of deposit of 10% of the penalty was imposed insofar as stay of penalty order passed by the CCI is concerned. Therefore, at the most, stay could have been vacated. The Appellate Tribunal, thus, had no jurisdiction to dismiss the appeal itself.8. We may mention that the learned counsel appearing for the CCI had referred to the judgment of this Court in the case of Ultra Tech Cement Ltd. v. Competition Commission of India & Ors. ( Civil Appeal No. 4766 - 4767 of 2013 decided on 12 June, 2013). Said judgment has no application to the facts of this case. That was a case where the appellant had challenged the jurisdiction of the Appellate Tribunal to pass conditional order i.e. deposit of 10% of the penalty as a condition for grant of stay. It was argued that the Appellate Tribunal did not have any power to impose such a condition for grant of stay. This challenge was rejected by the Court holding that Appellate Tribunal could pass a conditional stay order. No such issue, that has arisen in the instant appeal, was raised therein, namely, whether the Tribunal could dismiss the appeal itself if the condition attached to the grant of stay is not complied with. | 1[ds]5. A pure legal submission which is advanced by the learned counsel for the appellant is that even if the appellant could not comply with orders dated December 4, 2017 vide which conditional stay was granted directing the appellant to deposit 10% of the penalty amount, the maximum effect thereof was to vacate the stay granted and the Appellate Tribunal was not legally justified in dismissing the appeal itself.This submission of the appellant commends acceptance, having due force and substance in law.The aforesaid provision, thus, confers a right upon any of the aggrieved parties mentioned therein to prefer an appeal to the Appellate Tribunal. This statutory provision does not impose any condition offor entertaining the appeal. Therefore, right to file the appeal and have the said appeal decided on merits, if it is filed within the period of limitation, is conferred by the statute and that cannot be taken away by imposing the condition of deposit of an amount leading to dismissal of the main appeal itself if the said condition is not satisfied. Position would have been different if the provision of appeal itself contained a condition ofof certain amount. That is not so. Subsection (3) of Section 53B specifically cast a duty upon the Appellate Tribunal to pass order on appeal, as it thinks fit i.e. either confirming, modifying or setting aside the direction, decision or order appealed against. It is to be done after giving an opportunity of hearing to the parties to the appeal. It, thus, clearly implies that appeal has to be decided on merits. The Appellate Tribunal, which is the creature of a statute, has to act within the domain prescribed by the law/statutory provision. This provision nowhere stipulates that the Appellate Tribunal can direct the appellant to deposit a certain amount as a condition precedent for hearing the appeal. In fact, that was not even done in the instant case. It is stated at the cost of repetition that the condition of deposit of 10% of the penalty was imposed insofar as stay of penalty order passed by the CCI is concerned. Therefore, at the most, stay could have been vacated. The Appellate Tribunal, thus, had no jurisdiction to dismiss the appeal itself.8. We may mention that the learned counsel appearing for the CCI had referred to the judgment of this Court in the case of Ultra Tech Cement Ltd. v. Competition Commission of India & Ors.. Said judgment has no application to the facts of this case. That was a case where the appellant had challenged the jurisdiction of the Appellate Tribunal to pass conditional order i.e. deposit of 10% of the penalty as a condition for grant of stay. It was argued that the Appellate Tribunal did not have any power to impose such a condition for grant of stay. This challenge was rejected by the Court holding that Appellate Tribunal could pass a conditional stay order. No such issue, that has arisen in the instant appeal, was raised therein, namely, whether the Tribunal could dismiss the appeal itself if the condition attached to the grant of stay is not complied with. | 1 | 1,995 | 578 | ### Instruction:
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the order aforesaid dated 4 th December, 2017, both the IA No.84/2017 and Competition Appeal (AT) No. 24/2017 stands disposed off for non-compliance of the Appellate Tribunal.? 5. A pure legal submission which is advanced by the learned counsel for the appellant is that even if the appellant could not comply with orders dated December 4, 2017 vide which conditional stay was granted directing the appellant to deposit 10% of the penalty amount, the maximum effect thereof was to vacate the stay granted and the Appellate Tribunal was not legally justified in dismissing the appeal itself. This submission of the appellant commends acceptance, having due force and substance in law. 6. From the facts narrated above, it is apparent that order of the CCI was challenged by filing appeal under Section 53B of the Act. Along with this appeal, the appellant had also filed application for stay of the operation of the order of the CCI during the pendency of the appeal. Appeal was admitted insofar as stay is concerned, which was granted subject to the condition that the appellant deposits 10% of the amount of penalty imposed by the CCI. It needs to be understood, in this context, that the condition of deposit was attached to the order of stay. In case of non- compliance of the said condition, the consequence would be that stay has ceased to operate as the condition for stay is not fulfilled. However, non-compliance of the conditional order of stay would have no bearing insofar as the main appeal is concerned. Right to appeal is statutorily provided under Section 53B of the Act, which reads as under: ?53B. Appeal to Appellate Tribunal. — (1) The Central Government or the State Government or a local authority or enterprise or any person, aggrieved by any direction, decision or order referred to in clause (a) of section 53A may prefer an appeal to the Appellate Tribunal. (2) Every appeal under sub-section (1) shall be filed within a period of sixty days from the date on which a copy of the direction or decision or order made by the Commission is received by the Central Government or the State Government or a local authority or enterprise or any person referred to in that sub-section and it shall be in such form and be accompanied by such fee as may be prescribed: Provided that the Appellate Tribunal may entertain an appeal after the expiry of the said period of sixty days if it is satisfied that there was sufficient cause for not filing it within that period. (3) On receipt of an appeal under sub-section (1), the Appellate Tribunal may, after giving the parties to the appeal, an opportunity of being heard, pass such orders thereon as it thinks fit, confirming, modifying or setting aside the direction, decision or order appealed against. (4) The Appellate Tribunal shall send a copy of every order made by it to the Commission and the parties to the appeal. (5) The appeal filed before the Appellate Tribunal under sub-section (1) shall be dealt with by it as expeditiously as possible and endeavour shall be made by it to dispose of the appeal within six months from the date of receipt of the appeal.? 7. The aforesaid provision, thus, confers a right upon any of the aggrieved parties mentioned therein to prefer an appeal to the Appellate Tribunal. This statutory provision does not impose any condition of pre-deposit for entertaining the appeal. Therefore, right to file the appeal and have the said appeal decided on merits, if it is filed within the period of limitation, is conferred by the statute and that cannot be taken away by imposing the condition of deposit of an amount leading to dismissal of the main appeal itself if the said condition is not satisfied. Position would have been different if the provision of appeal itself contained a condition of pre-deposit of certain amount. That is not so. Sub- section (3) of Section 53B specifically cast a duty upon the Appellate Tribunal to pass order on appeal, as it thinks fit i.e. either confirming, modifying or setting aside the direction, decision or order appealed against. It is to be done after giving an opportunity of hearing to the parties to the appeal. It, thus, clearly implies that appeal has to be decided on merits. The Appellate Tribunal, which is the creature of a statute, has to act within the domain prescribed by the law/statutory provision. This provision nowhere stipulates that the Appellate Tribunal can direct the appellant to deposit a certain amount as a condition precedent for hearing the appeal. In fact, that was not even done in the instant case. It is stated at the cost of repetition that the condition of deposit of 10% of the penalty was imposed insofar as stay of penalty order passed by the CCI is concerned. Therefore, at the most, stay could have been vacated. The Appellate Tribunal, thus, had no jurisdiction to dismiss the appeal itself.8. We may mention that the learned counsel appearing for the CCI had referred to the judgment of this Court in the case of Ultra Tech Cement Ltd. v. Competition Commission of India & Ors. ( Civil Appeal No. 4766 - 4767 of 2013 decided on 12 June, 2013). Said judgment has no application to the facts of this case. That was a case where the appellant had challenged the jurisdiction of the Appellate Tribunal to pass conditional order i.e. deposit of 10% of the penalty as a condition for grant of stay. It was argued that the Appellate Tribunal did not have any power to impose such a condition for grant of stay. This challenge was rejected by the Court holding that Appellate Tribunal could pass a conditional stay order. No such issue, that has arisen in the instant appeal, was raised therein, namely, whether the Tribunal could dismiss the appeal itself if the condition attached to the grant of stay is not complied with.
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5. A pure legal submission which is advanced by the learned counsel for the appellant is that even if the appellant could not comply with orders dated December 4, 2017 vide which conditional stay was granted directing the appellant to deposit 10% of the penalty amount, the maximum effect thereof was to vacate the stay granted and the Appellate Tribunal was not legally justified in dismissing the appeal itself.This submission of the appellant commends acceptance, having due force and substance in law.The aforesaid provision, thus, confers a right upon any of the aggrieved parties mentioned therein to prefer an appeal to the Appellate Tribunal. This statutory provision does not impose any condition offor entertaining the appeal. Therefore, right to file the appeal and have the said appeal decided on merits, if it is filed within the period of limitation, is conferred by the statute and that cannot be taken away by imposing the condition of deposit of an amount leading to dismissal of the main appeal itself if the said condition is not satisfied. Position would have been different if the provision of appeal itself contained a condition ofof certain amount. That is not so. Subsection (3) of Section 53B specifically cast a duty upon the Appellate Tribunal to pass order on appeal, as it thinks fit i.e. either confirming, modifying or setting aside the direction, decision or order appealed against. It is to be done after giving an opportunity of hearing to the parties to the appeal. It, thus, clearly implies that appeal has to be decided on merits. The Appellate Tribunal, which is the creature of a statute, has to act within the domain prescribed by the law/statutory provision. This provision nowhere stipulates that the Appellate Tribunal can direct the appellant to deposit a certain amount as a condition precedent for hearing the appeal. In fact, that was not even done in the instant case. It is stated at the cost of repetition that the condition of deposit of 10% of the penalty was imposed insofar as stay of penalty order passed by the CCI is concerned. Therefore, at the most, stay could have been vacated. The Appellate Tribunal, thus, had no jurisdiction to dismiss the appeal itself.8. We may mention that the learned counsel appearing for the CCI had referred to the judgment of this Court in the case of Ultra Tech Cement Ltd. v. Competition Commission of India & Ors.. Said judgment has no application to the facts of this case. That was a case where the appellant had challenged the jurisdiction of the Appellate Tribunal to pass conditional order i.e. deposit of 10% of the penalty as a condition for grant of stay. It was argued that the Appellate Tribunal did not have any power to impose such a condition for grant of stay. This challenge was rejected by the Court holding that Appellate Tribunal could pass a conditional stay order. No such issue, that has arisen in the instant appeal, was raised therein, namely, whether the Tribunal could dismiss the appeal itself if the condition attached to the grant of stay is not complied with.
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Colour-Chem Limited Vs. A.L. Alaspurkar & Ors | note that so far as 10 mazdoors were concerned they were let off for this very misconduct by mere warning while the respondents were dismissed from service. It is, of course, true that the respondents were assigned more responsible duty as compared to mazdoors, but in the background of surrounding circumstances and especially in the light of their past service record there is no escape from the conclusion that the punishment of dismissal imposed on them for such misconduct was grossly and shockingly disproportionate, as rightly held by the Labour Court and as confirmed by the revisional court and the High Court. By imposing such grossly disproportionate punishment on the respondents the appellant-management had tried to kill the fly with a sledge hammer. Consequently it must be held that the appellant was guilty of unfair labour practice. Such an act was squarely covered by clause (a) of Item 1 of Schedule IV for the Act being legal victimisation, if not factual victimisation. The ultimate finding of th Labour Court about maintainability of the complaint can be supported on this ground. The second point is answered in the affirmative against the appellant and in favour of the respndent-workmen. Point No. 3 10. So far as this point is concerned it has to be held that when the punishment of dismissal was shockingly disproportionate to the charges held proved against them reinstatement with continuity of service was the least that could have been ordered in their favour. There is no question of appellant losing confidence in them. In this connection learned senior counsel for the appellant tried to submit that apart from going to sleep in the early hours of the morning when the night shift was coming to a close the machine was kept working and that would have created a hazard of the working of the plant and possibility of explosion was likely to arise. So far as this contention is concerned it must be stated that this was not the case for the management while framing the charge-sheets against the workmen. Not only that, there is not a whisper about the said eventuality and possibility in the evidence led by the management before the Labour Court. But that apart no such contention, even through mentioned in the written objections before the Labour Court, was ever pressed in service for consideration before the Labour Court at the stage of arguments, nor any decision was invited on this aspect. No such contention was also canvassed by the appellant in revision before the Industrial Court or before the High Court. This contention, therefore, must be treated to be clearly an after-thought and appears to have been rightly given up in subsequent stages of the trial by the management itself. All that was alleged by its witness before the Court was that because of the respondents going to sleep and allowing the machine to work without pouring raw material therein the production went down to some extent. That was nothing to do with the working of the unattended machine becoming a hazard or inviting possibility of any explosion. Under these circumstances and especially looking to the past service record of the respondents it could not be said that the management would lose confidence in these workmen. The work which they were doing was not of any confidential nature which an operator has to carry out in the plant. It was a manual work which could be entrusted to anyone. Consequently the submission of learned senior counsel for the appellant, that in lieu of reinstatement compensation may be awarded to the respondents, cannot be countenanced. It must, therefore, be held that the Labour Court was quite justified in ordering reinstatement of respondnet-workmen with continuity of service. However because of the misconduct committed by them, of sleeping while on duty in the night shift the Labour Court has imposed the penalty of depriving the workmen, respondent Nos. 3 and 4 respectively, of 60% and 50% for the back wages. After the award they have been granted 100% back wages till reinstatement. But, in our view, as respondent Nos. 3 and 4 went to sleep while on duty and that too not alone but in company of the entire staff of 10 mazdoors, they deserve to be further punished by being deprived of at least some part of back wages even after the award of the Labour Court till actual reinstatement. Interest of justice would be served, in our view, if respondent No. 3 is directed to be paid only 40% of the back wages even after the award of the Labour Court till actual reinstatement pursuant to our present order. Similarly respondent No. 4 will be entitled to only 50% back wages even after the date of the Labour Courts award till actual reinstatement as per the present order. In addition thereto, the appellant- management will be entitled to give written warnings to both these respondents when they are reinstated in service not to repeat such misconducts in further. The imposition of this type of additional penalty, in our view, would be sufficient in the facts and circumstances of the case and will operate as suitable corrective for the respondent-employees. They have suffered enough since more than 14 years. They are out of service for all these 14 years. At the time when they went to sleep in the night shift they were pretty young. Now they have naturally grown up in age and with passage of years more maturity must have dawned on them. Under these circumstances the cut in the back wages as imposed by the Labour Court and as further imposed by us would be quite sufficient to act as deterrent for them so that such misconducts may not be committed by them in future. The third point is answered as aforesaid by holding the the order of reinstatement is justified but the order of back wages as ordered by the Labour Court requires to be modified to the aforesaid extent. 11. | 0[ds]8. For resolving the controversy centering round this point it is necessary to have a look at the relevant stutory provisions of the Act. The Act was passed by the Maharashtra Legislature in 1971 as Act No. 1 of 1972. Amongst its diverse objects and reasons one of the reasons for enacting the said Act was for defining and providing for prevention of certain unfair labour practices, to constitute courts (as independent machinery) for carrying out the purposes mentioned therein one of which being enforcing provisions relating to unfair labour practices. Unfair labour practices is defined by Section 3 sub-section (16) of the Act to mean unfair labour practices as defined in section 26. Section 26 of the Act lays down that unless the context requires otherwise, unfair labour practices mean any of the practices listed in Schedules II, III and IV". We are not concerned with Schedules II and III which deal with unfair labour practices on the part of the employer and trade unions. We are directly concerned with Schedule IV which deals with general unfair labour practices on the part of thefar as the aforesaid Clasuse (g) is concerned the Labour Court has held that the misconduct alleged against the respondents and held proved before it was not a misconduct of minor or technical character as they were found sleeping on duty and were also guilty of negligence in keeping the machine in working state without putting necessary raw material therein. As the aforesaid finding of the Labour Court about the nature of misconduct of respondent Nos. 3 and 4 was confirmed by the revisional court and as that finding was not challenged by the respondents before the High Court we shall proceed for the present discussion on the basis that respondent Nos. 3 and 4 were guilty of major misconduct. The moot question therefore which falls for consideration is whether on the express language of Clause (g) the said provision gets attracted or not. A conjoint reading of different sub-parts of the aforesaid provision in our view leaves no room for doubt that it deals with an unfair labour practice said to have been committed by an employer who discharges or dismisses an employee for misconduct of a minor or technical character and while doing so no regard is kept to the nature of the misconduct alleged and proved against the delinquent or without having regard to the past service record of the employee so that under these circumstances the ultimate punishment imposed on the delinquent would be found by the Court to be shockingly dispoportionate punishment. It is not possible to agree with the contention of learned senior counsel for the respondent-workmen that the said clause would also cover even major misconducts if for such misconducts the orders of discharge or dismissal are passed by the employer without having regard to the nature of the particular misconduct or the past record of the employees and if under these circumstances it is found by the court that the punishment imposed is shockingly disproportionate one. It is true that after the words `for misconduct of a minor or technical character, there is found a comma in Clause (g) but if the contention of learned senior counsel is to be accepted the comma will have to be replaced by `or. That cannot be done in the context and settings of the said clause as the said exercise apart from being impermissible would not make a harmonious reading of the provision. Even that apart, in the said clause (g) the Legistature has used the word `or while dealing with the topic of non-consideration by the employer while imposing the punishment the relevant factors to be considered, namely, either the non-consideration employed by the Legislature in the said clause refers to the same topic, namely, non-consideration of relevant aspects by the employer while imposing the punishment. Consequently it cannot be said to have any reference to the nature of the misconduct, whether major or major. It must, therefore, be held that the comma as found in the clause after providing for the nature of the misconduct only indicates how the same nature of the misconduct referred to in the first part of the clause results in a shockingly disproportionate punishment if certain relevant factors as mentioned in the subsequent part of the clause, are not considered by the employer. If the contention of learned senior counsel for the respondents was right all the sub-parts of clause (g) have to be read disjunctively and not conjunctively. That would result in a very anomalous situation. In such an eventuality the discharge or dismissal of an employee in case of a major misconduct without regard to the nature of the particular misconduct or past record of service may by itself amount to shockingly disproportionate punishment. Consequently for a proved major misconduct if past service record is not seen the punishment of discharge or dismissal by itself may amount to a shockingly disproportionate punishment. Such an incongruous result is not contemplated by Clasue (g) of Item I of Schedule IV of the Act. Such type of truncated operation of the said provision is contra-indicated by the very texture and setting of the said clause. Once the said clause deals with the topic of misconduct of a minor or technical character it is difficult to appreciate how the said clause can be construed as covering also major misconducts for which there is not even whisper in the said clause. On a harmonious construction of the said clause with all it sub-parts, therefore, it must be held that the Legislature had contemplated, while enacting the said clause, punishment of discharge or dismissal for misconduct of minor or technical character which, when seen in the the light of the nature of the particular minor or technical misconduct or the past record of the employee, would amount to inflicting of shockingly disproportionateour view, Clause (g) of Item 1 of Schedule IV of the Act is not reasonably capable for two constructions. Only one reasonable construction is possible on the express language of Clause (g). namely, that it seeks to cover only those types of unfair labour practices where minor misconducts or technical misconducts have resulted in dismissal or discharge of delinquent workmen and such punishment in the light of the nature of misconduct or past record of the delinquent is found to be shockingly disproportionate to the charges of minor misconduct or charges of technical misconduct held proved against the delinquent. One and only subject-matter of Clause (g) is the misconduct of minor or technical character. The remaining parts of the clause do not indicate any separate subject-matter like the major misconduct. But they are all adjuncts and corollaries or appendages of the principal subject namely, minor or technical misconduct which in given set of cases may amount to resulting in shockingly disproportionate punishment if they are followed by discharge or dismissal of the delinquent. The first point, therefore, will have to be answered in the negative in favour of the appellant and against thehas to be kept in view that these observations were made by this Court at a time when unfair labour practices were not codified either by the Industrial Disputes Act or even by the present Act. The present Act tried to codify unfair labour practices on the part of employer by enacting the Act in 1972 and even the Industrial Disputes Act being the Central Act also followed the Maharashtra Act and taking a leaf from the book of Maharastra Legislature, Parliament introduced the concept of unfair labour practice by inserting Chapter V-C by Act No. 46 of 1982 w.e.f. 21st August 1984. Sections 25-T and 25-U of the Industrial Disputes Act deal with `Prohibition of unfair labour practice and Penalty for committing unfair labour practices respectively. The term `unfair labour practice was defined by the Industrial Disputes Act by inserting Section 2(ra) with effect from the very same date i.e. 21st August 1984 by the very same Act, i.e., Act No. 46 of 1982 to mean, `any of the practices specified in the Fifth Schedule. The Fifth Schedule of the Industrial Disputes Act, which saw the light of the day pursuant to the very same Amending Act, deals with `unfair labour practices which are a mirror image and a replica of the unfair labour practices contemplated and codified by the present Maharashtra Act. But apart from these subsequent statutory provisions which tried to codify unfair labour practices on the part of the employers, the basic concept of victimisation as laid down by this Court in Hind Constructions case (supra) holds the field and is not whittled down by any subsequent statutory enactments. Not only it is not given a go-bye but it is reiterated by the present Act by enacting Clause (a) of Item 1 of Schedule IV of the Act meaning thereby any discharge or dismissal of an employee by way of victimisation would be unfair labouris easy to visualise that no reasonable management could have punished a delinquent workman who in the late hours of the night shift by about 3.30 a.m. had gone to sleep keeping the machine in a working condition especially in the absence of any gross misconduct reflected by the past service record, with the extreme penalty of dismissal. It is also interesting to note that this was a peculiar case in which the Plant In-charge found during his surprise visit at 3.30 a.m. in the early hours of the dawn entire work force of 10 mazdoors and 2 operators like the respondents and the supervisor all asleep. It is also pertinent to note that so far as 10 mazdoors were concerned they were let off for this very misconduct by mere warning while the respondents were dismissed from service. It is, of course, true that the respondents were assigned more responsible duty as compared to mazdoors, but in the background of surrounding circumstances and especially in the light of their past service record there is no escape from the conclusion that the punishment of dismissal imposed on them for such misconduct was grossly and shockingly disproportionate, as rightly held by the Labour Court and as confirmed by the revisional court and the High Court. By imposing such grossly disproportionate punishment on the respondents the appellant-management had tried to kill the fly with a sledge hammer. Consequently it must be held that the appellant was guilty of unfair labour practice. Such an act was squarely covered by clause (a) of Item 1 of Schedule IV for the Act being legal victimisation, if not factual victimisation. The ultimate finding of th Labour Court about maintainability of the complaint can be supported on this ground. The second point is answered in the affirmative against the appellant and in favour of the respndent-workmen.So far as this point is concerned it has to be held that when the punishment of dismissal was shockingly disproportionate to the charges held proved against them reinstatement with continuity of service was the least that could have been ordered in their favour. There is no question of appellant losing confidence in them. In this connection learned senior counsel for the appellant tried to submit that apart from going to sleep in the early hours of the morning when the night shift was coming to a close the machine was kept working and that would have created a hazard of the working of the plant and possibility of explosion was likely to arise. So far as this contention is concerned it must be stated that this was not the case for the management while framing the charge-sheets against the workmen. Not only that, there is not a whisper about the said eventuality and possibility in the evidence led by the management before the Labour Court. But that apart no such contention, even through mentioned in the written objections before the Labour Court, was ever pressed in service for consideration before the Labour Court at the stage of arguments, nor any decision was invited on this aspect. No such contention was also canvassed by the appellant in revision before the Industrial Court or before the High Court. This contention, therefore, must be treated to be clearly an after-thought and appears to have been rightly given up in subsequent stages of the trial by the management itself. All that was alleged by its witness before the Court was that because of the respondents going to sleep and allowing the machine to work without pouring raw material therein the production went down to some extent. That was nothing to do with the working of the unattended machine becoming a hazard or inviting possibility of any explosion. Under these circumstances and especially looking to the past service record of the respondents it could not be said that the management would lose confidence in these workmen. The work which they were doing was not of any confidential nature which an operator has to carry out in the plant. It was a manual work which could be entrusted to anyone. Consequently the submission of learned senior counsel for the appellant, that in lieu of reinstatement compensation may be awarded to the respondents, cannot be countenanced. It must, therefore, be held that the Labour Court was quite justified in ordering reinstatement of respondnet-workmen with continuity of service. However because of the misconduct committed by them, of sleeping while on duty in the night shift the Labour Court has imposed the penalty of depriving the workmen, respondent Nos. 3 and 4 respectively, of 60% and 50% for the back wages. After the award they have been granted 100% back wages till reinstatement. But, in our view, as respondent Nos. 3 and 4 went to sleep while on duty and that too not alone but in company of the entire staff of 10 mazdoors, they deserve to be further punished by being deprived of at least some part of back wages even after the award of the Labour Court till actual reinstatement. Interest of justice would be served, in our view, if respondent No. 3 is directed to be paid only 40% of the back wages even after the award of the Labour Court till actual reinstatement pursuant to our present order. Similarly respondent No. 4 will be entitled to only 50% back wages even after the date of the Labour Courts award till actual reinstatement as per the present order. In addition thereto, the appellant- management will be entitled to give written warnings to both these respondents when they are reinstated in service not to repeat such misconducts in further. The imposition of this type of additional penalty, in our view, would be sufficient in the facts and circumstances of the case and will operate as suitable corrective for the respondent-employees. They have suffered enough since more than 14 years. They are out of service for all these 14 years. At the time when they went to sleep in the night shift they were pretty young. Now they have naturally grown up in age and with passage of years more maturity must have dawned on them. Under these circumstances the cut in the back wages as imposed by the Labour Court and as further imposed by us would be quite sufficient to act as deterrent for them so that such misconducts may not be committed by them in future. The third point is answered as aforesaid by holding the the order of reinstatement is justified but the order of back wages as ordered by the Labour Court requires to be modified to the aforesaid extent. | 0 | 6,812 | 2,792 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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note that so far as 10 mazdoors were concerned they were let off for this very misconduct by mere warning while the respondents were dismissed from service. It is, of course, true that the respondents were assigned more responsible duty as compared to mazdoors, but in the background of surrounding circumstances and especially in the light of their past service record there is no escape from the conclusion that the punishment of dismissal imposed on them for such misconduct was grossly and shockingly disproportionate, as rightly held by the Labour Court and as confirmed by the revisional court and the High Court. By imposing such grossly disproportionate punishment on the respondents the appellant-management had tried to kill the fly with a sledge hammer. Consequently it must be held that the appellant was guilty of unfair labour practice. Such an act was squarely covered by clause (a) of Item 1 of Schedule IV for the Act being legal victimisation, if not factual victimisation. The ultimate finding of th Labour Court about maintainability of the complaint can be supported on this ground. The second point is answered in the affirmative against the appellant and in favour of the respndent-workmen. Point No. 3 10. So far as this point is concerned it has to be held that when the punishment of dismissal was shockingly disproportionate to the charges held proved against them reinstatement with continuity of service was the least that could have been ordered in their favour. There is no question of appellant losing confidence in them. In this connection learned senior counsel for the appellant tried to submit that apart from going to sleep in the early hours of the morning when the night shift was coming to a close the machine was kept working and that would have created a hazard of the working of the plant and possibility of explosion was likely to arise. So far as this contention is concerned it must be stated that this was not the case for the management while framing the charge-sheets against the workmen. Not only that, there is not a whisper about the said eventuality and possibility in the evidence led by the management before the Labour Court. But that apart no such contention, even through mentioned in the written objections before the Labour Court, was ever pressed in service for consideration before the Labour Court at the stage of arguments, nor any decision was invited on this aspect. No such contention was also canvassed by the appellant in revision before the Industrial Court or before the High Court. This contention, therefore, must be treated to be clearly an after-thought and appears to have been rightly given up in subsequent stages of the trial by the management itself. All that was alleged by its witness before the Court was that because of the respondents going to sleep and allowing the machine to work without pouring raw material therein the production went down to some extent. That was nothing to do with the working of the unattended machine becoming a hazard or inviting possibility of any explosion. Under these circumstances and especially looking to the past service record of the respondents it could not be said that the management would lose confidence in these workmen. The work which they were doing was not of any confidential nature which an operator has to carry out in the plant. It was a manual work which could be entrusted to anyone. Consequently the submission of learned senior counsel for the appellant, that in lieu of reinstatement compensation may be awarded to the respondents, cannot be countenanced. It must, therefore, be held that the Labour Court was quite justified in ordering reinstatement of respondnet-workmen with continuity of service. However because of the misconduct committed by them, of sleeping while on duty in the night shift the Labour Court has imposed the penalty of depriving the workmen, respondent Nos. 3 and 4 respectively, of 60% and 50% for the back wages. After the award they have been granted 100% back wages till reinstatement. But, in our view, as respondent Nos. 3 and 4 went to sleep while on duty and that too not alone but in company of the entire staff of 10 mazdoors, they deserve to be further punished by being deprived of at least some part of back wages even after the award of the Labour Court till actual reinstatement. Interest of justice would be served, in our view, if respondent No. 3 is directed to be paid only 40% of the back wages even after the award of the Labour Court till actual reinstatement pursuant to our present order. Similarly respondent No. 4 will be entitled to only 50% back wages even after the date of the Labour Courts award till actual reinstatement as per the present order. In addition thereto, the appellant- management will be entitled to give written warnings to both these respondents when they are reinstated in service not to repeat such misconducts in further. The imposition of this type of additional penalty, in our view, would be sufficient in the facts and circumstances of the case and will operate as suitable corrective for the respondent-employees. They have suffered enough since more than 14 years. They are out of service for all these 14 years. At the time when they went to sleep in the night shift they were pretty young. Now they have naturally grown up in age and with passage of years more maturity must have dawned on them. Under these circumstances the cut in the back wages as imposed by the Labour Court and as further imposed by us would be quite sufficient to act as deterrent for them so that such misconducts may not be committed by them in future. The third point is answered as aforesaid by holding the the order of reinstatement is justified but the order of back wages as ordered by the Labour Court requires to be modified to the aforesaid extent. 11.
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asleep. It is also pertinent to note that so far as 10 mazdoors were concerned they were let off for this very misconduct by mere warning while the respondents were dismissed from service. It is, of course, true that the respondents were assigned more responsible duty as compared to mazdoors, but in the background of surrounding circumstances and especially in the light of their past service record there is no escape from the conclusion that the punishment of dismissal imposed on them for such misconduct was grossly and shockingly disproportionate, as rightly held by the Labour Court and as confirmed by the revisional court and the High Court. By imposing such grossly disproportionate punishment on the respondents the appellant-management had tried to kill the fly with a sledge hammer. Consequently it must be held that the appellant was guilty of unfair labour practice. Such an act was squarely covered by clause (a) of Item 1 of Schedule IV for the Act being legal victimisation, if not factual victimisation. The ultimate finding of th Labour Court about maintainability of the complaint can be supported on this ground. The second point is answered in the affirmative against the appellant and in favour of the respndent-workmen.So far as this point is concerned it has to be held that when the punishment of dismissal was shockingly disproportionate to the charges held proved against them reinstatement with continuity of service was the least that could have been ordered in their favour. There is no question of appellant losing confidence in them. In this connection learned senior counsel for the appellant tried to submit that apart from going to sleep in the early hours of the morning when the night shift was coming to a close the machine was kept working and that would have created a hazard of the working of the plant and possibility of explosion was likely to arise. So far as this contention is concerned it must be stated that this was not the case for the management while framing the charge-sheets against the workmen. Not only that, there is not a whisper about the said eventuality and possibility in the evidence led by the management before the Labour Court. But that apart no such contention, even through mentioned in the written objections before the Labour Court, was ever pressed in service for consideration before the Labour Court at the stage of arguments, nor any decision was invited on this aspect. No such contention was also canvassed by the appellant in revision before the Industrial Court or before the High Court. This contention, therefore, must be treated to be clearly an after-thought and appears to have been rightly given up in subsequent stages of the trial by the management itself. All that was alleged by its witness before the Court was that because of the respondents going to sleep and allowing the machine to work without pouring raw material therein the production went down to some extent. That was nothing to do with the working of the unattended machine becoming a hazard or inviting possibility of any explosion. Under these circumstances and especially looking to the past service record of the respondents it could not be said that the management would lose confidence in these workmen. The work which they were doing was not of any confidential nature which an operator has to carry out in the plant. It was a manual work which could be entrusted to anyone. Consequently the submission of learned senior counsel for the appellant, that in lieu of reinstatement compensation may be awarded to the respondents, cannot be countenanced. It must, therefore, be held that the Labour Court was quite justified in ordering reinstatement of respondnet-workmen with continuity of service. However because of the misconduct committed by them, of sleeping while on duty in the night shift the Labour Court has imposed the penalty of depriving the workmen, respondent Nos. 3 and 4 respectively, of 60% and 50% for the back wages. After the award they have been granted 100% back wages till reinstatement. But, in our view, as respondent Nos. 3 and 4 went to sleep while on duty and that too not alone but in company of the entire staff of 10 mazdoors, they deserve to be further punished by being deprived of at least some part of back wages even after the award of the Labour Court till actual reinstatement. Interest of justice would be served, in our view, if respondent No. 3 is directed to be paid only 40% of the back wages even after the award of the Labour Court till actual reinstatement pursuant to our present order. Similarly respondent No. 4 will be entitled to only 50% back wages even after the date of the Labour Courts award till actual reinstatement as per the present order. In addition thereto, the appellant- management will be entitled to give written warnings to both these respondents when they are reinstated in service not to repeat such misconducts in further. The imposition of this type of additional penalty, in our view, would be sufficient in the facts and circumstances of the case and will operate as suitable corrective for the respondent-employees. They have suffered enough since more than 14 years. They are out of service for all these 14 years. At the time when they went to sleep in the night shift they were pretty young. Now they have naturally grown up in age and with passage of years more maturity must have dawned on them. Under these circumstances the cut in the back wages as imposed by the Labour Court and as further imposed by us would be quite sufficient to act as deterrent for them so that such misconducts may not be committed by them in future. The third point is answered as aforesaid by holding the the order of reinstatement is justified but the order of back wages as ordered by the Labour Court requires to be modified to the aforesaid extent.
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Naruthappan Chettiar Vs. Veeramany Chettiar and Others | SHAH, J. 1. On May 13, 1936, Arumugam Chettiar and his five sons Madurayyan, Sivathanu, Subbayyan, Sankaran and Bhagavathy executed a deed of partition of the property belonging to their joint family. In the last paragraph of the deed it was provided that Madurayyan, Sivathanu, Subbayyan and Bhagavathy "shall effect alienations among themselves in respect of the property falling to their respective shares in case any alienations are to be effected". On May 2, 1959, Subbayyan transferred his share of the property to one Veeramany for Rs. 2, 500/-. Madurayyan and Bhagavathy then filed a suit in the Court of the Principal District Munsif, Nagarcoil, against the purchaser Veeramany for a decree declaring that they had a "right of pre-emption" in respect of the property sold by Subbayyan and to obtain possession of that property from Veeramany on payment of Rs. 2, 500/-. To this suit Subbayyan Chettiar and his son Arumugam Chettiar were impleaded as parties. To this suit Sivathanu was not impleaded as a party. The Trial Court dismissed the suit holding that the plaintiffs were estopped by reason of their conduct from claiming to purchase property pursuant to the covenant in the deed of partition. The District Court reversed the decree holding that the plaintiffis were entitlede to enforce the covenant. In second appeal the High Court of Madras held that the covenant in the deed of partition did not bind the alienees of the property; and could not on that account be enforced against Veeramany the purchaser. The High Court also observed that the convenant was vague and indefinite. With special leave the first plaintiff has appealed to this Court. 2. We are unable to agree with the High Court that the covenant in the deed of partition was binding only between the parties thereto. But we agree with the High Court that the covenant was vague and unenforceable. The conenant, it may be recalled, provided that Madurayyan, Sivathanu, Suibbayyan and Bhagavathy, "shall effect alienation among themselves in respect of the property falling to their respective shares" in case any alienation are to be effected. In the present case Subbayyan sold the property which fell to his share. On the terms of this covenant it is not clear whether the offer was to be made to the other brothers who were governed by the covenant and whether there was any order of priority; nor does the covenant disclose whether in the event of one or more of the brothers not desiring to purchase the property, only the remaining would be entitled to purchase it. 3. Again there is a procedural difficulty which faces the appellant. Sivathanu is not made a party to the suit. He had the right to purchase the property under the terms of the deed of partition and it was necessary that he should be made a party to the suit. In the absence of Sivathanu the suit was not maintainable. 4. The parties themselves were responsible for incorporating a covenant which is vague and indefinite, and on that account unenforceable. | 0[ds]2. We are unable to agree with the High Court that the covenant in the deed of partition was binding only between the parties thereto. But we agree with the High Court that the covenant was vague and unenforceable. The conenant, it may be recalled, provided that Madurayyan, Sivathanu, Suibbayyan and Bhagavathy, "shall effect alienation among themselves in respect of the property falling to their respective shares" in case any alienation are to be effected. In the present case Subbayyan sold the property which fell to his share.On the terms of this covenant it is not clear whether the offer was to be made to the other brothers who were governed by the covenant and whether there was any order of priority; nor does the covenant disclose whether in the event of one or more of the brothers not desiring to purchase the property, only the remaining would be entitled to purchase it3. Again there is a procedural difficulty which faces the appellant. Sivathanu is not made a party to the suit. He had the right to purchase the property under the terms of the deed of partition and it was necessary that he should be made a party to the suit. In the absence of Sivathanu the suit was not maintainable4. The parties themselves were responsible for incorporating a covenant which is vague and indefinite, and on that account unenforceable. | 0 | 565 | 255 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
SHAH, J. 1. On May 13, 1936, Arumugam Chettiar and his five sons Madurayyan, Sivathanu, Subbayyan, Sankaran and Bhagavathy executed a deed of partition of the property belonging to their joint family. In the last paragraph of the deed it was provided that Madurayyan, Sivathanu, Subbayyan and Bhagavathy "shall effect alienations among themselves in respect of the property falling to their respective shares in case any alienations are to be effected". On May 2, 1959, Subbayyan transferred his share of the property to one Veeramany for Rs. 2, 500/-. Madurayyan and Bhagavathy then filed a suit in the Court of the Principal District Munsif, Nagarcoil, against the purchaser Veeramany for a decree declaring that they had a "right of pre-emption" in respect of the property sold by Subbayyan and to obtain possession of that property from Veeramany on payment of Rs. 2, 500/-. To this suit Subbayyan Chettiar and his son Arumugam Chettiar were impleaded as parties. To this suit Sivathanu was not impleaded as a party. The Trial Court dismissed the suit holding that the plaintiffs were estopped by reason of their conduct from claiming to purchase property pursuant to the covenant in the deed of partition. The District Court reversed the decree holding that the plaintiffis were entitlede to enforce the covenant. In second appeal the High Court of Madras held that the covenant in the deed of partition did not bind the alienees of the property; and could not on that account be enforced against Veeramany the purchaser. The High Court also observed that the convenant was vague and indefinite. With special leave the first plaintiff has appealed to this Court. 2. We are unable to agree with the High Court that the covenant in the deed of partition was binding only between the parties thereto. But we agree with the High Court that the covenant was vague and unenforceable. The conenant, it may be recalled, provided that Madurayyan, Sivathanu, Suibbayyan and Bhagavathy, "shall effect alienation among themselves in respect of the property falling to their respective shares" in case any alienation are to be effected. In the present case Subbayyan sold the property which fell to his share. On the terms of this covenant it is not clear whether the offer was to be made to the other brothers who were governed by the covenant and whether there was any order of priority; nor does the covenant disclose whether in the event of one or more of the brothers not desiring to purchase the property, only the remaining would be entitled to purchase it. 3. Again there is a procedural difficulty which faces the appellant. Sivathanu is not made a party to the suit. He had the right to purchase the property under the terms of the deed of partition and it was necessary that he should be made a party to the suit. In the absence of Sivathanu the suit was not maintainable. 4. The parties themselves were responsible for incorporating a covenant which is vague and indefinite, and on that account unenforceable.
### Response:
0
### Explanation:
2. We are unable to agree with the High Court that the covenant in the deed of partition was binding only between the parties thereto. But we agree with the High Court that the covenant was vague and unenforceable. The conenant, it may be recalled, provided that Madurayyan, Sivathanu, Suibbayyan and Bhagavathy, "shall effect alienation among themselves in respect of the property falling to their respective shares" in case any alienation are to be effected. In the present case Subbayyan sold the property which fell to his share.On the terms of this covenant it is not clear whether the offer was to be made to the other brothers who were governed by the covenant and whether there was any order of priority; nor does the covenant disclose whether in the event of one or more of the brothers not desiring to purchase the property, only the remaining would be entitled to purchase it3. Again there is a procedural difficulty which faces the appellant. Sivathanu is not made a party to the suit. He had the right to purchase the property under the terms of the deed of partition and it was necessary that he should be made a party to the suit. In the absence of Sivathanu the suit was not maintainable4. The parties themselves were responsible for incorporating a covenant which is vague and indefinite, and on that account unenforceable.
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General Family Pension Fund Vs. The Commissioner Of Income-Tax,West Bengal | the order of the Tribunal, but all the same expressed their opinion thereon in the following terms"Its business is wholly a business of granting annuities on human life, and no part of its business is ordinary life insurance business."8. As we are not concerned with this matter in this appeal, there is no need to further refer to it.9. On the second question, they observed that business in annuities dependent on life as contrasted with "annuities certain" would be insurance business as defined in section 2(11) of the Act, and that the profits of that business being "gross external incomings" as defined in Rule 5(ii) must be determined under rule 2(a). Dealing next with the objection of the appellant that there had been no proper determination of the profits under Rule 2(a), they held that in the absence of profit and loss statements for the previous years and other materials the Income-tax Officer had no course open to him except to adopt the figures computed under Rule 2(b) as a basis for computation under Rule 2(a). The second question was accordingly answered in the affirmative. It is against this decision that the present appeal has been preferred on a certificate granted under section 66A(2).10. Mr. Mitra for the appellant does not dispute the position that the business of the Company on annuity policies dependent on human life is insurance business as defined in section 2(11), and that the profits of the business should therefore be computed in accordance with Rule 2 in the Schedule to the Income-tax Act. His contention is that the Income-tax Officer had failed to make the computation in accordance with Rule 2(a), and that the Tribunal was right in remanding the matter for a correct computation of the profits in accordance with the Rule. This contention must, in our opinion, succeed.11. Under Rule 2, the Income-tax Officer has to determine under clause (a) what the gross external incomings of the previous year were, and deduct out of them the managing expenses for that year. He has also to find out in terms of clause (b) the annual average surplus on the basis of actuarial valuation in the manner prescribed therein. He has then to adopt whichever is higher as the assessable profits of the year. Now the complaint of the appellant is that while a computation was made under clause (b) no independent computation was made under clause (a), and that therefore the profit had not been determined as required by the rules. It is a fact that no independent computation has been made under Rule 2(a), and, therefore there has been no compliance with the Rule.12. The learned Judges declined to uphold this objection on the ground that the Company did not place any materials before the Income-tax Officer so as to enable him to make a determination under Rule 2(a), and that in the absence of any materials the Income-tax Officer was justified in acting on the actuarial report for computing the profits even under Rule 2(a).13. The argument of the appellant is that having regard to the stand taken by either side at the stage of investigation and to the opinion expressed by the Income-tax Officer that there was no element of insurance in the annuity business of the Company, the true position under the Rules had been missed by all of them, with the result that there was no attempt made to compute the profits in terms of the provisions of Rule 2(a), that the appellant had not wilfully failed to produce any evidence, and that the observation of the learned Judges that no profit and loss statement had been produced was based on a misapprehension, as no such statement had to be prepared by an Insurance Company.14. We must now turn to the statement of the case by the Tribunal to see what had really happened before the Income-tax Officer, for the last word on questions of fact is with it, and that is binding on the Courts. Neither in the statement of the case by the Tribunal, nor in its order of remand is there any finding that the requisite materials had been withheld by the appellant. The only statement bearing on this question in the order of the Tribunal is as follows"... the Departmental Representative admitted before us that the calculations purported to have been made under Rule 2(a) were not in accordance with the requirements of Rule 2(a), but it was explained that as the information necessary for determining income under Rule 2(a) was not available, an estimate was made and the income determined under Rule 2(b) was adopted for determining the income under Rule 2(a)."15. What is referred to in this passage is only a statement of the Departmental Representative and not a finding. On the other hand, the whole tenor of the judgment of the Tribunal is that there had been no determination of the profits under Rule 2(a) by reason of the erroneous view taken by the Income-tax Officer as to the true nature of the business of the Company. If there had been a finding by the Tribunal that the requisite materials had been called for and withheld by the appellant, the decision of the High Court would be unassailable, and, indeed, that was the only one that could have been reached.16. But in the absence of such a finding, we are unable to see any ground on which the order of the Tribunal could be upset in a reference under section 66(1). When once it is found that there was no proper determination of the profits as required under Rule 2(a) - and that was indeed conceded - and there was no justification for it such as the High Court thought there was, the only order that could properly be made was to remand the case for further enquiry and fresh disposal in accordance with law. That was the order which was passed by the Tribunal, and, that, in our opinion, was right.17. | 1[ds]What is referred to in this passage is only a statement of the Departmental Representative and not a finding. On the other hand, the whole tenor of the judgment of the Tribunal is that there had been no determination of the profits under Rule 2(a) by reason of the erroneous view taken by the Income-tax Officer as to the true nature of the business of the Company. If there had been a finding by the Tribunal that the requisite materials had been called for and withheld by the appellant, the decision of the High Court would be unassailable, and, indeed, that was the only one that could have beenin the absence of such a finding, we are unable to see any ground on which the order of the Tribunal could be upset in a reference under section 66(1). When once it is found that there was no proper determination of the profits as required under Rule 2(a) - and that was indeed conceded - and there was no justification for it such as the High Court thought there was, the only order that could properly be made was to remand the case for further enquiry and fresh disposal in accordance with law. That was the order which was passed by the Tribunal, and, that, in our opinion, was right. | 1 | 2,485 | 248 | ### 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 order of the Tribunal, but all the same expressed their opinion thereon in the following terms"Its business is wholly a business of granting annuities on human life, and no part of its business is ordinary life insurance business."8. As we are not concerned with this matter in this appeal, there is no need to further refer to it.9. On the second question, they observed that business in annuities dependent on life as contrasted with "annuities certain" would be insurance business as defined in section 2(11) of the Act, and that the profits of that business being "gross external incomings" as defined in Rule 5(ii) must be determined under rule 2(a). Dealing next with the objection of the appellant that there had been no proper determination of the profits under Rule 2(a), they held that in the absence of profit and loss statements for the previous years and other materials the Income-tax Officer had no course open to him except to adopt the figures computed under Rule 2(b) as a basis for computation under Rule 2(a). The second question was accordingly answered in the affirmative. It is against this decision that the present appeal has been preferred on a certificate granted under section 66A(2).10. Mr. Mitra for the appellant does not dispute the position that the business of the Company on annuity policies dependent on human life is insurance business as defined in section 2(11), and that the profits of the business should therefore be computed in accordance with Rule 2 in the Schedule to the Income-tax Act. His contention is that the Income-tax Officer had failed to make the computation in accordance with Rule 2(a), and that the Tribunal was right in remanding the matter for a correct computation of the profits in accordance with the Rule. This contention must, in our opinion, succeed.11. Under Rule 2, the Income-tax Officer has to determine under clause (a) what the gross external incomings of the previous year were, and deduct out of them the managing expenses for that year. He has also to find out in terms of clause (b) the annual average surplus on the basis of actuarial valuation in the manner prescribed therein. He has then to adopt whichever is higher as the assessable profits of the year. Now the complaint of the appellant is that while a computation was made under clause (b) no independent computation was made under clause (a), and that therefore the profit had not been determined as required by the rules. It is a fact that no independent computation has been made under Rule 2(a), and, therefore there has been no compliance with the Rule.12. The learned Judges declined to uphold this objection on the ground that the Company did not place any materials before the Income-tax Officer so as to enable him to make a determination under Rule 2(a), and that in the absence of any materials the Income-tax Officer was justified in acting on the actuarial report for computing the profits even under Rule 2(a).13. The argument of the appellant is that having regard to the stand taken by either side at the stage of investigation and to the opinion expressed by the Income-tax Officer that there was no element of insurance in the annuity business of the Company, the true position under the Rules had been missed by all of them, with the result that there was no attempt made to compute the profits in terms of the provisions of Rule 2(a), that the appellant had not wilfully failed to produce any evidence, and that the observation of the learned Judges that no profit and loss statement had been produced was based on a misapprehension, as no such statement had to be prepared by an Insurance Company.14. We must now turn to the statement of the case by the Tribunal to see what had really happened before the Income-tax Officer, for the last word on questions of fact is with it, and that is binding on the Courts. Neither in the statement of the case by the Tribunal, nor in its order of remand is there any finding that the requisite materials had been withheld by the appellant. The only statement bearing on this question in the order of the Tribunal is as follows"... the Departmental Representative admitted before us that the calculations purported to have been made under Rule 2(a) were not in accordance with the requirements of Rule 2(a), but it was explained that as the information necessary for determining income under Rule 2(a) was not available, an estimate was made and the income determined under Rule 2(b) was adopted for determining the income under Rule 2(a)."15. What is referred to in this passage is only a statement of the Departmental Representative and not a finding. On the other hand, the whole tenor of the judgment of the Tribunal is that there had been no determination of the profits under Rule 2(a) by reason of the erroneous view taken by the Income-tax Officer as to the true nature of the business of the Company. If there had been a finding by the Tribunal that the requisite materials had been called for and withheld by the appellant, the decision of the High Court would be unassailable, and, indeed, that was the only one that could have been reached.16. But in the absence of such a finding, we are unable to see any ground on which the order of the Tribunal could be upset in a reference under section 66(1). When once it is found that there was no proper determination of the profits as required under Rule 2(a) - and that was indeed conceded - and there was no justification for it such as the High Court thought there was, the only order that could properly be made was to remand the case for further enquiry and fresh disposal in accordance with law. That was the order which was passed by the Tribunal, and, that, in our opinion, was right.17.
### Response:
1
### Explanation:
What is referred to in this passage is only a statement of the Departmental Representative and not a finding. On the other hand, the whole tenor of the judgment of the Tribunal is that there had been no determination of the profits under Rule 2(a) by reason of the erroneous view taken by the Income-tax Officer as to the true nature of the business of the Company. If there had been a finding by the Tribunal that the requisite materials had been called for and withheld by the appellant, the decision of the High Court would be unassailable, and, indeed, that was the only one that could have beenin the absence of such a finding, we are unable to see any ground on which the order of the Tribunal could be upset in a reference under section 66(1). When once it is found that there was no proper determination of the profits as required under Rule 2(a) - and that was indeed conceded - and there was no justification for it such as the High Court thought there was, the only order that could properly be made was to remand the case for further enquiry and fresh disposal in accordance with law. That was the order which was passed by the Tribunal, and, that, in our opinion, was right.
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Khet Singh Vs. Union Of India | Captive Power Plant-II and steam generating capacity of 660 MThour at the Bokaro Steel Plant.(b) Oxygen Plant-2 of Bhilai Steel Plant.(c) Salem Steel Plant (SSP), Salem.(d) Ally Steel Plant [ASP, Durgapur.(e) Visvesvaraya Iron and Steel Limited (VISL), Bhadrawati.(f) Fertilizer Plant at Rourkela.5. Conversion of IISCO into a joint venture with SAIL holding minority shareholding.The Government noted that this is one of the largest restructuring proposals considered by it involving an amount of over Rs. 8000 crore and financial restructuring alone was not a long term solution, Government has directed that Ministry of Steel sign on MOU with SAIL for implementation of a business restructuring plan with detailed milestones it has been further decided that a COMMITTEE OF Secretaries must examine and review at appropriate intervals the business restructuring plan with reference o detailed milestones and submit a progress report on a six-month basis to the Cabinet Committee on Economic Affairs (CCEA)." 7. As seen above, SDF was created by notification issued under clause 17(B) of the Control Order. Main steel plants form the primary units of the Joint Plant committee. It were only the member steel plants or the main steel plants who were subjected to add an element of their ex-works-price and remit the same towards the SDF. SAIL and TISCO were the member steel plants. SAIL was having four plants at Bhilai, Bokaro, Durgapur and Rourkela. India Iron and Steel Company Ltd. subsequently got merged with SAIL. By Notification dated January 16, 1992 the Central Government withdrew the price restrictions under the Control Order and thereafter by Notification dated April 21, 1994 contributions by the member steel producers towards the SDF was also discontinued. It is the Central government, which Exercises control over SDF though there is no backing of any statutory provision for creation of the SDF. The primary object of SDF was to enable the main steel producers for modernisation, research and development with the object of ensuring the production of iron and steel in the desired categories and grades by the main steel plants. Other steel producers who were known as secondary producers were not members of the Joint Plant committee. They were not subjected to add an element of ex-works price of steel but could add any element of their choice and not to make remittance of the same to the SDF. It does not stand to reason as to how these secondary producers are entitled to claim any amount from the corpus of SDF or to get some directions issued respecting the use of SDF. The petitioner started production only in April 1998 when four years prior to that remittance to SDF had been discontinued. It is not disputed that the petitioner was not a member of the Joint Plant Committee and did not remit any amount towards the corpus of SDF. The question is if in these circumstances the petitioner could advance a claim or exercise a right on the SDF in any manner.8. It were the members of the Joint Plant Committee who were made bound to add and element of ex-works price and to remit that amount for the constitution of SDF. It has been stated by the first respondent, Union of India, through the affidavit filed by the fourth respondent, Joint Plant Committee, that funds out of SDF were disbursed to the members Steel Plants by the SDF Managing Committee as per directions issued by the Central Government from time to time. It is then submitted that since early 1990s there has been a general recession in the steel industry. SAIL had approached the Central Government for its financial and business restructuring. SAIL had taken over Indian Iron and Steel Company Ltd., a sick company in the year 1978. Indian Iron and Steel Company Ltd. is wholly owned subsidiary of SAIL. The proposal give by SAIL to the Central Government contained various components and measures including waiver of loans from the SDF made over the members Steel Plants which were under SAIL. It will be noticed that the amount of SDF was not in fact remitted to the Central Government but was shown as credit to the Central Government in the books of SAIL and its members steel plants. This proposal of SAIL, it would appear, has since been accepted by the Central Government by its letter dated February 18, 2000 which we have reproduced above.9. While there was price control under the Control Order during the period 1978-1994 when the remittance to SDF were made by main steel producers, the petitioner was nowhere in the picture and was not subjected to any price control like the main steel producers. The petitioner and other steel producers were free to produce and sell the iron and steel products in the market on the prevailing prices. It has been pointed that price fixed by the petitioner of its products was much higher than the control price which included elements of SDF. While the collection and remittance to SDF has been discontinued w.e.f April 1994, the petitioner made its claim for the first time in 1999 which would appear to be rather incongruous. It is submitted that the claim made by the petitioner is not bona fide and writ petition has been filed with ulterior motives, which are not difficult to fathom. SAIL had stressed immediate need for restructing and modernizing all the main steel plants. Due to recession, SAIL has been passing through severe financial position and has to suffer a loss of Rs. 1574 crores in 1998-99. It has further to suffer burden of interest to the tune of Rs. 2017 crores per annum for modernisation. In the aforesaid circumstances, the petitioner does not have any right to claim any relief in the writ petition pertaining to utilisation of SDF. It is quite apparent that from the very nature of the creation of SDF, manner of remittance to SDF and purpose of its utilisation, it is a fund created ultimately for the utilisation by the member steel producers only. 10. | 1[ds]7. As seen above, SDF was created by notification issued under clause 17(B) of the Control Order. Main steel plants form the primary units of the Joint Plant committee. It were only the member steel plants or the main steel plants who were subjected to add an element of theirand remit the same towards the SDF. SAIL and TISCO were the member steel plants. SAIL was having four plants at Bhilai, Bokaro, Durgapur and Rourkela. India Iron and Steel Company Ltd. subsequently got merged with SAIL. By Notification dated January 16, 1992 the Central Government withdrew the price restrictions under the Control Order and thereafter by Notification dated April 21, 1994 contributions by the member steel producers towards the SDF was also discontinued. It is the Central government, which Exercises control over SDF though there is no backing of any statutory provision for creation of the SDF. The primary object of SDF was to enable the main steel producers for modernisation, research and development with the object of ensuring the production of iron and steel in the desired categories and grades by the main steel plants. Other steel producers who were known as secondary producers were not members of the Joint Plant committee. They were not subjected to add an element ofprice of steel but could add any element of their choice and not to make remittance of the same to the SDF. It does not stand to reason as to how these secondary producers are entitled to claim any amount from the corpus of SDF or to get some directions issued respecting the use of SDF. The petitioner started production only in April 1998 when four years prior to that remittance to SDF had been discontinued. It is not disputed that the petitioner was not a member of the Joint Plant Committee and did not remit any amount towards the corpus of SDF. The question is if in these circumstances the petitioner could advance a claim or exercise a right on the SDF in any manner.8. It were the members of the Joint Plant Committee who were made bound to add and element ofprice and to remit that amount for the constitution of SDF. It has been stated by the first respondent, Union of India, through the affidavit filed by the fourth respondent, Joint Plant Committee, that funds out of SDF were disbursed to the members Steel Plants by the SDF Managing Committee as per directions issued by the Central Government from time to time. It is then submitted that since early 1990s there has been a general recession in the steel industry. SAIL had approached the Central Government for its financial and business restructuring. SAIL had taken over Indian Iron and Steel Company Ltd., a sick company in the year 1978. Indian Iron and Steel Company Ltd. is wholly owned subsidiary of SAIL. The proposal give by SAIL to the Central Government contained various components and measures including waiver of loans from the SDF made over the members Steel Plants which were under SAIL. It will be noticed that the amount of SDF was not in fact remitted to the Central Government but was shown as credit to the Central Government in the books of SAIL and its members steel plants. This proposal of SAIL, it would appear, has since been accepted by the Central Government by its letter dated February 18, 2000 which we have reproduced above.9. While there was price control under the Control Order during the periodwhen the remittance to SDF were made by main steel producers, the petitioner was nowhere in the picture and was not subjected to any price control like the main steel producers. The petitioner and other steel producers were free to produce and sell the iron and steel products in the market on the prevailing prices. It has been pointed that price fixed by the petitioner of its products was much higher than the control price which included elements of SDF. While the collection and remittance to SDF has been discontinued w.e.f April 1994, the petitioner made its claim for the first time in 1999 which would appear to be rather incongruous. It is submitted that the claim made by the petitioner is not bona fide and writ petition has been filed with ulterior motives, which are not difficult to fathom. SAIL had stressed immediate need for restructing and modernizing all the main steel plants. Due to recession, SAIL has been passing through severe financial position and has to suffer a loss of Rs. 1574 crores inIt has further to suffer burden of interest to the tune of Rs. 2017 crores per annum for modernisation. In the aforesaid circumstances, the petitioner does not have any right to claim any relief in the writ petition pertaining to utilisation of SDF. It is quite apparent that from the very nature of the creation of SDF, manner of remittance to SDF and purpose of its utilisation, it is a fund created ultimately for the utilisation by the member steel producers only. | 1 | 3,872 | 903 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
### Input:
Captive Power Plant-II and steam generating capacity of 660 MThour at the Bokaro Steel Plant.(b) Oxygen Plant-2 of Bhilai Steel Plant.(c) Salem Steel Plant (SSP), Salem.(d) Ally Steel Plant [ASP, Durgapur.(e) Visvesvaraya Iron and Steel Limited (VISL), Bhadrawati.(f) Fertilizer Plant at Rourkela.5. Conversion of IISCO into a joint venture with SAIL holding minority shareholding.The Government noted that this is one of the largest restructuring proposals considered by it involving an amount of over Rs. 8000 crore and financial restructuring alone was not a long term solution, Government has directed that Ministry of Steel sign on MOU with SAIL for implementation of a business restructuring plan with detailed milestones it has been further decided that a COMMITTEE OF Secretaries must examine and review at appropriate intervals the business restructuring plan with reference o detailed milestones and submit a progress report on a six-month basis to the Cabinet Committee on Economic Affairs (CCEA)." 7. As seen above, SDF was created by notification issued under clause 17(B) of the Control Order. Main steel plants form the primary units of the Joint Plant committee. It were only the member steel plants or the main steel plants who were subjected to add an element of their ex-works-price and remit the same towards the SDF. SAIL and TISCO were the member steel plants. SAIL was having four plants at Bhilai, Bokaro, Durgapur and Rourkela. India Iron and Steel Company Ltd. subsequently got merged with SAIL. By Notification dated January 16, 1992 the Central Government withdrew the price restrictions under the Control Order and thereafter by Notification dated April 21, 1994 contributions by the member steel producers towards the SDF was also discontinued. It is the Central government, which Exercises control over SDF though there is no backing of any statutory provision for creation of the SDF. The primary object of SDF was to enable the main steel producers for modernisation, research and development with the object of ensuring the production of iron and steel in the desired categories and grades by the main steel plants. Other steel producers who were known as secondary producers were not members of the Joint Plant committee. They were not subjected to add an element of ex-works price of steel but could add any element of their choice and not to make remittance of the same to the SDF. It does not stand to reason as to how these secondary producers are entitled to claim any amount from the corpus of SDF or to get some directions issued respecting the use of SDF. The petitioner started production only in April 1998 when four years prior to that remittance to SDF had been discontinued. It is not disputed that the petitioner was not a member of the Joint Plant Committee and did not remit any amount towards the corpus of SDF. The question is if in these circumstances the petitioner could advance a claim or exercise a right on the SDF in any manner.8. It were the members of the Joint Plant Committee who were made bound to add and element of ex-works price and to remit that amount for the constitution of SDF. It has been stated by the first respondent, Union of India, through the affidavit filed by the fourth respondent, Joint Plant Committee, that funds out of SDF were disbursed to the members Steel Plants by the SDF Managing Committee as per directions issued by the Central Government from time to time. It is then submitted that since early 1990s there has been a general recession in the steel industry. SAIL had approached the Central Government for its financial and business restructuring. SAIL had taken over Indian Iron and Steel Company Ltd., a sick company in the year 1978. Indian Iron and Steel Company Ltd. is wholly owned subsidiary of SAIL. The proposal give by SAIL to the Central Government contained various components and measures including waiver of loans from the SDF made over the members Steel Plants which were under SAIL. It will be noticed that the amount of SDF was not in fact remitted to the Central Government but was shown as credit to the Central Government in the books of SAIL and its members steel plants. This proposal of SAIL, it would appear, has since been accepted by the Central Government by its letter dated February 18, 2000 which we have reproduced above.9. While there was price control under the Control Order during the period 1978-1994 when the remittance to SDF were made by main steel producers, the petitioner was nowhere in the picture and was not subjected to any price control like the main steel producers. The petitioner and other steel producers were free to produce and sell the iron and steel products in the market on the prevailing prices. It has been pointed that price fixed by the petitioner of its products was much higher than the control price which included elements of SDF. While the collection and remittance to SDF has been discontinued w.e.f April 1994, the petitioner made its claim for the first time in 1999 which would appear to be rather incongruous. It is submitted that the claim made by the petitioner is not bona fide and writ petition has been filed with ulterior motives, which are not difficult to fathom. SAIL had stressed immediate need for restructing and modernizing all the main steel plants. Due to recession, SAIL has been passing through severe financial position and has to suffer a loss of Rs. 1574 crores in 1998-99. It has further to suffer burden of interest to the tune of Rs. 2017 crores per annum for modernisation. In the aforesaid circumstances, the petitioner does not have any right to claim any relief in the writ petition pertaining to utilisation of SDF. It is quite apparent that from the very nature of the creation of SDF, manner of remittance to SDF and purpose of its utilisation, it is a fund created ultimately for the utilisation by the member steel producers only. 10.
### Response:
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### Explanation:
7. As seen above, SDF was created by notification issued under clause 17(B) of the Control Order. Main steel plants form the primary units of the Joint Plant committee. It were only the member steel plants or the main steel plants who were subjected to add an element of theirand remit the same towards the SDF. SAIL and TISCO were the member steel plants. SAIL was having four plants at Bhilai, Bokaro, Durgapur and Rourkela. India Iron and Steel Company Ltd. subsequently got merged with SAIL. By Notification dated January 16, 1992 the Central Government withdrew the price restrictions under the Control Order and thereafter by Notification dated April 21, 1994 contributions by the member steel producers towards the SDF was also discontinued. It is the Central government, which Exercises control over SDF though there is no backing of any statutory provision for creation of the SDF. The primary object of SDF was to enable the main steel producers for modernisation, research and development with the object of ensuring the production of iron and steel in the desired categories and grades by the main steel plants. Other steel producers who were known as secondary producers were not members of the Joint Plant committee. They were not subjected to add an element ofprice of steel but could add any element of their choice and not to make remittance of the same to the SDF. It does not stand to reason as to how these secondary producers are entitled to claim any amount from the corpus of SDF or to get some directions issued respecting the use of SDF. The petitioner started production only in April 1998 when four years prior to that remittance to SDF had been discontinued. It is not disputed that the petitioner was not a member of the Joint Plant Committee and did not remit any amount towards the corpus of SDF. The question is if in these circumstances the petitioner could advance a claim or exercise a right on the SDF in any manner.8. It were the members of the Joint Plant Committee who were made bound to add and element ofprice and to remit that amount for the constitution of SDF. It has been stated by the first respondent, Union of India, through the affidavit filed by the fourth respondent, Joint Plant Committee, that funds out of SDF were disbursed to the members Steel Plants by the SDF Managing Committee as per directions issued by the Central Government from time to time. It is then submitted that since early 1990s there has been a general recession in the steel industry. SAIL had approached the Central Government for its financial and business restructuring. SAIL had taken over Indian Iron and Steel Company Ltd., a sick company in the year 1978. Indian Iron and Steel Company Ltd. is wholly owned subsidiary of SAIL. The proposal give by SAIL to the Central Government contained various components and measures including waiver of loans from the SDF made over the members Steel Plants which were under SAIL. It will be noticed that the amount of SDF was not in fact remitted to the Central Government but was shown as credit to the Central Government in the books of SAIL and its members steel plants. This proposal of SAIL, it would appear, has since been accepted by the Central Government by its letter dated February 18, 2000 which we have reproduced above.9. While there was price control under the Control Order during the periodwhen the remittance to SDF were made by main steel producers, the petitioner was nowhere in the picture and was not subjected to any price control like the main steel producers. The petitioner and other steel producers were free to produce and sell the iron and steel products in the market on the prevailing prices. It has been pointed that price fixed by the petitioner of its products was much higher than the control price which included elements of SDF. While the collection and remittance to SDF has been discontinued w.e.f April 1994, the petitioner made its claim for the first time in 1999 which would appear to be rather incongruous. It is submitted that the claim made by the petitioner is not bona fide and writ petition has been filed with ulterior motives, which are not difficult to fathom. SAIL had stressed immediate need for restructing and modernizing all the main steel plants. Due to recession, SAIL has been passing through severe financial position and has to suffer a loss of Rs. 1574 crores inIt has further to suffer burden of interest to the tune of Rs. 2017 crores per annum for modernisation. In the aforesaid circumstances, the petitioner does not have any right to claim any relief in the writ petition pertaining to utilisation of SDF. It is quite apparent that from the very nature of the creation of SDF, manner of remittance to SDF and purpose of its utilisation, it is a fund created ultimately for the utilisation by the member steel producers only.
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Sri Ranga Nilayam Rama Krishna Rao Vs. Kandokori Chellayamma Alias Mangamma And Another | to run from the date when the original court of execution confirms the sale. But, as was pointed out by the Privy Council, the High Court as an appellate court had the same powers as the trial court and it is only when the appea1 was dismissed by the High Court that the order of the trial court confirming the sale became absolute. Till the decision of the appellate court, no finality attached to the order confirming the sale.(17) It is clear that in this case the same rule would apply to the order recording satisfaction of the decree and to the order confirming the sale. If the order recording satisfaction of the decree was not final and remained an inchoate order untill the appeal was decided the order confirming the sale would have the same inchoate character. This position seems to have been fully conceded in the statement of their case filed on behalf of the respondents in this Court.(18) It is quite clear that in this case the learned judges of the High Court have taken up an Inconsistent position. As I have already stated, they have held, for the purpose of allowing one of the appeals that the judgment-debtors were not hit by cl. (D) of the proviso to S. 3 of the Act because they ceased to be the owners of Tedlam village at the date of the sale in 1935. If this conclusion is correct, it must follow as a matter of logic that the decree was completely satisfied on the date of the sale, because the sale fetched a larger amount than what was payable under the decree and the excess amount was deposited by the decree-holder in court. The sale and satisfaction must go together and if finality is to be attached to the sale it should have been held to attach also to the order recording satisfaction of the decree. It seems clear to me that if the decree had ceased to exist, no relief could be claimed by the judgment-debtors under the Madras Act.On the other hand, if the appeal had to be decided on the footing that the order recording satisfaction of the decree was not final, the same approach should have been made in regard to the effect of the sale. It is also clear that if the decree was satisfied on the date of sale by the application of the provisions of the Act, the sale could not stand, because how could the property be sold in execution of a decree which had been already satisfied? Yet, notwithstanding the fact that nothing was due under the decree, the High Court has held that the sale was a good sale and was to stand. The correct approach to the case would have been to assume for the purpose of the appeals that neither of the orders passed by the subordinate judge was final. On that view, the appeals to the High Court could not have been decided on the footing that the judgment-debtors had ceased to be the owners of Tedlam property and were therefore not hit by cl. (D) of the proviso to S. 3 of the Madras Act. In my opinion, the judgment of the High court cannot be sustained, and the appeals will have to be allowed.(19) I will now deal very briefly with two preliminary objections raised on behalf of the Respondents. The first objection is that the application for leave to appeal to His Majesty in Council against the order of the High Court was barred by limitation, inasmuch as the reasons stated in the affidavit filed by the appellant in the High Court in support of his application for excusing delay do not constitute sufficient reason within the meaning of S. 5, Limitation Act. The answer to this objection will be found in the facts which have been already narrated. The delay was caused mainly by reason of the review of the order of the High Court and the High Court considered that there was sufficient reason for condoning the delay. This Court cannot override the discretion exercised by the High Court and the matter cannot be reopened in these appeals. The second objection is based on the fact that the decree-holder was given a choice by the High Court to elect whether he would deposit the purchase money or have the sale set aside, and his counsel told the learned judges on the 15-11-1946, that his client wished to retain the property which he had purchased and pay the purchase money in cash. It is contended that in view of this statement it was not open to the appellant to contend that he need not pay any amount to the judgment-debtors. This objection also is entirely devoid of any substance, because there is nothing on record to show that the appellant has consented to be bound by the order of the High Court and waived his right to appeal against it by reason of the election.(20) The learned counsel for the respondent also contended that the sale should have been set aside by the High Court because the permission given to the decree-holder on 16-2-1934 to bid and set off the decretal amount against the purchase price was confined to an earlier sale and did not extend to the sale which took place on 16-3-1935 after the upset price which had been originally fixed was reduced. Personally, I am inclined to hold that the permission covered the sale in question, but in any case it is difficult to hold on the facts stated that there was any such material in regularity as would vitiate the sale. The precise argument which is put forward here was advanced in the courts below but it did not find favour either with the Subordinate Judge or with the High Court. Besides, the respondents cannot raise the point in these appeals because they have filed no appeal against the order of the High Court upholding the sale. | 1[ds]5. If this conclusion is correct, it must follow as a matter of logic that the decree was completely satisfied on the date of the sale, because the sale fetched a larger amount than what was payable under the decree and the excess amount was deposited by the decree-holder in court. The sale and satisfaction must go together and if finality is to be attached to the sale it should have been held to attach also to the order recording satisfaction of the decree. It seems clear to me that if the decree had ceased to exist, no relief could be claimed by the judgment-debtors under the Madras Act.On the other hand, if the appeal had to be decided on the footing that the order recording satisfaction of the decree was not final, the same approach should have been made in regard to the effect of the sale. It is also clear that if the decree was satisfied on the date of sale by the application of the provisions of the Act, the sale could not stand, because how could the property be sold in execution of a decree which had been already satisfied? Yet, notwithstanding the fact that nothing was due under the decree, the High Court has held that the sale was a good sale and was to stand. The correct approach to the case would have been to assume for the purpose of the appeals that neither of the orders passed by the subordinate judge was final. On that view, the appeals to the High Court could not have been decided on the footing that the judgment-debtors had ceased to be the owners of Tedlam property and were therefore not hit by cl. (D) of the proviso to S. 3 of the Madras Act. In my opinion, the judgment of the High court cannot be sustained, and the appeals will have to be allowed.(19) I will now deal very briefly with two preliminary objections raised on behalf of the Respondents. The first objection is that the application for leave to appeal to His Majesty in Council against the order of the High Court was barred by limitation, inasmuch as the reasons stated in the affidavit filed by the appellant in the High Court in support of his application for excusing delay do not constitute sufficient reason within the meaning of S. 5, Limitation Act. The answer to this objection will be found in the facts which have been already narrated. The delay was caused mainly by reason of the review of the order of the High Court and the High Court considered that there was sufficient reason for condoning the delay. This Court cannot override the discretion exercised by the High Court and the matter cannot be reopened in these appeals. The second objection is based on the fact that the decree-holder was given a choice by the High Court to elect whether he would deposit the purchase money or have the sale set aside, and his counsel told the learned judges on the 15-11-1946, that his client wished to retain the property which he had purchased and pay the purchase money in cash. It is contended that in view of this statement it was not open to the appellant to contend that he need not pay any amount to the judgment-debtors. This objection also is entirely devoid of any substance, because there is nothing on record to show that the appellant has consented to be bound by the order of the High Court and waived his right to appeal against it by reason of theThe learned counsel for the respondent also contended that the sale should have been set aside by the High Court because the permission given to the decree-holder on 16-2-1934 to bid and set off the decretal amount against the purchase price was confined to an earlier sale and did not extend to the sale which took place on 16-3-1935 after the upset price which had been originally fixed was reduced.Personally, I am inclined to hold that the permission covered the sale in question, but in any case it is difficult to hold on the facts stated that there was any such material in regularity as would vitiate the sale. The precise argument which is put forward here was advanced in the courts below but it did not find favour either with the Subordinate Judge or with the High Court. Besides, the respondents cannot raise the point in these appeals because they have filed no appeal against the order of the High Court upholding the sale. | 1 | 4,628 | 816 | ### 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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to run from the date when the original court of execution confirms the sale. But, as was pointed out by the Privy Council, the High Court as an appellate court had the same powers as the trial court and it is only when the appea1 was dismissed by the High Court that the order of the trial court confirming the sale became absolute. Till the decision of the appellate court, no finality attached to the order confirming the sale.(17) It is clear that in this case the same rule would apply to the order recording satisfaction of the decree and to the order confirming the sale. If the order recording satisfaction of the decree was not final and remained an inchoate order untill the appeal was decided the order confirming the sale would have the same inchoate character. This position seems to have been fully conceded in the statement of their case filed on behalf of the respondents in this Court.(18) It is quite clear that in this case the learned judges of the High Court have taken up an Inconsistent position. As I have already stated, they have held, for the purpose of allowing one of the appeals that the judgment-debtors were not hit by cl. (D) of the proviso to S. 3 of the Act because they ceased to be the owners of Tedlam village at the date of the sale in 1935. If this conclusion is correct, it must follow as a matter of logic that the decree was completely satisfied on the date of the sale, because the sale fetched a larger amount than what was payable under the decree and the excess amount was deposited by the decree-holder in court. The sale and satisfaction must go together and if finality is to be attached to the sale it should have been held to attach also to the order recording satisfaction of the decree. It seems clear to me that if the decree had ceased to exist, no relief could be claimed by the judgment-debtors under the Madras Act.On the other hand, if the appeal had to be decided on the footing that the order recording satisfaction of the decree was not final, the same approach should have been made in regard to the effect of the sale. It is also clear that if the decree was satisfied on the date of sale by the application of the provisions of the Act, the sale could not stand, because how could the property be sold in execution of a decree which had been already satisfied? Yet, notwithstanding the fact that nothing was due under the decree, the High Court has held that the sale was a good sale and was to stand. The correct approach to the case would have been to assume for the purpose of the appeals that neither of the orders passed by the subordinate judge was final. On that view, the appeals to the High Court could not have been decided on the footing that the judgment-debtors had ceased to be the owners of Tedlam property and were therefore not hit by cl. (D) of the proviso to S. 3 of the Madras Act. In my opinion, the judgment of the High court cannot be sustained, and the appeals will have to be allowed.(19) I will now deal very briefly with two preliminary objections raised on behalf of the Respondents. The first objection is that the application for leave to appeal to His Majesty in Council against the order of the High Court was barred by limitation, inasmuch as the reasons stated in the affidavit filed by the appellant in the High Court in support of his application for excusing delay do not constitute sufficient reason within the meaning of S. 5, Limitation Act. The answer to this objection will be found in the facts which have been already narrated. The delay was caused mainly by reason of the review of the order of the High Court and the High Court considered that there was sufficient reason for condoning the delay. This Court cannot override the discretion exercised by the High Court and the matter cannot be reopened in these appeals. The second objection is based on the fact that the decree-holder was given a choice by the High Court to elect whether he would deposit the purchase money or have the sale set aside, and his counsel told the learned judges on the 15-11-1946, that his client wished to retain the property which he had purchased and pay the purchase money in cash. It is contended that in view of this statement it was not open to the appellant to contend that he need not pay any amount to the judgment-debtors. This objection also is entirely devoid of any substance, because there is nothing on record to show that the appellant has consented to be bound by the order of the High Court and waived his right to appeal against it by reason of the election.(20) The learned counsel for the respondent also contended that the sale should have been set aside by the High Court because the permission given to the decree-holder on 16-2-1934 to bid and set off the decretal amount against the purchase price was confined to an earlier sale and did not extend to the sale which took place on 16-3-1935 after the upset price which had been originally fixed was reduced. Personally, I am inclined to hold that the permission covered the sale in question, but in any case it is difficult to hold on the facts stated that there was any such material in regularity as would vitiate the sale. The precise argument which is put forward here was advanced in the courts below but it did not find favour either with the Subordinate Judge or with the High Court. Besides, the respondents cannot raise the point in these appeals because they have filed no appeal against the order of the High Court upholding the sale.
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### Explanation:
5. If this conclusion is correct, it must follow as a matter of logic that the decree was completely satisfied on the date of the sale, because the sale fetched a larger amount than what was payable under the decree and the excess amount was deposited by the decree-holder in court. The sale and satisfaction must go together and if finality is to be attached to the sale it should have been held to attach also to the order recording satisfaction of the decree. It seems clear to me that if the decree had ceased to exist, no relief could be claimed by the judgment-debtors under the Madras Act.On the other hand, if the appeal had to be decided on the footing that the order recording satisfaction of the decree was not final, the same approach should have been made in regard to the effect of the sale. It is also clear that if the decree was satisfied on the date of sale by the application of the provisions of the Act, the sale could not stand, because how could the property be sold in execution of a decree which had been already satisfied? Yet, notwithstanding the fact that nothing was due under the decree, the High Court has held that the sale was a good sale and was to stand. The correct approach to the case would have been to assume for the purpose of the appeals that neither of the orders passed by the subordinate judge was final. On that view, the appeals to the High Court could not have been decided on the footing that the judgment-debtors had ceased to be the owners of Tedlam property and were therefore not hit by cl. (D) of the proviso to S. 3 of the Madras Act. In my opinion, the judgment of the High court cannot be sustained, and the appeals will have to be allowed.(19) I will now deal very briefly with two preliminary objections raised on behalf of the Respondents. The first objection is that the application for leave to appeal to His Majesty in Council against the order of the High Court was barred by limitation, inasmuch as the reasons stated in the affidavit filed by the appellant in the High Court in support of his application for excusing delay do not constitute sufficient reason within the meaning of S. 5, Limitation Act. The answer to this objection will be found in the facts which have been already narrated. The delay was caused mainly by reason of the review of the order of the High Court and the High Court considered that there was sufficient reason for condoning the delay. This Court cannot override the discretion exercised by the High Court and the matter cannot be reopened in these appeals. The second objection is based on the fact that the decree-holder was given a choice by the High Court to elect whether he would deposit the purchase money or have the sale set aside, and his counsel told the learned judges on the 15-11-1946, that his client wished to retain the property which he had purchased and pay the purchase money in cash. It is contended that in view of this statement it was not open to the appellant to contend that he need not pay any amount to the judgment-debtors. This objection also is entirely devoid of any substance, because there is nothing on record to show that the appellant has consented to be bound by the order of the High Court and waived his right to appeal against it by reason of theThe learned counsel for the respondent also contended that the sale should have been set aside by the High Court because the permission given to the decree-holder on 16-2-1934 to bid and set off the decretal amount against the purchase price was confined to an earlier sale and did not extend to the sale which took place on 16-3-1935 after the upset price which had been originally fixed was reduced.Personally, I am inclined to hold that the permission covered the sale in question, but in any case it is difficult to hold on the facts stated that there was any such material in regularity as would vitiate the sale. The precise argument which is put forward here was advanced in the courts below but it did not find favour either with the Subordinate Judge or with the High Court. Besides, the respondents cannot raise the point in these appeals because they have filed no appeal against the order of the High Court upholding the sale.
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Subhash Chander Katyal Vs. Union of India & Others | 1. Heard Dr. Balram Singh, along with Mr. Ajay Kumar Talesara, learned counsel for the petitioner.2. In the present writ petition preferred under Article 32 of the Constitution of India, the petitioner has prayed for issuance of a writ of mandamus and appropriate directions commanding the respondents, namely, the Union of India and all the States and Union Territories to incorporate detailed life history and teachings of all the ten Sikh Gurus along with Guru Granth Saheb in syllabus of all the classes in history books for teaching. It is urged in the petition that the life history of Sikh Gurus and history of Sikhs have not been given appropriate place in history books whereas there is mention of other historical personalities and different rulers.3. Without entering into the merits, suffice it to say that what shall be taught in the schools or what shall be included in the syllabus of all classes cannot be directed by this Court in exercise of power of judicial review and also in exercise of power relating to entertaining public interest litigation where rule of locus is not insisted upon and the scope and ambit have been exercised. The present case comes within the realm of public interest litigation.4. According to the learned counsel for the petitioner, the cause of public interest would be best sub-served if this Court directs the respondents to incorporate complete history and teachings of Gurus in the syllabus of history books of all classes.5. Be it noted, despite expanded horizon, public interest litigation has its own limitations. Any litigant should not feel, when he files a public interest litigation that his hope and aspirations for anything and everything deserves to crystalise. He should not harbour the feelings that for any idea to be fructified, he can knock at the doors of this Court under Article 32 of the Constitution of India. The broad canvass that is sought to be painted in this petition, as it appears to us, does not come within the domain and sphere of the public interest litigation. | 0[ds]3. Without entering into the merits, suffice it to say that what shall be taught in the schools or what shall be included in the syllabus of all classes cannot be directed by this Court in exercise of power of judicial review and also in exercise of power relating to entertaining public interest litigation where rule of locus is not insisted upon and the scope and ambit have been exercised. The present case comes within the realm of public interest litigation.Be it noted, despite expanded horizon, public interest litigation has its own limitations. Any litigant should not feel, when he files a public interest litigation that his hope and aspirations for anything and everything deserves to crystalise. He should not harbour the feelings that for any idea to be fructified, he can knock at the doors of this Court under Article 32 of the Constitution of India. The broad canvass that is sought to be painted in this petition, as it appears to us, does not come within the domain and sphere of the public interest litigation. | 0 | 367 | 195 | ### Instruction:
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1. Heard Dr. Balram Singh, along with Mr. Ajay Kumar Talesara, learned counsel for the petitioner.2. In the present writ petition preferred under Article 32 of the Constitution of India, the petitioner has prayed for issuance of a writ of mandamus and appropriate directions commanding the respondents, namely, the Union of India and all the States and Union Territories to incorporate detailed life history and teachings of all the ten Sikh Gurus along with Guru Granth Saheb in syllabus of all the classes in history books for teaching. It is urged in the petition that the life history of Sikh Gurus and history of Sikhs have not been given appropriate place in history books whereas there is mention of other historical personalities and different rulers.3. Without entering into the merits, suffice it to say that what shall be taught in the schools or what shall be included in the syllabus of all classes cannot be directed by this Court in exercise of power of judicial review and also in exercise of power relating to entertaining public interest litigation where rule of locus is not insisted upon and the scope and ambit have been exercised. The present case comes within the realm of public interest litigation.4. According to the learned counsel for the petitioner, the cause of public interest would be best sub-served if this Court directs the respondents to incorporate complete history and teachings of Gurus in the syllabus of history books of all classes.5. Be it noted, despite expanded horizon, public interest litigation has its own limitations. Any litigant should not feel, when he files a public interest litigation that his hope and aspirations for anything and everything deserves to crystalise. He should not harbour the feelings that for any idea to be fructified, he can knock at the doors of this Court under Article 32 of the Constitution of India. The broad canvass that is sought to be painted in this petition, as it appears to us, does not come within the domain and sphere of the public interest litigation.
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0
### Explanation:
3. Without entering into the merits, suffice it to say that what shall be taught in the schools or what shall be included in the syllabus of all classes cannot be directed by this Court in exercise of power of judicial review and also in exercise of power relating to entertaining public interest litigation where rule of locus is not insisted upon and the scope and ambit have been exercised. The present case comes within the realm of public interest litigation.Be it noted, despite expanded horizon, public interest litigation has its own limitations. Any litigant should not feel, when he files a public interest litigation that his hope and aspirations for anything and everything deserves to crystalise. He should not harbour the feelings that for any idea to be fructified, he can knock at the doors of this Court under Article 32 of the Constitution of India. The broad canvass that is sought to be painted in this petition, as it appears to us, does not come within the domain and sphere of the public interest litigation.
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Kamrunnissa Vs. Union of India | petitioner, have arrived at a conclusion, that the petitioner could not establish that her deceased husband, Gafoor Sab, had purchased a ticket, and was in the process of boarding the train at Devanagere railway station, when the accident had taken place. 5. Learned counsel for the petitioner vehemently contended, that there was no justification for the courts below to have recorded such a conclusion, inasmuch as, it was clearly apparent from the inquest report prepared by the Assistant Commissioner, Railway Police Station, Devangere, that the death of the husband of the petitioner, Gafoor Sab, was caused on account of a railway accident. It was, therefore, the contention of learned counsel for the petitioner, that it should be presumed, that deceased Gafoor Sab had purchased a ticket, and he was in the process of boarding the train at the Devangere railway station, when the accident had taken place. 6. We have considered the contentions advanced at the hands of the rival parties. We are of the view, that the issue in hand can be determined on the basis of paragraphs 7 & 8 of the inquest report, submitted by the Assistant Commissioner, Railway Police Station, Devangere. The above paragraphs are extracted hereunder :"VIIDead body was lying in two pieces on Road. No one on the Railway track, with head towards South and lying inside down, legs towards North which had become into two pices and lying next to the Railway Track, muscle and intestine has come out of the body. White full shirt, White Dhoti and Spectacle. White Chappals, there is a diary in his pocket having few phone numbers. No other items are found apart from this. VIIIDead body was lying in two pieces on Road. No one on the Railway track, with head towards South and lying inside down, legs towards North, Railway track is facing East West direction. Towards North : Road Nos.2, 3 and Good Shed road, South by : PF 1 AND THEN Quarters of Railway Staff, a) b) c) No. "A perusal of the aforesaid report reveals, that the body of the deceased, Gafoor Sab, was found on road. It is, therefore, not possible for us to accept, that the railway accident in question had taken place when the deceased was boarding the train on the railway station. 7. The afore stated report also reveals, that the body of the deceased had been cut into two pieces, and was lying next to the railway track. The report further indicates, that the intestine of the deceased had come out of the body. The above factual position reveals, that the body was cut into two pieces from the stomach. This can be inferred from the facts expressed in the inquest report, that the intestines of the deceased had come out of the body. It is not possible for us to accept, that such an accident could have taken place while boarding a train. 8. In addition to the factual position emerging out of a perusal of paragraphs 7 & 8 extracted herein above, the report also reveals, that besides a pocket diary having been found from the person of the deceased a few telephone numbers were also found, but importantly, the deceased was not in possession of any other article. This further clears the position adopted by the railway authorities, namely, that the deceased Gafoor Sab, was not in possession of a ticket, for boarding the train at the Devangere railway station. 9. In addition to the above, it is necessary to refer to the factual position disclosed in the First Information Report, recorded in matter. Relevant extract thereof is reproduced :"On 8.5.2007 SM. Devangere has sent a message in writing, on verifying the same it is observed that one male person of 65 years, was caught below the moving train on Road 1, and he died. On the information given by the passengers, case has been Registered in UDR No.26/2007 Under Section 174 CR PC and conducted investigation. Nobody identified the dead body at the time of post mortem. After completing the Panchaname the dead body was sent to Devangere Government Hospital for conducting Post Mortem and kept in the mortuary room. On telephoning to the number found in the slip which the deceased had kept in his pocket, it was of resident of Thurubagatta, they came and identified the dead body as Gafarsab, aged about 62 years, R/at Thurubaghatta. On enquiring with the brother of the deceased it is learnt that the deceased was aged and he was not working anywhere and he was residing with his wife. They have no children. He was going to his relatives house often and often. They had relatives at Bangalore also and he was coming to Bangalore often and often. Accordingly yesterday ie. On 6.5.2007 he told that he is going to Bangalore. When he came to Devangere Railway Station, he was caught to the train and he died. There is no other reason for his death. On verification of the position of the dead body circumstances of the spot, opinion of Panchas and opinion of Doctors, statement of blood witnesses, it is seen from investigation that the deceased was coming to Bangalore on some work, while crossing the Railway Track, he did not notice the train which was coming, he was caught below the train and died. Hence the death of deceased is considered as unnatural death and submitted a Final Report seeking for permission of your authority."A perusal of the First Information Report, leaves no room for any doubt, that the deceased was seen coming from the direction of Bangalore, and while crossing the railway track, he having not noticed the oncoming train, was over run by the train. In view of the factual position depicted in the First Information Report, as also the inquest report, we find no justification in entertaining a challenge to the orders passed by the Railway Claims Tribunal, as also, by the High Court, while rejecting the claim of the petitioner. | 0[ds]6. We have considered the contentions advanced at the hands of the rival parties. We are of the view, that the issue in hand can be determined on the basis of paragraphs 7 & 8 of the inquest report, submitted by the Assistant Commissioner, Railway Police Station,perusal of the aforesaid report reveals, that the body of the deceased, Gafoor Sab, was found on road. It is, therefore, not possible for us to accept, that the railway accident in question had taken place when the deceased was boarding the train on the railway station.The afore stated report also reveals, that the body of the deceased had been cut into two pieces, and was lying next to the railway track. The report further indicates, that the intestine of the deceased had come out of the body. The above factual position reveals, that the body was cut into two pieces from the stomach. This can be inferred from the facts expressed in the inquest report, that the intestines of the deceased had come out of the body. It is not possible for us to accept, that such an accident could have taken place while boarding a train.In addition to the factual position emerging out of a perusal of paragraphs 7 & 8 extracted herein above, the report also reveals, that besides a pocket diary having been found from the person of the deceased a few telephone numbers were also found, but importantly, the deceased was not in possession of any other article. This further clears the position adopted by the railway authorities, namely, that the deceased Gafoor Sab, was not in possession of a ticket, for boarding the train at the Devangere railwayperusal of the First Information Report, leaves no room for any doubt, that the deceased was seen coming from the direction of Bangalore, and while crossing the railway track, he having not noticed the oncoming train, was over run by the train. In view of the factual position depicted in the First Information Report, as also the inquest report, we find no justification in entertaining a challenge to the orders passed by the Railway Claims Tribunal, as also, by the High Court, while rejecting the claim of the petitioner. | 0 | 1,251 | 417 | ### Instruction:
First, predict whether the appeal in case proceeding will be accepted (1) or not (0), and then explain the decision by identifying crucial sentences from the document.
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petitioner, have arrived at a conclusion, that the petitioner could not establish that her deceased husband, Gafoor Sab, had purchased a ticket, and was in the process of boarding the train at Devanagere railway station, when the accident had taken place. 5. Learned counsel for the petitioner vehemently contended, that there was no justification for the courts below to have recorded such a conclusion, inasmuch as, it was clearly apparent from the inquest report prepared by the Assistant Commissioner, Railway Police Station, Devangere, that the death of the husband of the petitioner, Gafoor Sab, was caused on account of a railway accident. It was, therefore, the contention of learned counsel for the petitioner, that it should be presumed, that deceased Gafoor Sab had purchased a ticket, and he was in the process of boarding the train at the Devangere railway station, when the accident had taken place. 6. We have considered the contentions advanced at the hands of the rival parties. We are of the view, that the issue in hand can be determined on the basis of paragraphs 7 & 8 of the inquest report, submitted by the Assistant Commissioner, Railway Police Station, Devangere. The above paragraphs are extracted hereunder :"VIIDead body was lying in two pieces on Road. No one on the Railway track, with head towards South and lying inside down, legs towards North which had become into two pices and lying next to the Railway Track, muscle and intestine has come out of the body. White full shirt, White Dhoti and Spectacle. White Chappals, there is a diary in his pocket having few phone numbers. No other items are found apart from this. VIIIDead body was lying in two pieces on Road. No one on the Railway track, with head towards South and lying inside down, legs towards North, Railway track is facing East West direction. Towards North : Road Nos.2, 3 and Good Shed road, South by : PF 1 AND THEN Quarters of Railway Staff, a) b) c) No. "A perusal of the aforesaid report reveals, that the body of the deceased, Gafoor Sab, was found on road. It is, therefore, not possible for us to accept, that the railway accident in question had taken place when the deceased was boarding the train on the railway station. 7. The afore stated report also reveals, that the body of the deceased had been cut into two pieces, and was lying next to the railway track. The report further indicates, that the intestine of the deceased had come out of the body. The above factual position reveals, that the body was cut into two pieces from the stomach. This can be inferred from the facts expressed in the inquest report, that the intestines of the deceased had come out of the body. It is not possible for us to accept, that such an accident could have taken place while boarding a train. 8. In addition to the factual position emerging out of a perusal of paragraphs 7 & 8 extracted herein above, the report also reveals, that besides a pocket diary having been found from the person of the deceased a few telephone numbers were also found, but importantly, the deceased was not in possession of any other article. This further clears the position adopted by the railway authorities, namely, that the deceased Gafoor Sab, was not in possession of a ticket, for boarding the train at the Devangere railway station. 9. In addition to the above, it is necessary to refer to the factual position disclosed in the First Information Report, recorded in matter. Relevant extract thereof is reproduced :"On 8.5.2007 SM. Devangere has sent a message in writing, on verifying the same it is observed that one male person of 65 years, was caught below the moving train on Road 1, and he died. On the information given by the passengers, case has been Registered in UDR No.26/2007 Under Section 174 CR PC and conducted investigation. Nobody identified the dead body at the time of post mortem. After completing the Panchaname the dead body was sent to Devangere Government Hospital for conducting Post Mortem and kept in the mortuary room. On telephoning to the number found in the slip which the deceased had kept in his pocket, it was of resident of Thurubagatta, they came and identified the dead body as Gafarsab, aged about 62 years, R/at Thurubaghatta. On enquiring with the brother of the deceased it is learnt that the deceased was aged and he was not working anywhere and he was residing with his wife. They have no children. He was going to his relatives house often and often. They had relatives at Bangalore also and he was coming to Bangalore often and often. Accordingly yesterday ie. On 6.5.2007 he told that he is going to Bangalore. When he came to Devangere Railway Station, he was caught to the train and he died. There is no other reason for his death. On verification of the position of the dead body circumstances of the spot, opinion of Panchas and opinion of Doctors, statement of blood witnesses, it is seen from investigation that the deceased was coming to Bangalore on some work, while crossing the Railway Track, he did not notice the train which was coming, he was caught below the train and died. Hence the death of deceased is considered as unnatural death and submitted a Final Report seeking for permission of your authority."A perusal of the First Information Report, leaves no room for any doubt, that the deceased was seen coming from the direction of Bangalore, and while crossing the railway track, he having not noticed the oncoming train, was over run by the train. In view of the factual position depicted in the First Information Report, as also the inquest report, we find no justification in entertaining a challenge to the orders passed by the Railway Claims Tribunal, as also, by the High Court, while rejecting the claim of the petitioner.
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6. We have considered the contentions advanced at the hands of the rival parties. We are of the view, that the issue in hand can be determined on the basis of paragraphs 7 & 8 of the inquest report, submitted by the Assistant Commissioner, Railway Police Station,perusal of the aforesaid report reveals, that the body of the deceased, Gafoor Sab, was found on road. It is, therefore, not possible for us to accept, that the railway accident in question had taken place when the deceased was boarding the train on the railway station.The afore stated report also reveals, that the body of the deceased had been cut into two pieces, and was lying next to the railway track. The report further indicates, that the intestine of the deceased had come out of the body. The above factual position reveals, that the body was cut into two pieces from the stomach. This can be inferred from the facts expressed in the inquest report, that the intestines of the deceased had come out of the body. It is not possible for us to accept, that such an accident could have taken place while boarding a train.In addition to the factual position emerging out of a perusal of paragraphs 7 & 8 extracted herein above, the report also reveals, that besides a pocket diary having been found from the person of the deceased a few telephone numbers were also found, but importantly, the deceased was not in possession of any other article. This further clears the position adopted by the railway authorities, namely, that the deceased Gafoor Sab, was not in possession of a ticket, for boarding the train at the Devangere railwayperusal of the First Information Report, leaves no room for any doubt, that the deceased was seen coming from the direction of Bangalore, and while crossing the railway track, he having not noticed the oncoming train, was over run by the train. In view of the factual position depicted in the First Information Report, as also the inquest report, we find no justification in entertaining a challenge to the orders passed by the Railway Claims Tribunal, as also, by the High Court, while rejecting the claim of the petitioner.
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TUKARAM S/O SADASHIV CHAUDHARI Vs. THE EXECUTIVE ENGINEER, MAHARASHTRA STATE ELECTRICITY DISTRIBUTION COMPANY LTD. & ANR | held that though the appellant had applied for an electricity connection in 1996, he did not submit a test report. The SCDRC held that at the highest, the respondent could be held liable for a deficiency in service as the electricity connection was not given even after 2007. Yet the appeal was allowed and the complaint was, in consequence, dismissed. 9. When the appellant carried the matter to the NCDRC, the revision was initially dismissed. However, the appellant filed a review petition. The Review Petition was allowed and a compensation of Rs 2,00,000 was awarded to the appellant. 10. Mr. Vinay Navare, learned senior counsel appearing on behalf of the appellant submits that this is a case where an agriculturist was left in the lurch for nearly nineteen years after the submission of an application for the grant of an electricity connection. It was urged that in the written statement, a false stand was taken by the respondent to the effect that the electricity connection had already been granted. The fact of the matter is that it was only when the High Court of Judicature at Bombay passed an order on 14 August 2015 in Criminal Writ Petition No. 247 of 2005 that the connection was granted on 4 September 2015. Hence, it was urged that a case for the grant of compensation was made out since the appellant was disabled from using his bore well in the absence of electricity. The purpose of having a bore well was defeated as a consequence of which the land of the appellant could not be irrigated. The damage which was sustained by the appellant, was in the submission, liable to be compensated. The award of Rs 2,00,000, it was urged, does not meet the requirement of fair compensation. 11. On the other hand, learned counsel appearing on behalf of the respondent submitted that it was the failure of the appellant to submit a test report for nearly eight years after the submission of the application that led to a delay in the grant of an electricity connection. Reliance was placed on an undertaking alleged to have been issued by the appellant on 2 February 2007 to the effect that he had been granted a connection for the purposes of the bore well after the order of the District Forum (On this aspect, Mr. Navare, learned senior counsel has pointed out that the alleged undertaking has been produced for the first time before this Court in the counter affidavit and was not either pleaded or set up in the proceedings before the District Forum.) 12. The facts as they emerge from the record indicate that the appellant had initially applied for an electricity connection in December 1996. The appellant, however, submitted a test report, which is a requirement for obtaining such a connection, only in March 2005. Hence, the respondent cannot be faulted for the delay which occurred between the date of the submission of the application and until the appellant complied with the requirement of submitting a test report. 13. But the fact of the matter is that the test report was submitted on 24 March 2005. There is no cogent explanation on the part of the respondent as to why a decade thereafter elapsed before the electricity connection was granted to the appellant. As a matter of fact, a criminal complaint was lodged by the appellant. Criminal Writ Petition No. 247/2015 was instituted by the Executive Engineer of the respondent. On 14 August 2015, a Division Bench of the Bombay High Court, while quashing the complaint, passed the following order: ?The learned counsel appearing for the petitioners, on instructions of Assistant Engineer i.e. petitioner no. 2, makes a statement that, by 5th September, 2015 the new meter with electric supply will be supplied in agricultural field of Respondent no. 1 i.e. in Gut No. 258/1B at Bamkheda Shivar, Tq. Shahada, Dist. Nandurbar. The earlier electricity bills will be treated as ‘Zero?. 2. In the light of statement of the learned Advocate appearing for the petitioners, the learned counsel appearing for Respondent No. 1, on instructions of Respondent No. 1, submits that, the Respondent No. 1 has no objection, if the Petition is allowed and the proceedings in R.C.C. No. 4/2015 pending on the file of J.M.F.C. Shahada are quashed and set aside along with Crime No. 1/2015 under Sections 166, 167, 384, 420, 465, 468, 471, 477A and 34 of I.P.C. r/w Section 66D of Information Technology Act, 2002 registered with Sarangkheda Police Station, Dist. Nandurbar. 3. In the light of above, the proceedings in R.C.C. No. 4/2015 pending on the file of J.M.F.C. Shahada and Crime No. 1/2015 under Sections 166, 167, 384, 420, 465, 468, 471, 477A and 34 of I.P.C. r/w Section 66D of Information Technology Act, 2002 registered with Sarangkheda Police Station, Dist. Nandurbar are quashed and set aside. The Petition stands allowed in above terms.? 14. The above order indicates that a statement was made on behalf of the respondents that a new meter with electricity supply will be provided to the agricultural field of the appellant on 5 September 2015. Such an exercise was carried out on 4 September 2015. 15. In this background, we are of the view that the appellant has suffered hardship and inconvenience as a result of an unexplained delay of one decade on the part of the respondent(s) in granting an electricity connection. After the submission of the test report, no further steps were required to be carried out by the appellant. The appellant evidently required an electricity connection for the purpose of activating the bore well for supplying water to his agricultural fields. 16. In our view, having regard to the above facts and circumstances of the case, the grant of compensation by the NCDRC in the amount of Rs 2,00,000 will not be adequate to meet the requirement of just and fair compensation to a consumer who has suffered as a consequence of the default of the respondent. | 1[ds]12. The facts as they emerge from the record indicate that the appellant had initially applied for an electricity connection in December 1996. The appellant, however, submitted a test report, which is a requirement for obtaining such a connection, only in March 2005. Hence, the respondent cannot be faulted for the delay which occurred between the date of the submission of the application and until the appellant complied with the requirement of submitting a test report14. The above order indicates that a statement was made on behalf of the respondents that a new meter with electricity supply will be provided to the agricultural field of the appellant on 5 September 2015. Such an exercise was carried out on 4 September 201515. In this background, we are of the view that the appellant has suffered hardship and inconvenience as a result of an unexplained delay of one decade on the part of the respondent(s) in granting an electricity connection. After the submission of the test report, no further steps were required to be carried out by the appellant. The appellant evidently required an electricity connection for the purpose of activating the bore well for supplying water to his agricultural fields16. In our view, having regard to the above facts and circumstances of the case, the grant of compensation by the NCDRC in the amount of Rs 2,00,000 will not be adequate to meet the requirement of just and fair compensation to a consumer who has suffered as a consequence of the default of the respondent. | 1 | 1,733 | 281 | ### 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:
held that though the appellant had applied for an electricity connection in 1996, he did not submit a test report. The SCDRC held that at the highest, the respondent could be held liable for a deficiency in service as the electricity connection was not given even after 2007. Yet the appeal was allowed and the complaint was, in consequence, dismissed. 9. When the appellant carried the matter to the NCDRC, the revision was initially dismissed. However, the appellant filed a review petition. The Review Petition was allowed and a compensation of Rs 2,00,000 was awarded to the appellant. 10. Mr. Vinay Navare, learned senior counsel appearing on behalf of the appellant submits that this is a case where an agriculturist was left in the lurch for nearly nineteen years after the submission of an application for the grant of an electricity connection. It was urged that in the written statement, a false stand was taken by the respondent to the effect that the electricity connection had already been granted. The fact of the matter is that it was only when the High Court of Judicature at Bombay passed an order on 14 August 2015 in Criminal Writ Petition No. 247 of 2005 that the connection was granted on 4 September 2015. Hence, it was urged that a case for the grant of compensation was made out since the appellant was disabled from using his bore well in the absence of electricity. The purpose of having a bore well was defeated as a consequence of which the land of the appellant could not be irrigated. The damage which was sustained by the appellant, was in the submission, liable to be compensated. The award of Rs 2,00,000, it was urged, does not meet the requirement of fair compensation. 11. On the other hand, learned counsel appearing on behalf of the respondent submitted that it was the failure of the appellant to submit a test report for nearly eight years after the submission of the application that led to a delay in the grant of an electricity connection. Reliance was placed on an undertaking alleged to have been issued by the appellant on 2 February 2007 to the effect that he had been granted a connection for the purposes of the bore well after the order of the District Forum (On this aspect, Mr. Navare, learned senior counsel has pointed out that the alleged undertaking has been produced for the first time before this Court in the counter affidavit and was not either pleaded or set up in the proceedings before the District Forum.) 12. The facts as they emerge from the record indicate that the appellant had initially applied for an electricity connection in December 1996. The appellant, however, submitted a test report, which is a requirement for obtaining such a connection, only in March 2005. Hence, the respondent cannot be faulted for the delay which occurred between the date of the submission of the application and until the appellant complied with the requirement of submitting a test report. 13. But the fact of the matter is that the test report was submitted on 24 March 2005. There is no cogent explanation on the part of the respondent as to why a decade thereafter elapsed before the electricity connection was granted to the appellant. As a matter of fact, a criminal complaint was lodged by the appellant. Criminal Writ Petition No. 247/2015 was instituted by the Executive Engineer of the respondent. On 14 August 2015, a Division Bench of the Bombay High Court, while quashing the complaint, passed the following order: ?The learned counsel appearing for the petitioners, on instructions of Assistant Engineer i.e. petitioner no. 2, makes a statement that, by 5th September, 2015 the new meter with electric supply will be supplied in agricultural field of Respondent no. 1 i.e. in Gut No. 258/1B at Bamkheda Shivar, Tq. Shahada, Dist. Nandurbar. The earlier electricity bills will be treated as ‘Zero?. 2. In the light of statement of the learned Advocate appearing for the petitioners, the learned counsel appearing for Respondent No. 1, on instructions of Respondent No. 1, submits that, the Respondent No. 1 has no objection, if the Petition is allowed and the proceedings in R.C.C. No. 4/2015 pending on the file of J.M.F.C. Shahada are quashed and set aside along with Crime No. 1/2015 under Sections 166, 167, 384, 420, 465, 468, 471, 477A and 34 of I.P.C. r/w Section 66D of Information Technology Act, 2002 registered with Sarangkheda Police Station, Dist. Nandurbar. 3. In the light of above, the proceedings in R.C.C. No. 4/2015 pending on the file of J.M.F.C. Shahada and Crime No. 1/2015 under Sections 166, 167, 384, 420, 465, 468, 471, 477A and 34 of I.P.C. r/w Section 66D of Information Technology Act, 2002 registered with Sarangkheda Police Station, Dist. Nandurbar are quashed and set aside. The Petition stands allowed in above terms.? 14. The above order indicates that a statement was made on behalf of the respondents that a new meter with electricity supply will be provided to the agricultural field of the appellant on 5 September 2015. Such an exercise was carried out on 4 September 2015. 15. In this background, we are of the view that the appellant has suffered hardship and inconvenience as a result of an unexplained delay of one decade on the part of the respondent(s) in granting an electricity connection. After the submission of the test report, no further steps were required to be carried out by the appellant. The appellant evidently required an electricity connection for the purpose of activating the bore well for supplying water to his agricultural fields. 16. In our view, having regard to the above facts and circumstances of the case, the grant of compensation by the NCDRC in the amount of Rs 2,00,000 will not be adequate to meet the requirement of just and fair compensation to a consumer who has suffered as a consequence of the default of the respondent.
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1
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12. The facts as they emerge from the record indicate that the appellant had initially applied for an electricity connection in December 1996. The appellant, however, submitted a test report, which is a requirement for obtaining such a connection, only in March 2005. Hence, the respondent cannot be faulted for the delay which occurred between the date of the submission of the application and until the appellant complied with the requirement of submitting a test report14. The above order indicates that a statement was made on behalf of the respondents that a new meter with electricity supply will be provided to the agricultural field of the appellant on 5 September 2015. Such an exercise was carried out on 4 September 201515. In this background, we are of the view that the appellant has suffered hardship and inconvenience as a result of an unexplained delay of one decade on the part of the respondent(s) in granting an electricity connection. After the submission of the test report, no further steps were required to be carried out by the appellant. The appellant evidently required an electricity connection for the purpose of activating the bore well for supplying water to his agricultural fields16. In our view, having regard to the above facts and circumstances of the case, the grant of compensation by the NCDRC in the amount of Rs 2,00,000 will not be adequate to meet the requirement of just and fair compensation to a consumer who has suffered as a consequence of the default of the respondent.
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Om Prakash Gupta Vs. The State Of Uttar Pradesh | added contractual term that the rules are to be observed is at once too artificial and too far-reaching to commend itself for acceptance. The rules are manifold in number and most minute in particularity, and are all capable of change......................... ..................... .....Inconvenience is not a final consideration in a matter of construction, but it is at least worthy of consideration, and it can hardly be doubted that the suggested procedure of control by the courts over Government in the most detailed work of managing its services would cause not merely inconvenience but confusion"12. In the Courts below the principal question for consideration was whether the appellant could recover arrears of salary having been illegally dismissed. It was not pleaded that the order of suspension was valid and during the period it was in force the appellant could not recover arrears of salary and no specific issue was framed in this respect. If the decision of this Court in Abdul Majids case (A) had been available to the Courts below, they would have held that the appellant was entitled to recover arrears of salary when he had been illegally dismissed and they would have had further to decide whether the order of suspension was valid and during the period it was in force the appellant could recover arrears of salary.On the additional written statement filed by the respondent in this Court, the submissions of the Advocate for the appellant and the Attorney-General would require examination and it might have been necessary to consider whether the case should not be remanded to the Court of trial. It is unnecessary, however, to record a decision on these submissions having regard to the attitude adopted by the Advocate for the appellant. He objected to the case being remanded as such a course would involve the appellant in heavy expenditure and harassment.The appellant preferred to give up his claim for arrears of salary less subsistence allowance paid to him from the date of the order of suspension until the date of the order of dismissal. He, however, contended that the order of suspension continued to be in force only until 25- 11-1944, the date of the order of dismissal. On that date the order of suspension cased to exist and the appellant was entitled to recover arrears of salary from 25-11-1944 to 31-12-1947, inclusive.The Attorney-General strongly contended that it continued to be in force and that it was not at all affected by the declaration of the Civil Judge that the order of dismissal was illegal. In view of that decision the order of dismissal must be regarded as a nullity and non-existent in the eye of law. The inquiry, the outcome of which was the order of dismissal, had not therefore ended. It could only end with a valid order which would replace the order of suspension. Until that happened the accusation against the appellant remained and the inquiry had not ended.He referred to the case of - Gopalkrishna Naidu v. State of Madhya Pradesh, AIR 1952 Nag 170 (D). On behalf of the appellant reliance was placed on the case of - Provincial Govt., C. P. and Berar v. Shamshul Hussain, AIR 1949 Nag 118 (E).The order of suspension made against the appellant was clearly one made pending an inquiry. It certainly was not a penalty imposed after an enquiry. As the result of the inquiry an order of dismissal by way of penalty had been passed against the appellant.With that order, the order of suspension lapsed. The order of dismissal replaced the order of suspension which then ceased to exist. That clearly was the position between the Government of the United Provinces and the appellant. The subsequent declaration by a Civil Court that the order of dismissal was illegal could not revive an order of suspension which did not exist.The case referred to by the Attorney-General is not directly in point and that decision does not conflict with the case relied upon by the appellant. The appellant is, therefore, entitled to recover arrears of salary from 25-11-1944, to 31-12-1947.13. The appeal is accordingly allowed in part with costs throughout and the decree of the Courts below is set aside. The plaintiffs suit is decreed for arrears of salary from 25-11-1944 to 31-12-1947, inclusive. The appellant had claimed Rs. 16,810-8-0 less subsistence allowance already drawn as arrears of pay front 24-8-1944 to 31-12-1947. As his claim for arrears of salary from 24-8-1944 to 25-11-1944, is given up, the total salary payable to him during this period less subsistence allowance already drawn, must be deducted from the sum of Rs. 16,810-8-0.The judgment of the High Court as well as the additional written statement filed by the respondent in this Court show that subsequent to the decree passed by the Civil Judge the appellant was treated as under suspension until he was dismissed by a fresh order of dismissal and that he has been paid subsistence allowance for the entire period. Such subsistence allowance as has been paid to the appellant from 25-11-1944, to 31-12-1947, inclusive, must, therefore, be credited to the respondent and the same must be adjusted against the salary claimed by the appellant. A decree will accordingly be prepared stating the amount recoverable, by the appellant.14. The appellant was permitted to appeal in forma pauperis. As he has succeeded in the appeal, the Registrar shall calculate the amount of court-fee which would have been paid by the appellant if he had not been allowed to appeal as a pauper and incorporate it in the decree. The court-fee shall be payable by the appellant but the Union Government will recover it from the Uttar Pradesh Government who will adjust the sum paid against the total amount payable under the decree.15. It will be a first charge on the amount decreed to the appellant. Under R. 7 of O. 14 of the Rules of this Court the appellant will be allowed the fees paid by him to his Advocates in the taxation of costs. | 1[ds]6.It may be stated at once that in view of the decision of this Court inState of Bihar v. Abdul Majid, AIR 1954 SC 245 (A) there can be no question now that the appellant had the right to institute a suit for recovery of arrears of salary as he was dismissed illegally.It is unnecessary, therefore, to refer to the elaborate discussion of the law in this respect to be found in the judgment of the learned Judges of the High Court.So far as the payment of excessis concerned, the learned Advocate for the appellant did not urge this point in his opening argument but urged it in reply after thehad concluded his argument. Apart from the question as to whether the Advocate can be allowed to urge a point like this in reply when no submission had been made by him in his opening, it seems there is no merit in the submission made by the Advocate. Thehad been paid on Rs. 1,20,000/which was claimed as damages.At the time the suit was instituted the law as then understood permitted such a claim to be made. The decision of the Privy Council, however, made it clear that no such claim could be made and all that a Government servant could ask for was a declaration that the order of dismissal was illegal and that he still continued to be a member of the Civil service.The decision of the Privy Council clarifying the position could not be a ground for refund ofwhen at the time it was paid it was in accordance with the law as then understood.Indeed the appellant did not appeal or file an application against the order of the Civil Judge refusing to pass an order of refund.In the High Court he did not ask for this relief on the basis of any statutory provision.He invoked the inherent powers of the High Court. TheAct contains certain provisions for refund ofpaid by a party but admittedly the present case is not covered by any of those provisions.It seems, therefore, that the High Court in the circumstances of the present case rightly refused to order a refund of the excesspaid by the appellant. It also does not appear that the Civil Judge acted illegally in refusing to order a refund.9. On the additional written statement filed in this Court by the respondent a question has arisen whether the order of suspension was valid and during the period it was in force the appellant could recover arrears ofwas, therefore, inherent power in the Crown and its representative to pass an order of suspension against the appellant pending an inquiry. The Classification Rules and Fundamental Rules were merely directions for general guidance and they did not constitute a contract between the Crown and its servants.For this proposition he referred to the observations of Lord Hobhouse in the case ofv. Smith, 1895 A. C. 229. He also relied upon the following observations of Lord Roche in the case ofVenkata Rao v. Secretary of State, AIR 1937 P.C. 31was not pleaded that the order of suspension was valid and during the period it was in force the appellant could not recover arrears of salary and no specific issue was framed in this respect. If the decision of this Court in Abdul Majids case (A) had been available to the Courts below, they would have held that the appellant was entitled to recover arrears of salary when he had been illegally dismissed and they would have had further to decide whether the order of suspension was valid and during the period it was in force the appellant could recover arrears ofview of that decision the order of dismissal must be regarded as a nullity andin the eye of law. The inquiry, the outcome of which was the order of dismissal, had not therefore ended. It could only end with a valid order which would replace the order of suspension. Until that happened the accusation against the appellant remained and the inquiry had not ended.He referred to the case ofGopalkrishna Naidu v. State of Madhya Pradesh, AIR 1952 Nag 170 (D). On behalf of the appellant reliance was placed on the case ofProvincial Govt., C. P. and Berar v. Shamshul Hussain, AIR 1949 Nag 118 (E).The order of suspension made against the appellant was clearly one made pending an inquiry. It certainly was not a penalty imposed after an enquiry. As the result of the inquiry an order of dismissal by way of penalty had been passed against the appellant.With that order, the order of suspension lapsed. The order of dismissal replaced the order of suspension which then ceased to exist. That clearly was the position between the Government of the United Provinces and the appellant. The subsequent declaration by a Civil Court that the order of dismissal was illegal could not revive an order of suspension which did not exist.The case referred to by theis not directly in point and that decision does not conflict with the case relied upon by the appellant. The appellant is, therefore, entitled to recover arrears of salary from3. The appeal is accordingly allowed in part with costs throughout and the decree of the Courts below is set aside. The plaintiffs suit is decreed for arrears of salary from7, inclusive. The appellant had claimed Rs.less subsistence allowance already drawn as arrears of pay front7. As his claim for arrears of salary from4, is given up, the total salary payable to him during this period less subsistence allowance already drawn, must be deducted from the sum of Rs.judgment of the High Court as well as the additional written statement filed by the respondent in this Court show that subsequent to the decree passed by the Civil Judge the appellant was treated as under suspension until he was dismissed by a fresh order of dismissal and that he has been paid subsistence allowance for the entire period. Such subsistence allowance as has been paid to the appellant from7, inclusive, must, therefore, be credited to the respondent and the same must be adjusted against the salary claimed by the appellant. A decree will accordingly be prepared stating the amount recoverable, by the appellant.14. The appellant was permitted to appeal in forma pauperis. As he has succeeded in the appeal, the Registrar shall calculate the amount ofwhich would have been paid by the appellant if he had not been allowed to appeal as a pauper and incorporate it in the decree. Theshall be payable by the appellant but the Union Government will recover it from the Uttar Pradesh Government who will adjust the sum paid against the total amount payable under the decree.15. It will be a first charge on the amount decreed to the appellant. Under R. 7 of O. 14 of the Rules of this Court the appellant will be allowed the fees paid by him to his Advocates in the taxation of costs. | 1 | 3,428 | 1,232 | ### 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:
added contractual term that the rules are to be observed is at once too artificial and too far-reaching to commend itself for acceptance. The rules are manifold in number and most minute in particularity, and are all capable of change......................... ..................... .....Inconvenience is not a final consideration in a matter of construction, but it is at least worthy of consideration, and it can hardly be doubted that the suggested procedure of control by the courts over Government in the most detailed work of managing its services would cause not merely inconvenience but confusion"12. In the Courts below the principal question for consideration was whether the appellant could recover arrears of salary having been illegally dismissed. It was not pleaded that the order of suspension was valid and during the period it was in force the appellant could not recover arrears of salary and no specific issue was framed in this respect. If the decision of this Court in Abdul Majids case (A) had been available to the Courts below, they would have held that the appellant was entitled to recover arrears of salary when he had been illegally dismissed and they would have had further to decide whether the order of suspension was valid and during the period it was in force the appellant could recover arrears of salary.On the additional written statement filed by the respondent in this Court, the submissions of the Advocate for the appellant and the Attorney-General would require examination and it might have been necessary to consider whether the case should not be remanded to the Court of trial. It is unnecessary, however, to record a decision on these submissions having regard to the attitude adopted by the Advocate for the appellant. He objected to the case being remanded as such a course would involve the appellant in heavy expenditure and harassment.The appellant preferred to give up his claim for arrears of salary less subsistence allowance paid to him from the date of the order of suspension until the date of the order of dismissal. He, however, contended that the order of suspension continued to be in force only until 25- 11-1944, the date of the order of dismissal. On that date the order of suspension cased to exist and the appellant was entitled to recover arrears of salary from 25-11-1944 to 31-12-1947, inclusive.The Attorney-General strongly contended that it continued to be in force and that it was not at all affected by the declaration of the Civil Judge that the order of dismissal was illegal. In view of that decision the order of dismissal must be regarded as a nullity and non-existent in the eye of law. The inquiry, the outcome of which was the order of dismissal, had not therefore ended. It could only end with a valid order which would replace the order of suspension. Until that happened the accusation against the appellant remained and the inquiry had not ended.He referred to the case of - Gopalkrishna Naidu v. State of Madhya Pradesh, AIR 1952 Nag 170 (D). On behalf of the appellant reliance was placed on the case of - Provincial Govt., C. P. and Berar v. Shamshul Hussain, AIR 1949 Nag 118 (E).The order of suspension made against the appellant was clearly one made pending an inquiry. It certainly was not a penalty imposed after an enquiry. As the result of the inquiry an order of dismissal by way of penalty had been passed against the appellant.With that order, the order of suspension lapsed. The order of dismissal replaced the order of suspension which then ceased to exist. That clearly was the position between the Government of the United Provinces and the appellant. The subsequent declaration by a Civil Court that the order of dismissal was illegal could not revive an order of suspension which did not exist.The case referred to by the Attorney-General is not directly in point and that decision does not conflict with the case relied upon by the appellant. The appellant is, therefore, entitled to recover arrears of salary from 25-11-1944, to 31-12-1947.13. The appeal is accordingly allowed in part with costs throughout and the decree of the Courts below is set aside. The plaintiffs suit is decreed for arrears of salary from 25-11-1944 to 31-12-1947, inclusive. The appellant had claimed Rs. 16,810-8-0 less subsistence allowance already drawn as arrears of pay front 24-8-1944 to 31-12-1947. As his claim for arrears of salary from 24-8-1944 to 25-11-1944, is given up, the total salary payable to him during this period less subsistence allowance already drawn, must be deducted from the sum of Rs. 16,810-8-0.The judgment of the High Court as well as the additional written statement filed by the respondent in this Court show that subsequent to the decree passed by the Civil Judge the appellant was treated as under suspension until he was dismissed by a fresh order of dismissal and that he has been paid subsistence allowance for the entire period. Such subsistence allowance as has been paid to the appellant from 25-11-1944, to 31-12-1947, inclusive, must, therefore, be credited to the respondent and the same must be adjusted against the salary claimed by the appellant. A decree will accordingly be prepared stating the amount recoverable, by the appellant.14. The appellant was permitted to appeal in forma pauperis. As he has succeeded in the appeal, the Registrar shall calculate the amount of court-fee which would have been paid by the appellant if he had not been allowed to appeal as a pauper and incorporate it in the decree. The court-fee shall be payable by the appellant but the Union Government will recover it from the Uttar Pradesh Government who will adjust the sum paid against the total amount payable under the decree.15. It will be a first charge on the amount decreed to the appellant. Under R. 7 of O. 14 of the Rules of this Court the appellant will be allowed the fees paid by him to his Advocates in the taxation of costs.
### Response:
1
### Explanation:
the submission made by the Advocate. Thehad been paid on Rs. 1,20,000/which was claimed as damages.At the time the suit was instituted the law as then understood permitted such a claim to be made. The decision of the Privy Council, however, made it clear that no such claim could be made and all that a Government servant could ask for was a declaration that the order of dismissal was illegal and that he still continued to be a member of the Civil service.The decision of the Privy Council clarifying the position could not be a ground for refund ofwhen at the time it was paid it was in accordance with the law as then understood.Indeed the appellant did not appeal or file an application against the order of the Civil Judge refusing to pass an order of refund.In the High Court he did not ask for this relief on the basis of any statutory provision.He invoked the inherent powers of the High Court. TheAct contains certain provisions for refund ofpaid by a party but admittedly the present case is not covered by any of those provisions.It seems, therefore, that the High Court in the circumstances of the present case rightly refused to order a refund of the excesspaid by the appellant. It also does not appear that the Civil Judge acted illegally in refusing to order a refund.9. On the additional written statement filed in this Court by the respondent a question has arisen whether the order of suspension was valid and during the period it was in force the appellant could recover arrears ofwas, therefore, inherent power in the Crown and its representative to pass an order of suspension against the appellant pending an inquiry. The Classification Rules and Fundamental Rules were merely directions for general guidance and they did not constitute a contract between the Crown and its servants.For this proposition he referred to the observations of Lord Hobhouse in the case ofv. Smith, 1895 A. C. 229. He also relied upon the following observations of Lord Roche in the case ofVenkata Rao v. Secretary of State, AIR 1937 P.C. 31was not pleaded that the order of suspension was valid and during the period it was in force the appellant could not recover arrears of salary and no specific issue was framed in this respect. If the decision of this Court in Abdul Majids case (A) had been available to the Courts below, they would have held that the appellant was entitled to recover arrears of salary when he had been illegally dismissed and they would have had further to decide whether the order of suspension was valid and during the period it was in force the appellant could recover arrears ofview of that decision the order of dismissal must be regarded as a nullity andin the eye of law. The inquiry, the outcome of which was the order of dismissal, had not therefore ended. It could only end with a valid order which would replace the order of suspension. Until that happened the accusation against the appellant remained and the inquiry had not ended.He referred to the case ofGopalkrishna Naidu v. State of Madhya Pradesh, AIR 1952 Nag 170 (D). On behalf of the appellant reliance was placed on the case ofProvincial Govt., C. P. and Berar v. Shamshul Hussain, AIR 1949 Nag 118 (E).The order of suspension made against the appellant was clearly one made pending an inquiry. It certainly was not a penalty imposed after an enquiry. As the result of the inquiry an order of dismissal by way of penalty had been passed against the appellant.With that order, the order of suspension lapsed. The order of dismissal replaced the order of suspension which then ceased to exist. That clearly was the position between the Government of the United Provinces and the appellant. The subsequent declaration by a Civil Court that the order of dismissal was illegal could not revive an order of suspension which did not exist.The case referred to by theis not directly in point and that decision does not conflict with the case relied upon by the appellant. The appellant is, therefore, entitled to recover arrears of salary from3. The appeal is accordingly allowed in part with costs throughout and the decree of the Courts below is set aside. The plaintiffs suit is decreed for arrears of salary from7, inclusive. The appellant had claimed Rs.less subsistence allowance already drawn as arrears of pay front7. As his claim for arrears of salary from4, is given up, the total salary payable to him during this period less subsistence allowance already drawn, must be deducted from the sum of Rs.judgment of the High Court as well as the additional written statement filed by the respondent in this Court show that subsequent to the decree passed by the Civil Judge the appellant was treated as under suspension until he was dismissed by a fresh order of dismissal and that he has been paid subsistence allowance for the entire period. Such subsistence allowance as has been paid to the appellant from7, inclusive, must, therefore, be credited to the respondent and the same must be adjusted against the salary claimed by the appellant. A decree will accordingly be prepared stating the amount recoverable, by the appellant.14. The appellant was permitted to appeal in forma pauperis. As he has succeeded in the appeal, the Registrar shall calculate the amount ofwhich would have been paid by the appellant if he had not been allowed to appeal as a pauper and incorporate it in the decree. Theshall be payable by the appellant but the Union Government will recover it from the Uttar Pradesh Government who will adjust the sum paid against the total amount payable under the decree.15. It will be a first charge on the amount decreed to the appellant. Under R. 7 of O. 14 of the Rules of this Court the appellant will be allowed the fees paid by him to his Advocates in the taxation of costs.
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Ajmer Singh Cotton and General Mills Vs. Branch Manager, United India Insurance Company Limited | The State Commission accepted the plea of the insurance companies and relying upon the order passed by this Commission in (Jiyajeerao Cotton Mills Ltd. v. New India Assurance Co. Ltd.) (1992) I. C. P. J. 292 (N. C.), declined to exercise its jurisdiction and dismissed the complaint with the observation that whatever has been said in the order would not come in the way of the complainant in subsequent proceedings which the complainant might be advised to initiate against the insurers and it would not adversely or prejudicially affect them. ( 5 ) AGGRIEVED against the dismissal of its complaint by the State Commission, the firm has come before this Commission in an appeal.( 6 ) IT was urged on behalf of the opposite parties that the amounts for which receipts admittedly have been signed by the complainant have been received by them in full and final discharge of their claims and, therefore, this appeal is liable to be dismissed on that very ground. As noticed earlier, that ground prevailed with the State Commission and reliance was placed upon the aforementioned order of this Commission. Before we proceed further, we may mention here that in Jiyajeeraos case, (1992)I C. P. J. 292 (N. C.), the complainant had challenged certain deductions made by the insurance company while settling his claim and according to the claimant of that case, those deductions were illegal. The receipt passed by the insured to the insurance company in full and final settlement of his claim did not indicate that the payment was received by the claimant under protest. There was no allegation that the claim was settled after delay. Upon those facts this Commission observed in the order passed in that case:"the records disclose that the insurance company had settled the claim long ago and that the dispute now is as to whether the deduction of certain amounts by the insurance company while settling the claim was proper in law. This is a matter in respect of which the petitioner should seek his redress before a Civil Court inasmuch as there has been no deficiency in service on the part of the insurance company. The receipt passed to insurance company by the petitioner does not indicate that the payment was received by the petitioner under protest. It is, however, alleged by the petitioner that the amount was received by the company under protest. This is a matter which the petitioner company may agitate before the Civil Court for a proper adjudication after taking evidence. "it is to be noticed that in the present case the claimant is not making any grievance about the amount paid under the claims lodged under the policies. It is also not its case that the receipts were got executed by fraud or undue influence. Its grievance is that the insurance companies have been negligent in the rendering of services. ( 7 ) IT is not disputed that the service of insurance falls within the ambit of the Act. Deficiency in the rendering of service has been defined under the Act in section 2 (1) (g) as follows :" `deficieny means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. "therefore, if the insurance companies in question committed deficiency in the rendering of service, then they certainly fall under the purview of the Act.( 8 ) WE are of the opinion that after the report of surveyor had been received, the insurance companies should not have taken such a long time in ascertaining if the policies had been ante-dated or in scrutinising the materials. The insurance companies should have realised that the firm carries on its business after borrowing money from the bank and has to pay interest on such borrowings and that the bank fixes a limit while allowing the credit facilities. In the present case, as noticed earlier, the complainant is enjoying the credit facility of Rs. 12,00,000/- while the loss due to fire was more than Rs. 15,00,000/ -. Therefore, when the insurance companies have taken so much time in making payments after the receipt of the surveyors report, it will amount to deficiency in service. It is further to be noted that one of the opposite parties made the payment on 22nd March, 1991, while the other opposite party made the payment on 6th June, 1991. Two months time can be taken as reasonable time even for the scrutinising of the report of the surveyor. It is not the case of the insurance companies that after the surveyor had submitted its report, any of the insurance companies required any further information from the insured. ( 9 ) AS noticed earlier, the claimant has, of course, given full and final discharge receipts of the claims. The discharge can only be considered under the polices but the present claim does not arise under the insurance policies and, therefore, it is difficult to hold that the full and final discharge receipts issued by the complainant would cover the present claim under the Act also. ( 10 ) IT is also to be noted that in the present case no question of fact requires determination as none is disputed. The claim is based solely on the question of delay in the settlement of the claims under the policies. The dates of payments made under the claims after the receipt of the surveyors report are also not in dispute. Hence it will be unnecessary to ask the firm to go to Civil Court for the settlement of its claim. It is also doubtful if the claim of the present nature can be entertained by the Civil Court. The remedy about compensation for negligence in the rendering of service towards the hirer of services has been provided under the Act. | 1[ds]( 8 ) WE are of the opinion that after the report of surveyor had been received, the insurance companies should not have taken such a long time in ascertaining if the policies had beenor in scrutinising the materials. The insurance companies should have realised that the firm carries on its business after borrowing money from the bank and has to pay interest on such borrowings and that the bank fixes a limit while allowing the credit facilities. In the present case, as noticed earlier, the complainant is enjoying the credit facility of Rs. 12,00,000/while the loss due to fire was more than Rs.. Therefore, when the insurance companies have taken so much time in making payments after the receipt of the surveyors report, it will amount to deficiency in service. It is further to be noted that one of the opposite parties made the payment on 22nd March, 1991, while the other opposite party made the payment on 6th June, 1991. Two months time can be taken as reasonable time even for the scrutinising of the report of the surveyor. It is not the case of the insurance companies that after the surveyor had submitted its report, any of the insurance companies required any further information from the9 ) AS noticed earlier, the claimant has, of course, given full and final discharge receipts of the claims. The discharge can only be considered under the polices but the present claim does not arise under the insurance policies and, therefore, it is difficult to hold that the full and final discharge receipts issued by the complainant would cover the present claim under the Act10 ) IT is also to be noted that in the present case no question of fact requires determination as none is disputed. The claim is based solely on the question of delay in the settlement of the claims under the policies. The dates of payments made under the claims after the receipt of the surveyors report are also not in dispute. Hence it will be unnecessary to ask the firm to go to Civil Court for the settlement of its claim. It is also doubtful if the claim of the present nature can be entertained by the Civil Court. The remedy about compensation for negligence in the rendering of service towards the hirer of services has been provided under the Act. | 1 | 1,814 | 426 | ### Instruction:
Hypothesize the court's verdict (affirmation (1) or negation (0) of the appeal), and then clarify this hypothesis by interpreting significant sentences from the case proceeding.
### Input:
The State Commission accepted the plea of the insurance companies and relying upon the order passed by this Commission in (Jiyajeerao Cotton Mills Ltd. v. New India Assurance Co. Ltd.) (1992) I. C. P. J. 292 (N. C.), declined to exercise its jurisdiction and dismissed the complaint with the observation that whatever has been said in the order would not come in the way of the complainant in subsequent proceedings which the complainant might be advised to initiate against the insurers and it would not adversely or prejudicially affect them. ( 5 ) AGGRIEVED against the dismissal of its complaint by the State Commission, the firm has come before this Commission in an appeal.( 6 ) IT was urged on behalf of the opposite parties that the amounts for which receipts admittedly have been signed by the complainant have been received by them in full and final discharge of their claims and, therefore, this appeal is liable to be dismissed on that very ground. As noticed earlier, that ground prevailed with the State Commission and reliance was placed upon the aforementioned order of this Commission. Before we proceed further, we may mention here that in Jiyajeeraos case, (1992)I C. P. J. 292 (N. C.), the complainant had challenged certain deductions made by the insurance company while settling his claim and according to the claimant of that case, those deductions were illegal. The receipt passed by the insured to the insurance company in full and final settlement of his claim did not indicate that the payment was received by the claimant under protest. There was no allegation that the claim was settled after delay. Upon those facts this Commission observed in the order passed in that case:"the records disclose that the insurance company had settled the claim long ago and that the dispute now is as to whether the deduction of certain amounts by the insurance company while settling the claim was proper in law. This is a matter in respect of which the petitioner should seek his redress before a Civil Court inasmuch as there has been no deficiency in service on the part of the insurance company. The receipt passed to insurance company by the petitioner does not indicate that the payment was received by the petitioner under protest. It is, however, alleged by the petitioner that the amount was received by the company under protest. This is a matter which the petitioner company may agitate before the Civil Court for a proper adjudication after taking evidence. "it is to be noticed that in the present case the claimant is not making any grievance about the amount paid under the claims lodged under the policies. It is also not its case that the receipts were got executed by fraud or undue influence. Its grievance is that the insurance companies have been negligent in the rendering of services. ( 7 ) IT is not disputed that the service of insurance falls within the ambit of the Act. Deficiency in the rendering of service has been defined under the Act in section 2 (1) (g) as follows :" `deficieny means any fault, imperfection, shortcoming or inadequacy in the quality, nature and manner of performance which is required to be maintained by or under any law for the time being in force or has been undertaken to be performed by a person in pursuance of a contract or otherwise in relation to any service. "therefore, if the insurance companies in question committed deficiency in the rendering of service, then they certainly fall under the purview of the Act.( 8 ) WE are of the opinion that after the report of surveyor had been received, the insurance companies should not have taken such a long time in ascertaining if the policies had been ante-dated or in scrutinising the materials. The insurance companies should have realised that the firm carries on its business after borrowing money from the bank and has to pay interest on such borrowings and that the bank fixes a limit while allowing the credit facilities. In the present case, as noticed earlier, the complainant is enjoying the credit facility of Rs. 12,00,000/- while the loss due to fire was more than Rs. 15,00,000/ -. Therefore, when the insurance companies have taken so much time in making payments after the receipt of the surveyors report, it will amount to deficiency in service. It is further to be noted that one of the opposite parties made the payment on 22nd March, 1991, while the other opposite party made the payment on 6th June, 1991. Two months time can be taken as reasonable time even for the scrutinising of the report of the surveyor. It is not the case of the insurance companies that after the surveyor had submitted its report, any of the insurance companies required any further information from the insured. ( 9 ) AS noticed earlier, the claimant has, of course, given full and final discharge receipts of the claims. The discharge can only be considered under the polices but the present claim does not arise under the insurance policies and, therefore, it is difficult to hold that the full and final discharge receipts issued by the complainant would cover the present claim under the Act also. ( 10 ) IT is also to be noted that in the present case no question of fact requires determination as none is disputed. The claim is based solely on the question of delay in the settlement of the claims under the policies. The dates of payments made under the claims after the receipt of the surveyors report are also not in dispute. Hence it will be unnecessary to ask the firm to go to Civil Court for the settlement of its claim. It is also doubtful if the claim of the present nature can be entertained by the Civil Court. The remedy about compensation for negligence in the rendering of service towards the hirer of services has been provided under the Act.
### Response:
1
### Explanation:
( 8 ) WE are of the opinion that after the report of surveyor had been received, the insurance companies should not have taken such a long time in ascertaining if the policies had beenor in scrutinising the materials. The insurance companies should have realised that the firm carries on its business after borrowing money from the bank and has to pay interest on such borrowings and that the bank fixes a limit while allowing the credit facilities. In the present case, as noticed earlier, the complainant is enjoying the credit facility of Rs. 12,00,000/while the loss due to fire was more than Rs.. Therefore, when the insurance companies have taken so much time in making payments after the receipt of the surveyors report, it will amount to deficiency in service. It is further to be noted that one of the opposite parties made the payment on 22nd March, 1991, while the other opposite party made the payment on 6th June, 1991. Two months time can be taken as reasonable time even for the scrutinising of the report of the surveyor. It is not the case of the insurance companies that after the surveyor had submitted its report, any of the insurance companies required any further information from the9 ) AS noticed earlier, the claimant has, of course, given full and final discharge receipts of the claims. The discharge can only be considered under the polices but the present claim does not arise under the insurance policies and, therefore, it is difficult to hold that the full and final discharge receipts issued by the complainant would cover the present claim under the Act10 ) IT is also to be noted that in the present case no question of fact requires determination as none is disputed. The claim is based solely on the question of delay in the settlement of the claims under the policies. The dates of payments made under the claims after the receipt of the surveyors report are also not in dispute. Hence it will be unnecessary to ask the firm to go to Civil Court for the settlement of its claim. It is also doubtful if the claim of the present nature can be entertained by the Civil Court. The remedy about compensation for negligence in the rendering of service towards the hirer of services has been provided under the Act.
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I.P. Holding Asia Singapore P. Ltd. & Another Vs. Securities & Exchange Board of India | of the shares was not in conformity with Regulation 20(5) of the Takeover Code. (5) Where the shares of the target company are infrequently traded, the offer price shall be determined by the acquirer and the merchant banker taking into account the following factors:(a) the negotiated price under the agreement referred to in sub-regulation (1) of regulation 14;(b) the highest price paid by the acquirer or persons acting in concert with him for acquisitions, if any, including by way of allotment in a public or rights or preferential issue during the twenty-six week period prior to the date of public announcement;(c) other parameters including return on net worth, book value of the shares of the target company, earning per share, price earning multiple vis-a-vis the industry average :Provided that where considered necessary, the Board may require valuation of such infrequently traded shares by an independent merchant banker (other than the manager to the offer) or an independent chartered accountant of minimum ten years` standing or a public financial institution.Explanation.--(i) For the purpose of sub-regulation (5), shares shall be deemed to be infrequently traded if on the stock exchange, the annualised trading turnover in that share during the preceding six calendar months prior to the month in which the public announcement is made is less than five per cent (by number of shares) of the listed shares. For this purpose, the weighted average number of shares listed during the said six months period may be taken.(ii) In case of disinvestment of a Public Sector Undertaking, the shares of such an undertaking shall be deemed to be infrequently traded, if on the stock exchange, the annualised trading turnover in the shares during the preceding six calendar months prior to the month, in which the Central Government or the State Government as the case may be opens the financial bid, is less than five per cent (by the number of shares) of the listed shares. For this purpose, the weighted average number of shares listed during the six months period may be taken.(iii) In case of shares which have been listed within six months preceding the public announcement, the trading turnover may be annualised with reference to the actual number of days for which the shares have been listed. 42. The second fundamental error by SEBI was in splitting the non-compete agreement between the appellants and 5 members of the Bangur group on the one hand and 15 members of the Bangur group on the other. If the non-compete agreement was a sham as held by the Tribunal, then the entire agreement would have to be held as a sham and the entire transaction would require to be held as a sham transaction. It cannot be, on a reading of the non-compete agreement as a whole, that a part of it is a sham in respect of some of the contracting parties and it is a genuine agreement in respect of the other contracting parties. There is absolutely no indication given in the non-compete agreement that it is severable or that there was any intention to split it into two or more distinct parts.43. The absurdity resulting in splitting-up the non-compete agreement can be better appreciated from a hypothetical example. What if the Tribunal had partially agreed with the appellants and held that the non-compete agreement was valid in respect of say ten or twelve of the promoter entities instead of five? This could happen if the genuineness of the non-compete agreement is examined in relation to each promoter entity, as has been done by SEBI. Does it not, therefore, mean that the non-compete agreement has to be split in twenty ways to decide whether it is genuine or sham in respect of five or ten or twelve of the promoter entities? Can this be said to be a reasonable construction of the non-compete agreement? We are afraid that this surely cannot be the correct way of reading the non-compete agreement and that is why we are of the view that the Tribunal committed a fundamental flaw in holding only a part of the non-compete agreement as a sham. The Tribunal should have either held the entire non-compete agreement as a sham or it ought to have held the entire non-compete agreement as a genuine agreement. The question of a half-way house simply does not arise.44. One other minor issue was raised by SEBI, namely, that the non-individual entities did not have the business objectives of manufacturing, sale and trading of pulp and paper in their main object clause. This is only stated to be rejected since the memorandum of association of a corporate entity can always be altered in accordance with the procedure under the Companies Act, 1956.45. For completeness, we may mention two events that have occurred since the non-compete agreement was entered into on 29th March, 2011. Firstly, the non-compete period of three years has expired, in a sense rendering this exercise academic. Secondly, the Takeover Code has been repealed with effect from 23rd October, 2011 and substituted by the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011. The new Takeover Code does away with the concept of a separate non-compete fee, the amount being included in the offer price in terms of Regulation 8 thereof. Offer Price: 8.(1) The open offer for acquiring shares under regulation 3, regulation 4, regulation 5 or regulation 6 shall be made at a price not lower than the price determined in accordance with sub-regulation (2) or sub-regulation (3), as the case may be.(2) to (6) xxx xxx xxx(7) For the purposes of sub-regulation (2) and sub-regulation (3), the price paid for shares of the target company shall include any price paid or agreed to be paid for the shares or voting rights in, or control over the target company, in any form whatsoever, whether stated in the agreement for acquisition of shares or in any incidental, contemporaneous or collateral agreement, whether termed as control premium or as non-compete fees or otherwise. Conclusion | 1[ds]21. In our view, the Tribunal has made two fundamental errors. In the first place, the Tribunal committed a jurisdictional error by misunderstanding the scope of Regulation 20(8) of the Takeover Code.According to SEBI, Yogesh Bangur and Ms. Surbhi Bangur had no "experience/expertise in the area of operation of the target company and are therefore not capable of offering any competition". During the course of submissions, it was suggested that what was actually paid to them (and perhaps others) was not afee but control premium. We cannot agree.The second fundamental error by SEBI was in splitting theagreement between the appellants and 5 members of the Bangur group on the one hand and 15 members of the Bangur group on the other. If theagreement was a sham as held by the Tribunal, then the entire agreement would have to be held as a sham and the entire transaction would require to be held as a sham transaction. It cannot be, on a reading of theagreement as a whole, that a part of it is a sham in respect of some of the contracting parties and it is a genuine agreement in respect of the other contracting parties. There is absolutely no indication given in theagreement that it is severable or that there was any intention to split it into two or more distinct parts.43. The absurdity resulting inte agreement can be better appreciated from a hypothetical example. What if the Tribunal had partially agreed with the appellants and held that theagreement was valid in respect of say ten or twelve of the promoter entities instead of five? This could happen if the genuineness of theagreement is examined in relation to each promoter entity, as has been done by SEBI. Does it not, therefore, mean that theagreement has to be split in twenty ways to decide whether it is genuine or sham in respect of five or ten or twelve of the promoter entities? Can this be said to be a reasonable construction of theagreement? We are afraid that this surely cannot be the correct way of reading theagreement and that is why we are of the view that the Tribunal committed a fundamental flaw in holding only a part of theagreement as a sham. The Tribunal should have either held the entireagreement as a sham or it ought to have held the entireagreement as a genuine agreement. The question of ahouse simply does not arise.44. One other minor issue was raised by SEBI, namely, that theentities did not have the business objectives of manufacturing, sale and trading of pulp and paper in their main object clause. This is only stated to be rejected since the memorandum of association of a corporate entity can always be altered in accordance with the procedure under the Companies Act, 1956.45. For completeness, we may mention two events that have occurred since theagreement was entered into on 29th March, 2011. Firstly, theperiod of three years has expired, in a sense rendering this exercise academic. Secondly, the Takeover Code has been repealed with effect from 23rd October, 2011 and substituted by the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations,We say this because it is imperative to give sufficient elbow room to commercial entities for entering into a business transaction. There are a host of considerations that go into business relations and transactions between different entities. This applies, perhaps more equally, to the takeover of a target company by another corporate body.From this it is quite clear that ordinarily when there is a gap of 25% between the consideration paid to the outgoing promoters and thefee, SEBI ought not to conduct any inquiry. However, this cannot be treated an absolute proposition and we are quite willing to say that if it appears ex facie, without any searching questions being asked or any intricate reasoning, that it appears to SEBI that the difference between the offer price and thefee is less than 25% but that is nevertheless a disguise or a camouflage for reducing the cost of acquisition through a public offer, then SEBI can certainly delve further into the matter.27. In so far as the present case is concerned, on an ex facie reading of the share purchase agreement and theagreement between the appellants and the promoter entities, no such conclusion is apparent, nor was it canvassed or pointed out. In our opinion therefore, there was no occasion for SEBI to carry out a searching enquiry into the payment offee to the Bangur group.28. Assuming for the sake of argument that an inquiry into the payment offee is permissible, where does it lead us in this appeal?29.According to SEBI, Yogesh Bangur and Ms. Surbhi Bangur had no "experience/expertise in the area of operation of the target company and are therefore not capable of offering any competition". During the course of submissions, it was suggested that what was actually paid to them (and perhaps others) was not ae but control premium. We cannot agree.But what is more important is the perception of the appellants. On these facts, the appellants perceived a threat from these individuals to their business activities. It is not the case of SEBI that the threat perception was irrationalit may arguably be unfounded or minimal but is certainly not beyond the imagination of a reasonable person. The threat perception cannot be decided on the basis of the hindsight of SEBI (unless the perception is found to be perverse) but must be left to the commercial wisdom of the players on the field.33. In support of its contention that the threat perception from Yogesh Bangur and Ms. Surbhi Bangur was entirely imaginary, it was (negatively) submitted that Ms. Sheetal Bangur was a director in the target company and was actually involved in its day to day activities, and yet afee was not paid to her. Was it because she was not a shareholder in the target holder (as suggested) or was it because she really posed no competitive threat? Or, was there some other valid reason?34. At this stage, it is necessary to appreciate the shareholding pattern of the Bangur group in the target company.35. Of the 53.46% fully paid up shares held by the Bangur group in the target company, Digvijay Investments Ltd. (DIL) held 24.70% while the Maharaja Shree Umaid Mills Limited (MSUML) held 21.65%. The remaining about 7% shares were held by the other members of the Bangur group. This included Samay Books Ltd. (Samay0.10%), the General Investment Company Ltd. (GICL0.57%).36. Ms. Sheetal Bangur held 78.96% of the shares in Apurva, 2.60% of the shares in GICL and 92.19% of the shares in Samay. Through these entities, she held shares in DIL and MSUML. Therefore, although she did not directly hold any shares in the target company, she did so indirectly. Theof shares between the various members of the Bangur group and through them in the target company is being mentioned only to point out that the shareholding pattern was not as simple as made out during the course of oral submissions by learned counsels. Looking to the intricacies and complexities involved, it is possible that the shareholding pattern was considered by the appellants and the Bangur group while indirectly giving afee to Ms. Sheetal Bangur. It could have been in the mind of the appellants that Ms. Sheetal Bangur was indirectly getting an adequate amount offee, and therefore it was not advisable to also directly give her anyfee.37. This possibility cannot be straightaway ruled out since even SEBI did not raise any issue in this regard in its comments given on 3rd August, 2011. The regulatory authority not having raised this issue, it is quite clear that it was raised for the first time only as a legal argument when the matter was taken up by the Tribunal. The justification for this, it is submitted before us, is based on the provisions of Order XLI Rule 33 of the Code of Civil Procedure as well as two judgments referred to by learned counsel for SEBI. | 1 | 6,611 | 1,488 | ### 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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of the shares was not in conformity with Regulation 20(5) of the Takeover Code. (5) Where the shares of the target company are infrequently traded, the offer price shall be determined by the acquirer and the merchant banker taking into account the following factors:(a) the negotiated price under the agreement referred to in sub-regulation (1) of regulation 14;(b) the highest price paid by the acquirer or persons acting in concert with him for acquisitions, if any, including by way of allotment in a public or rights or preferential issue during the twenty-six week period prior to the date of public announcement;(c) other parameters including return on net worth, book value of the shares of the target company, earning per share, price earning multiple vis-a-vis the industry average :Provided that where considered necessary, the Board may require valuation of such infrequently traded shares by an independent merchant banker (other than the manager to the offer) or an independent chartered accountant of minimum ten years` standing or a public financial institution.Explanation.--(i) For the purpose of sub-regulation (5), shares shall be deemed to be infrequently traded if on the stock exchange, the annualised trading turnover in that share during the preceding six calendar months prior to the month in which the public announcement is made is less than five per cent (by number of shares) of the listed shares. For this purpose, the weighted average number of shares listed during the said six months period may be taken.(ii) In case of disinvestment of a Public Sector Undertaking, the shares of such an undertaking shall be deemed to be infrequently traded, if on the stock exchange, the annualised trading turnover in the shares during the preceding six calendar months prior to the month, in which the Central Government or the State Government as the case may be opens the financial bid, is less than five per cent (by the number of shares) of the listed shares. For this purpose, the weighted average number of shares listed during the six months period may be taken.(iii) In case of shares which have been listed within six months preceding the public announcement, the trading turnover may be annualised with reference to the actual number of days for which the shares have been listed. 42. The second fundamental error by SEBI was in splitting the non-compete agreement between the appellants and 5 members of the Bangur group on the one hand and 15 members of the Bangur group on the other. If the non-compete agreement was a sham as held by the Tribunal, then the entire agreement would have to be held as a sham and the entire transaction would require to be held as a sham transaction. It cannot be, on a reading of the non-compete agreement as a whole, that a part of it is a sham in respect of some of the contracting parties and it is a genuine agreement in respect of the other contracting parties. There is absolutely no indication given in the non-compete agreement that it is severable or that there was any intention to split it into two or more distinct parts.43. The absurdity resulting in splitting-up the non-compete agreement can be better appreciated from a hypothetical example. What if the Tribunal had partially agreed with the appellants and held that the non-compete agreement was valid in respect of say ten or twelve of the promoter entities instead of five? This could happen if the genuineness of the non-compete agreement is examined in relation to each promoter entity, as has been done by SEBI. Does it not, therefore, mean that the non-compete agreement has to be split in twenty ways to decide whether it is genuine or sham in respect of five or ten or twelve of the promoter entities? Can this be said to be a reasonable construction of the non-compete agreement? We are afraid that this surely cannot be the correct way of reading the non-compete agreement and that is why we are of the view that the Tribunal committed a fundamental flaw in holding only a part of the non-compete agreement as a sham. The Tribunal should have either held the entire non-compete agreement as a sham or it ought to have held the entire non-compete agreement as a genuine agreement. The question of a half-way house simply does not arise.44. One other minor issue was raised by SEBI, namely, that the non-individual entities did not have the business objectives of manufacturing, sale and trading of pulp and paper in their main object clause. This is only stated to be rejected since the memorandum of association of a corporate entity can always be altered in accordance with the procedure under the Companies Act, 1956.45. For completeness, we may mention two events that have occurred since the non-compete agreement was entered into on 29th March, 2011. Firstly, the non-compete period of three years has expired, in a sense rendering this exercise academic. Secondly, the Takeover Code has been repealed with effect from 23rd October, 2011 and substituted by the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations, 2011. The new Takeover Code does away with the concept of a separate non-compete fee, the amount being included in the offer price in terms of Regulation 8 thereof. Offer Price: 8.(1) The open offer for acquiring shares under regulation 3, regulation 4, regulation 5 or regulation 6 shall be made at a price not lower than the price determined in accordance with sub-regulation (2) or sub-regulation (3), as the case may be.(2) to (6) xxx xxx xxx(7) For the purposes of sub-regulation (2) and sub-regulation (3), the price paid for shares of the target company shall include any price paid or agreed to be paid for the shares or voting rights in, or control over the target company, in any form whatsoever, whether stated in the agreement for acquisition of shares or in any incidental, contemporaneous or collateral agreement, whether termed as control premium or as non-compete fees or otherwise. Conclusion
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We are afraid that this surely cannot be the correct way of reading theagreement and that is why we are of the view that the Tribunal committed a fundamental flaw in holding only a part of theagreement as a sham. The Tribunal should have either held the entireagreement as a sham or it ought to have held the entireagreement as a genuine agreement. The question of ahouse simply does not arise.44. One other minor issue was raised by SEBI, namely, that theentities did not have the business objectives of manufacturing, sale and trading of pulp and paper in their main object clause. This is only stated to be rejected since the memorandum of association of a corporate entity can always be altered in accordance with the procedure under the Companies Act, 1956.45. For completeness, we may mention two events that have occurred since theagreement was entered into on 29th March, 2011. Firstly, theperiod of three years has expired, in a sense rendering this exercise academic. Secondly, the Takeover Code has been repealed with effect from 23rd October, 2011 and substituted by the SEBI (Substantial Acquisition of Shares and Takeovers) Regulations,We say this because it is imperative to give sufficient elbow room to commercial entities for entering into a business transaction. There are a host of considerations that go into business relations and transactions between different entities. This applies, perhaps more equally, to the takeover of a target company by another corporate body.From this it is quite clear that ordinarily when there is a gap of 25% between the consideration paid to the outgoing promoters and thefee, SEBI ought not to conduct any inquiry. However, this cannot be treated an absolute proposition and we are quite willing to say that if it appears ex facie, without any searching questions being asked or any intricate reasoning, that it appears to SEBI that the difference between the offer price and thefee is less than 25% but that is nevertheless a disguise or a camouflage for reducing the cost of acquisition through a public offer, then SEBI can certainly delve further into the matter.27. In so far as the present case is concerned, on an ex facie reading of the share purchase agreement and theagreement between the appellants and the promoter entities, no such conclusion is apparent, nor was it canvassed or pointed out. In our opinion therefore, there was no occasion for SEBI to carry out a searching enquiry into the payment offee to the Bangur group.28. Assuming for the sake of argument that an inquiry into the payment offee is permissible, where does it lead us in this appeal?29.According to SEBI, Yogesh Bangur and Ms. Surbhi Bangur had no "experience/expertise in the area of operation of the target company and are therefore not capable of offering any competition". During the course of submissions, it was suggested that what was actually paid to them (and perhaps others) was not ae but control premium. We cannot agree.But what is more important is the perception of the appellants. On these facts, the appellants perceived a threat from these individuals to their business activities. It is not the case of SEBI that the threat perception was irrationalit may arguably be unfounded or minimal but is certainly not beyond the imagination of a reasonable person. The threat perception cannot be decided on the basis of the hindsight of SEBI (unless the perception is found to be perverse) but must be left to the commercial wisdom of the players on the field.33. In support of its contention that the threat perception from Yogesh Bangur and Ms. Surbhi Bangur was entirely imaginary, it was (negatively) submitted that Ms. Sheetal Bangur was a director in the target company and was actually involved in its day to day activities, and yet afee was not paid to her. Was it because she was not a shareholder in the target holder (as suggested) or was it because she really posed no competitive threat? Or, was there some other valid reason?34. At this stage, it is necessary to appreciate the shareholding pattern of the Bangur group in the target company.35. Of the 53.46% fully paid up shares held by the Bangur group in the target company, Digvijay Investments Ltd. (DIL) held 24.70% while the Maharaja Shree Umaid Mills Limited (MSUML) held 21.65%. The remaining about 7% shares were held by the other members of the Bangur group. This included Samay Books Ltd. (Samay0.10%), the General Investment Company Ltd. (GICL0.57%).36. Ms. Sheetal Bangur held 78.96% of the shares in Apurva, 2.60% of the shares in GICL and 92.19% of the shares in Samay. Through these entities, she held shares in DIL and MSUML. Therefore, although she did not directly hold any shares in the target company, she did so indirectly. Theof shares between the various members of the Bangur group and through them in the target company is being mentioned only to point out that the shareholding pattern was not as simple as made out during the course of oral submissions by learned counsels. Looking to the intricacies and complexities involved, it is possible that the shareholding pattern was considered by the appellants and the Bangur group while indirectly giving afee to Ms. Sheetal Bangur. It could have been in the mind of the appellants that Ms. Sheetal Bangur was indirectly getting an adequate amount offee, and therefore it was not advisable to also directly give her anyfee.37. This possibility cannot be straightaway ruled out since even SEBI did not raise any issue in this regard in its comments given on 3rd August, 2011. The regulatory authority not having raised this issue, it is quite clear that it was raised for the first time only as a legal argument when the matter was taken up by the Tribunal. The justification for this, it is submitted before us, is based on the provisions of Order XLI Rule 33 of the Code of Civil Procedure as well as two judgments referred to by learned counsel for SEBI.
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Sheodhan Singh Vs. Mohan Lal Gautam | refers to printing of pamphlets like Exh. 7. Such an inference would be a far-fetched one. According to the respondent D-23 relates to pamphlets similar to Exhs. A-154 and A-155. The High Court has not accepted that contention. The basis on which the High Court rejected that contention does not appear to us to be correct. It is not necessary to go into that question as we are of opinion that there is no satisfactory evidence to show that any entry in Exh. D-23 relates to pamphlets similar to Exh. 7. We are also unable to attach any weight to Exh. 3, the complaint given by the appellant to the Returning Officer. The appellant has considerable experience of filing election petitions. This was the third election petition filed by him. Even as the election was going on he appears to have been preparing for the election petition. The evidence of P. W. 7, Narayan Singh Bodh throws a great deal of light on this aspect.15. Large number of witnesses were examined to show that either respondent himself distributed pamphlets like Exh. 7 or he got them distributed through others. Their evidence has been considered by the High Court in detail and rejected. We have been taken through that evidence and we were not impressed by the same. We are satisfied that the High Court has correctly assessed that evidence.16. Generally, this Court accepts the findings of fact arrived at by the High Court. Election petitions are tried by experienced judges of the High Court. They had the benefit of observing the witnesses when they gave evidence. Hence their appreciation of evidence is entitled to great weight. We have not been shown any good reason for departing from that rule.17. Now coming to issue No. 8 which relates to the complaint of the appellant that the respondent, his agents and workers had hired several vehicles for conveyance of the voters to and from the polling stations. In the petition, particulars of as many as twelve vehicles which were said to have been used for conveying voters were given. But the appellants learned Counsel confined his arguments to three vehicles only i. e. Truck No. USK 503, Bus No. RJL 9729 and a Tractor.18. So far as Truck No. USK 503 is concerned, the witnesses who were examined are P. Ws. 37, 40, 41, 45 and 48.Among them the most important witness is P. W. 45 Sukhbir Singh. He claims to have worked for the respondent and transported voters to the polling station in the truck in question. Further he deposed that he hired that truck from "Achaltar Truck Operators Union", Hathras. It is now definitely established and that evidence was not challenged before us that in Hathras there was no concern bearing that name. Hence it is obvious that the evidence of this witness is wholly false. We are unable to accept the contention of Mr. Latifi, learned Counsel for the appellant that the name of concern in question was wrongly mentioned by the witness due to some confusion. The fact that P. W. 45 at one stage worked for the respondent is not of much significance. Changing sides during election is nothing unusual. Once the evidence of P. W. 45 is proved to be false very little basis remains for the evidence of other witnesses who spoke to the user of a truck in question. It is common knowledge that in the trial of election petitions there would be no dearth of witnesses. The factious spirit generated during election projects itself during the trial of election petition that follows. Much value cannot be attached to the complaint given by the appellants agent to the polling officer (Exh.18). That document has several suspicious features which were noticed by the High Court.19. Now coming to the tractor, its registration number was not spoken to by any witness. There is no evidence about its hiring. The witnesses who speak to its user are P. Ws. 33 and 34. The evidence of P. W. 33 is extremely vague. He deposed that a worker of the respondent Sita Ram carried the voters from the villages to the election booth. He is unable to give the details of the tractor. P. W. 34 is an omnibus witness. The evidence relating to owner of that tractor is conflicting. The evidence of P. Ws. 33 and 34 does not carry conviction. It was rightly not relied on by the High Court.20. Now coming to the hiring of Bus RJL 9729, according to the petition that bus was owned by one Babu Lal of Jaipur. That Babu Lal has not been examined. The evidence of P. Ws. 30, 31 and 32 who speak to the conveyance of the voters in that bus to the polling stations is far from satisfactory. Their evidence did not commend itself to the trial court. We agree with the High Court that it is unsafe to rely on their evidence.21. This takes us to issue No. 10 which relates to the complaint of the appellant that the election expenses incurred by the respondent had exceeded the prescribed limit. In this connection various items of expenses said to have been omitted in the return were particularised in the petition but most of them were not pressed at the hearing.22. The evidence relating to the expenses said to have been incurred in procuring and hiring vehicles for conveying voters to the polling booths has to be rejected in view of our earlier findings. Large number of witnesses were examined to show that considerable quantity of wheat, atta, sugar and ghee had been purchased by the respondent for feeding his workers and the expenses incurred for that purpose had not been included in the return of expenses. Their evidence has not been believed by the trial court. We have been taken through the evidence and we do not think it is creditworthy nor are we able to place any reliance on the documents produced in that connection. | 0[ds]5. We are unable to accept the contention of Mr. Veda Vyasa, learned Counsel for the respondent that the petition must be held to have become infructuous in view of the dissolution of the assembly. In this proceeding we are considering the validity of the election of the respondent and not whether he is continuing as a member. If the contention of the appellant that the respondent was guilty of corrupt practices during the election is found to be true then not only his election will be declared void, he is also liable to incur certain electoral disqualifications. The purity of elections is of utmost importance in a democratic set up. No one can be allowed to corrupt the course of an election and get away with it either by resigning his membership or because of the fortuitous circumstance of the assembly having been dissolved. The public are interested in seeing that those who had corrupted the course of an election are dealt with in accordance with law. That purpose will stand defeated if we accept the contention of Mr. Veda Vyasa.6. The election petitions in this country are solely regulated by statutory provisions. Hence unless it is shown that some statutory provision directly or by necessary implication prescribes that the pending election petitions stand abated because of the dissolution of the Assembly, the contention of the respondent cannot be accepted.far as the question of getting it prepared and printed is concerned, the evidence principally relied on is that of P. W. 16 Mohan Singh. We are in agreement with the High Court that Mohan Singh is a wholly unreliable witness. According to him he was a signatory to that pamphlet and he took active part in getting it printed which means that he was a party to the publication of false statements. He appears to have been on the side of the respondent at one stage and walked over to the side of the appellant at a later stage, not uncommon during election time. His evidence does not carry conviction. On his own showing he can be aSo far as Truck No. USK 503 is concerned, the witnesses who were examined are P. Ws. 37, 40, 41, 45 and 48.Among them the most important witness is P. W. 45 Sukhbir Singh. He claims to have worked for the respondent and transported voters to the polling station in the truck in question. Further he deposed that he hired that truck from "Achaltar Truck Operators Union", Hathras. It is now definitely established and that evidence was not challenged before us that in Hathras there was no concern bearing that name. Hence it is obvious that the evidence of this witness is wholly false.We are unable to accept the contention of Mr. Latifi, learned Counsel for the appellant that the name of concern in question was wrongly mentioned by the witness due to someThe fact that P. W. 45 at one stage worked for the respondent is not of much significance. Changing sides during election is nothing unusual. Once the evidence of P. W. 45 is proved to be false very little basis remains for the evidence of other witnesses who spoke to the user of a truck in question. It is common knowledge that in the trial of election petitions there would be no dearth of witnesses. The factious spirit generated during election projects itself during the trial of election petition that follows. Much value cannot be attached to the complaint given by the appellants agent to the polling officer (Exh.18). That document has several suspicious features which were noticed by the High Court.19. Now coming to the tractor, its registration number was not spoken to by any witness. There is no evidence about its hiring. The witnesses who speak to its user are P. Ws. 33 and 34. The evidence of P. W. 33 is extremely vague. He deposed that a worker of the respondent Sita Ram carried the voters from the villages to the election booth. He is unable to give the details of the tractor. P. W. 34 is an omnibus witness. The evidence relating to owner of that tractor is conflicting. The evidence of P. Ws. 33 and 34 does not carry conviction. It was rightly not relied on by the High Court.20. Now coming to the hiring of Bus RJL 9729, according to the petition that bus was owned by one Babu Lal of Jaipur. That Babu Lal has not been examined. The evidence of P. Ws. 30, 31 and 32 who speak to the conveyance of the voters in that bus to the polling stations is far from satisfactory. Their evidence did not commend itself to the trial court. We agree with the High Court that it is unsafe to rely on their evidence.21.This takes us to issue No. 10 which relates to the complaint of the appellant that the election expenses incurred by the respondent had exceeded the prescribed limit.In this connection various items of expenses said to have been omitted in the return were particularised in the petition but most of them were not pressed at the hearing.22. The evidence relating to the expenses said to have been incurred in procuring and hiring vehicles for conveying voters to the polling booths has to be rejected in view of our earlier findings. Large number of witnesses were examined to show that considerable quantity of wheat, atta, sugar and ghee had been purchased by the respondent for feeding his workers and the expenses incurred for that purpose had not been included in the return of expenses. Their evidence has not been believed by the trial court. We have been taken through the evidence and we do not think it is creditworthy nor are we able to place any reliance on the documents produced in that connection. | 0 | 3,307 | 1,047 | ### 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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refers to printing of pamphlets like Exh. 7. Such an inference would be a far-fetched one. According to the respondent D-23 relates to pamphlets similar to Exhs. A-154 and A-155. The High Court has not accepted that contention. The basis on which the High Court rejected that contention does not appear to us to be correct. It is not necessary to go into that question as we are of opinion that there is no satisfactory evidence to show that any entry in Exh. D-23 relates to pamphlets similar to Exh. 7. We are also unable to attach any weight to Exh. 3, the complaint given by the appellant to the Returning Officer. The appellant has considerable experience of filing election petitions. This was the third election petition filed by him. Even as the election was going on he appears to have been preparing for the election petition. The evidence of P. W. 7, Narayan Singh Bodh throws a great deal of light on this aspect.15. Large number of witnesses were examined to show that either respondent himself distributed pamphlets like Exh. 7 or he got them distributed through others. Their evidence has been considered by the High Court in detail and rejected. We have been taken through that evidence and we were not impressed by the same. We are satisfied that the High Court has correctly assessed that evidence.16. Generally, this Court accepts the findings of fact arrived at by the High Court. Election petitions are tried by experienced judges of the High Court. They had the benefit of observing the witnesses when they gave evidence. Hence their appreciation of evidence is entitled to great weight. We have not been shown any good reason for departing from that rule.17. Now coming to issue No. 8 which relates to the complaint of the appellant that the respondent, his agents and workers had hired several vehicles for conveyance of the voters to and from the polling stations. In the petition, particulars of as many as twelve vehicles which were said to have been used for conveying voters were given. But the appellants learned Counsel confined his arguments to three vehicles only i. e. Truck No. USK 503, Bus No. RJL 9729 and a Tractor.18. So far as Truck No. USK 503 is concerned, the witnesses who were examined are P. Ws. 37, 40, 41, 45 and 48.Among them the most important witness is P. W. 45 Sukhbir Singh. He claims to have worked for the respondent and transported voters to the polling station in the truck in question. Further he deposed that he hired that truck from "Achaltar Truck Operators Union", Hathras. It is now definitely established and that evidence was not challenged before us that in Hathras there was no concern bearing that name. Hence it is obvious that the evidence of this witness is wholly false. We are unable to accept the contention of Mr. Latifi, learned Counsel for the appellant that the name of concern in question was wrongly mentioned by the witness due to some confusion. The fact that P. W. 45 at one stage worked for the respondent is not of much significance. Changing sides during election is nothing unusual. Once the evidence of P. W. 45 is proved to be false very little basis remains for the evidence of other witnesses who spoke to the user of a truck in question. It is common knowledge that in the trial of election petitions there would be no dearth of witnesses. The factious spirit generated during election projects itself during the trial of election petition that follows. Much value cannot be attached to the complaint given by the appellants agent to the polling officer (Exh.18). That document has several suspicious features which were noticed by the High Court.19. Now coming to the tractor, its registration number was not spoken to by any witness. There is no evidence about its hiring. The witnesses who speak to its user are P. Ws. 33 and 34. The evidence of P. W. 33 is extremely vague. He deposed that a worker of the respondent Sita Ram carried the voters from the villages to the election booth. He is unable to give the details of the tractor. P. W. 34 is an omnibus witness. The evidence relating to owner of that tractor is conflicting. The evidence of P. Ws. 33 and 34 does not carry conviction. It was rightly not relied on by the High Court.20. Now coming to the hiring of Bus RJL 9729, according to the petition that bus was owned by one Babu Lal of Jaipur. That Babu Lal has not been examined. The evidence of P. Ws. 30, 31 and 32 who speak to the conveyance of the voters in that bus to the polling stations is far from satisfactory. Their evidence did not commend itself to the trial court. We agree with the High Court that it is unsafe to rely on their evidence.21. This takes us to issue No. 10 which relates to the complaint of the appellant that the election expenses incurred by the respondent had exceeded the prescribed limit. In this connection various items of expenses said to have been omitted in the return were particularised in the petition but most of them were not pressed at the hearing.22. The evidence relating to the expenses said to have been incurred in procuring and hiring vehicles for conveying voters to the polling booths has to be rejected in view of our earlier findings. Large number of witnesses were examined to show that considerable quantity of wheat, atta, sugar and ghee had been purchased by the respondent for feeding his workers and the expenses incurred for that purpose had not been included in the return of expenses. Their evidence has not been believed by the trial court. We have been taken through the evidence and we do not think it is creditworthy nor are we able to place any reliance on the documents produced in that connection.
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5. We are unable to accept the contention of Mr. Veda Vyasa, learned Counsel for the respondent that the petition must be held to have become infructuous in view of the dissolution of the assembly. In this proceeding we are considering the validity of the election of the respondent and not whether he is continuing as a member. If the contention of the appellant that the respondent was guilty of corrupt practices during the election is found to be true then not only his election will be declared void, he is also liable to incur certain electoral disqualifications. The purity of elections is of utmost importance in a democratic set up. No one can be allowed to corrupt the course of an election and get away with it either by resigning his membership or because of the fortuitous circumstance of the assembly having been dissolved. The public are interested in seeing that those who had corrupted the course of an election are dealt with in accordance with law. That purpose will stand defeated if we accept the contention of Mr. Veda Vyasa.6. The election petitions in this country are solely regulated by statutory provisions. Hence unless it is shown that some statutory provision directly or by necessary implication prescribes that the pending election petitions stand abated because of the dissolution of the Assembly, the contention of the respondent cannot be accepted.far as the question of getting it prepared and printed is concerned, the evidence principally relied on is that of P. W. 16 Mohan Singh. We are in agreement with the High Court that Mohan Singh is a wholly unreliable witness. According to him he was a signatory to that pamphlet and he took active part in getting it printed which means that he was a party to the publication of false statements. He appears to have been on the side of the respondent at one stage and walked over to the side of the appellant at a later stage, not uncommon during election time. His evidence does not carry conviction. On his own showing he can be aSo far as Truck No. USK 503 is concerned, the witnesses who were examined are P. Ws. 37, 40, 41, 45 and 48.Among them the most important witness is P. W. 45 Sukhbir Singh. He claims to have worked for the respondent and transported voters to the polling station in the truck in question. Further he deposed that he hired that truck from "Achaltar Truck Operators Union", Hathras. It is now definitely established and that evidence was not challenged before us that in Hathras there was no concern bearing that name. Hence it is obvious that the evidence of this witness is wholly false.We are unable to accept the contention of Mr. Latifi, learned Counsel for the appellant that the name of concern in question was wrongly mentioned by the witness due to someThe fact that P. W. 45 at one stage worked for the respondent is not of much significance. Changing sides during election is nothing unusual. Once the evidence of P. W. 45 is proved to be false very little basis remains for the evidence of other witnesses who spoke to the user of a truck in question. It is common knowledge that in the trial of election petitions there would be no dearth of witnesses. The factious spirit generated during election projects itself during the trial of election petition that follows. Much value cannot be attached to the complaint given by the appellants agent to the polling officer (Exh.18). That document has several suspicious features which were noticed by the High Court.19. Now coming to the tractor, its registration number was not spoken to by any witness. There is no evidence about its hiring. The witnesses who speak to its user are P. Ws. 33 and 34. The evidence of P. W. 33 is extremely vague. He deposed that a worker of the respondent Sita Ram carried the voters from the villages to the election booth. He is unable to give the details of the tractor. P. W. 34 is an omnibus witness. The evidence relating to owner of that tractor is conflicting. The evidence of P. Ws. 33 and 34 does not carry conviction. It was rightly not relied on by the High Court.20. Now coming to the hiring of Bus RJL 9729, according to the petition that bus was owned by one Babu Lal of Jaipur. That Babu Lal has not been examined. The evidence of P. Ws. 30, 31 and 32 who speak to the conveyance of the voters in that bus to the polling stations is far from satisfactory. Their evidence did not commend itself to the trial court. We agree with the High Court that it is unsafe to rely on their evidence.21.This takes us to issue No. 10 which relates to the complaint of the appellant that the election expenses incurred by the respondent had exceeded the prescribed limit.In this connection various items of expenses said to have been omitted in the return were particularised in the petition but most of them were not pressed at the hearing.22. The evidence relating to the expenses said to have been incurred in procuring and hiring vehicles for conveying voters to the polling booths has to be rejected in view of our earlier findings. Large number of witnesses were examined to show that considerable quantity of wheat, atta, sugar and ghee had been purchased by the respondent for feeding his workers and the expenses incurred for that purpose had not been included in the return of expenses. Their evidence has not been believed by the trial court. We have been taken through the evidence and we do not think it is creditworthy nor are we able to place any reliance on the documents produced in that connection.
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Commissioner Income-Tax, U.P Vs. Kunwar Trivikram Narain Singh | by this Court in Kameshwar Singh v. Commr of Income-Tax, B and O, (1961) 41 ITR 169 : (AIR 1961 SC 362 ) and the Court again looked to the source of the right in order to determine whether income was agricultural income or not. Shah, J., observed:"The appellant has no beneficial interest in the lands which are the subject-matter of the trust: nor is he given under the trust a right to receive and appropriate to himself the income of the properties or a part thereof in lieu of any beneficial interest in that income. The source of the right in which a fraction of the net income of the trust is to be appropriated by the appellant as his remuneration is not in the right to receive rent or revenue of agricultural lands, but rests in the covenant in the deed to receive remuneration for management of the trust. The income of the trust appropriated by the appellant as remuneration is not received by him as rent or revenue of land; the character of the income appropriated as remuneration due is again not the same as the character in which it was received by the appellant as trustee. Both the source and character of the income are, therefore, altered when a part of the income of the trust is appropriated by the appellant as his remuneration, and that is so, notwithstanding that computation of remuneration is made as a percentage of the income, a substantial part whereof is derived from lands used for agricultural purposes. The remuneration not being received as rent or revenue of agricultural lands under a title, legal or beneficial in the property from which the income is received, it is not income exempt under section 4(3)(viii)."13. It follows from the decisions of the Privy Council and the judgments of this Court cited above that if it is held in this case that the source of the allowance or pension is the arrangement arrived at in 1837, then the income cannot be held to be derived from land within the meaning of the definition in S. 2(1)(a) of the Act. It seems to us that in this case the source of income is clearly the arrangement arrived at in 1837 and, therefore, it is not agricultural income as defined in the Act.14. Mr. Sastri sought to distinguish those cases on the ground that the allowance here varied from year to year. Assuming that the allowance varied from year to year, the source of the income still remains the arrangement and not land.15. The next point that arises in this case is whether the allowance is taxable income at all. Mr. Sastri contends that it is capital receipt. He says that if the assessees predecessor had received compensation for relinquishing his title to the lands in dispute, that would have been a capital receipt and not taxable. He further says that the allowance was in fact a payment of the compensation for relinquishing the title to those lands. He says that we must consider the quality of the income and not its periodicity. He refers to the following passage from the speech of Viscount Simon in Commr. of Inland Revenue v. Wesleyan and General Assurance Society, (1949) 30 TAX Cas. 11;"It may be well to repeat two propositions which are well established in the application of the law relating to Income Tax. First, the name given to a transaction by the parties concerned does not necessarily decide the nature of the transaction. To call a payment a law if it is really an annuity does not assist the taxpayer, any more than to call an item a capital payment would prevent it from being regarded as an income payment if that is its true nature. The question always is what is the real character of the payment, not what the parties call it."He, therefore, asked us to disregard the word pension in the letter dated July 7, 1837, and determine the real character of the payment. Another passage from the speech of Viscount Simon is also relevant. Lord Simon observed:Secondly, a transaction which on its true construction, is of a kind that would escape tax, is not taxable on the ground that the same result could be brought about by a transaction in another form which would attract tax. As the Master of the Rolls said in the present case: "In dealing with Income Tax questions it frequently happens that there are two methods at least of achieving a particular financial result. If one of those methods is adopted tax will be payable. If the other method is adopted, tax will not be payable. . . . . . The net result from the financial point of view is precisely the same in each case, but one method of achieving it attracts tax and the other method does not. There have been cases in the past where what has been called the substance of the transaction has been thought to enable the Court to construe a document in such a way as to attract tax. That particular doctrine of substance as distinct from form was, I hope, finally exploded by the decision of the House of Lords in the case of Duke of Westminster v. Commrs of Inland Revenue (1935) 19 Tax Cas. 490.16. It seems to us that where an owner of an estate exchanges a capital asset for a perpetual annuity, it is ordinarily taxable income in his hands. The position will be different if he exchanges his estate for a capital sum payable in instalments. The instalments when received would not be taxable income.17. Mr. Sastri, relying on Perrin v. Dickson, (1929) 14 Tax Cas. 608 contends that an annuity is not always taxable as income. This is true, but in this case no material has been produced to show that the allowance was in fact a payment in instalments of the value of the disputed title of the assessees predecessor in 1837. | 1[ds]13. It follows from the decisions of the Privy Council and the judgments of this Court cited above that if it is held in this case that the source of the allowance or pension is the arrangement arrived at in 1837, then the income cannot be held to be derived from land within the meaning of the definition in S. 2(1)(a) of the Act. It seems to us that in this case the source of income is clearly the arrangement arrived at in 1837 and, therefore, it is not agricultural income as defined in the Act.14. Mr. Sastri sought to distinguish those cases on the ground that the allowance here varied from year to year. Assuming that the allowance varied from year to year, the source of the income still remains the arrangement and not land.15.The next point that arises in this case is whether the allowance is taxable income at all. Mr. Sastri contends that it is capital receipt.He says that if the assessees predecessor had received compensation for relinquishing his title to the lands in dispute, that would have been a capital receipt and not taxable. He further says that the allowance was in fact a payment of the compensation for relinquishing the title to those lands. He says that we must consider the quality of the income and not its periodicity. He refers to the following passage from the speech of Viscount Simon in Commr. of Inland Revenue v. Wesleyan and General Assurance Society, (1949) 30 TAX Cas.may be well to repeat two propositions which are well established in the application of the law relating to Income Tax. First, the name given to a transaction by the parties concerned does not necessarily decide the nature of the transaction. To call a payment a law if it is really an annuity does not assist the taxpayer, any more than to call an item a capital payment would prevent it from being regarded as an income payment if that is its true nature. The question always is what is the real character of the payment, not what the parties calltherefore, asked us to disregard the word pension in the letter dated July 7, 1837, and determine the real character of the payment. Another passage from the speech of Viscount Simon is also relevant. Lord Simona transaction which on its true construction, is of a kind that would escape tax, is not taxable on the ground that the same result could be brought about by a transaction in another form which would attract tax. As the Master of the Rolls said in the present case:dealing with Income Tax questions it frequently happens that there are two methods at least of achieving a particular financial result. If one of those methods is adopted tax will be payable. If the other method is adopted, tax will not be payable. . . . . . The net result from the financial point of view is precisely the same in each case, but one method of achieving it attracts tax and the other method does not. There have been cases in the past where what has been called the substance of the transaction has been thought to enable the Court to construe a document in such a way as to attract tax. That particular doctrine of substance as distinct from form was, I hope, finally exploded by the decision of the House of Lords in the case of Duke of Westminster v. Commrs of Inland Revenue (1935) 19 Tax Cas. 490.16. It seems to us that where an owner of an estate exchanges a capital asset for a perpetual annuity, it is ordinarily taxable income in his hands. The position will be different if he exchanges his estate for a capital sum payable in instalments. The instalments when received would not be taxable income.17. Mr.Sastri, relying on Perrin v. Dickson, (1929) 14 Tax Cas. 608contends that an annuity is not always taxable as income. This is true, but in this case no material has been produced to show that the allowance was in fact a payment in instalments of the value of the disputed title of the assessees predecessor in 1837. | 1 | 3,004 | 766 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
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by this Court in Kameshwar Singh v. Commr of Income-Tax, B and O, (1961) 41 ITR 169 : (AIR 1961 SC 362 ) and the Court again looked to the source of the right in order to determine whether income was agricultural income or not. Shah, J., observed:"The appellant has no beneficial interest in the lands which are the subject-matter of the trust: nor is he given under the trust a right to receive and appropriate to himself the income of the properties or a part thereof in lieu of any beneficial interest in that income. The source of the right in which a fraction of the net income of the trust is to be appropriated by the appellant as his remuneration is not in the right to receive rent or revenue of agricultural lands, but rests in the covenant in the deed to receive remuneration for management of the trust. The income of the trust appropriated by the appellant as remuneration is not received by him as rent or revenue of land; the character of the income appropriated as remuneration due is again not the same as the character in which it was received by the appellant as trustee. Both the source and character of the income are, therefore, altered when a part of the income of the trust is appropriated by the appellant as his remuneration, and that is so, notwithstanding that computation of remuneration is made as a percentage of the income, a substantial part whereof is derived from lands used for agricultural purposes. The remuneration not being received as rent or revenue of agricultural lands under a title, legal or beneficial in the property from which the income is received, it is not income exempt under section 4(3)(viii)."13. It follows from the decisions of the Privy Council and the judgments of this Court cited above that if it is held in this case that the source of the allowance or pension is the arrangement arrived at in 1837, then the income cannot be held to be derived from land within the meaning of the definition in S. 2(1)(a) of the Act. It seems to us that in this case the source of income is clearly the arrangement arrived at in 1837 and, therefore, it is not agricultural income as defined in the Act.14. Mr. Sastri sought to distinguish those cases on the ground that the allowance here varied from year to year. Assuming that the allowance varied from year to year, the source of the income still remains the arrangement and not land.15. The next point that arises in this case is whether the allowance is taxable income at all. Mr. Sastri contends that it is capital receipt. He says that if the assessees predecessor had received compensation for relinquishing his title to the lands in dispute, that would have been a capital receipt and not taxable. He further says that the allowance was in fact a payment of the compensation for relinquishing the title to those lands. He says that we must consider the quality of the income and not its periodicity. He refers to the following passage from the speech of Viscount Simon in Commr. of Inland Revenue v. Wesleyan and General Assurance Society, (1949) 30 TAX Cas. 11;"It may be well to repeat two propositions which are well established in the application of the law relating to Income Tax. First, the name given to a transaction by the parties concerned does not necessarily decide the nature of the transaction. To call a payment a law if it is really an annuity does not assist the taxpayer, any more than to call an item a capital payment would prevent it from being regarded as an income payment if that is its true nature. The question always is what is the real character of the payment, not what the parties call it."He, therefore, asked us to disregard the word pension in the letter dated July 7, 1837, and determine the real character of the payment. Another passage from the speech of Viscount Simon is also relevant. Lord Simon observed:Secondly, a transaction which on its true construction, is of a kind that would escape tax, is not taxable on the ground that the same result could be brought about by a transaction in another form which would attract tax. As the Master of the Rolls said in the present case: "In dealing with Income Tax questions it frequently happens that there are two methods at least of achieving a particular financial result. If one of those methods is adopted tax will be payable. If the other method is adopted, tax will not be payable. . . . . . The net result from the financial point of view is precisely the same in each case, but one method of achieving it attracts tax and the other method does not. There have been cases in the past where what has been called the substance of the transaction has been thought to enable the Court to construe a document in such a way as to attract tax. That particular doctrine of substance as distinct from form was, I hope, finally exploded by the decision of the House of Lords in the case of Duke of Westminster v. Commrs of Inland Revenue (1935) 19 Tax Cas. 490.16. It seems to us that where an owner of an estate exchanges a capital asset for a perpetual annuity, it is ordinarily taxable income in his hands. The position will be different if he exchanges his estate for a capital sum payable in instalments. The instalments when received would not be taxable income.17. Mr. Sastri, relying on Perrin v. Dickson, (1929) 14 Tax Cas. 608 contends that an annuity is not always taxable as income. This is true, but in this case no material has been produced to show that the allowance was in fact a payment in instalments of the value of the disputed title of the assessees predecessor in 1837.
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13. It follows from the decisions of the Privy Council and the judgments of this Court cited above that if it is held in this case that the source of the allowance or pension is the arrangement arrived at in 1837, then the income cannot be held to be derived from land within the meaning of the definition in S. 2(1)(a) of the Act. It seems to us that in this case the source of income is clearly the arrangement arrived at in 1837 and, therefore, it is not agricultural income as defined in the Act.14. Mr. Sastri sought to distinguish those cases on the ground that the allowance here varied from year to year. Assuming that the allowance varied from year to year, the source of the income still remains the arrangement and not land.15.The next point that arises in this case is whether the allowance is taxable income at all. Mr. Sastri contends that it is capital receipt.He says that if the assessees predecessor had received compensation for relinquishing his title to the lands in dispute, that would have been a capital receipt and not taxable. He further says that the allowance was in fact a payment of the compensation for relinquishing the title to those lands. He says that we must consider the quality of the income and not its periodicity. He refers to the following passage from the speech of Viscount Simon in Commr. of Inland Revenue v. Wesleyan and General Assurance Society, (1949) 30 TAX Cas.may be well to repeat two propositions which are well established in the application of the law relating to Income Tax. First, the name given to a transaction by the parties concerned does not necessarily decide the nature of the transaction. To call a payment a law if it is really an annuity does not assist the taxpayer, any more than to call an item a capital payment would prevent it from being regarded as an income payment if that is its true nature. The question always is what is the real character of the payment, not what the parties calltherefore, asked us to disregard the word pension in the letter dated July 7, 1837, and determine the real character of the payment. Another passage from the speech of Viscount Simon is also relevant. Lord Simona transaction which on its true construction, is of a kind that would escape tax, is not taxable on the ground that the same result could be brought about by a transaction in another form which would attract tax. As the Master of the Rolls said in the present case:dealing with Income Tax questions it frequently happens that there are two methods at least of achieving a particular financial result. If one of those methods is adopted tax will be payable. If the other method is adopted, tax will not be payable. . . . . . The net result from the financial point of view is precisely the same in each case, but one method of achieving it attracts tax and the other method does not. There have been cases in the past where what has been called the substance of the transaction has been thought to enable the Court to construe a document in such a way as to attract tax. That particular doctrine of substance as distinct from form was, I hope, finally exploded by the decision of the House of Lords in the case of Duke of Westminster v. Commrs of Inland Revenue (1935) 19 Tax Cas. 490.16. It seems to us that where an owner of an estate exchanges a capital asset for a perpetual annuity, it is ordinarily taxable income in his hands. The position will be different if he exchanges his estate for a capital sum payable in instalments. The instalments when received would not be taxable income.17. Mr.Sastri, relying on Perrin v. Dickson, (1929) 14 Tax Cas. 608contends that an annuity is not always taxable as income. This is true, but in this case no material has been produced to show that the allowance was in fact a payment in instalments of the value of the disputed title of the assessees predecessor in 1837.
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ANUJ JAIN INTERIM RESOLUTION PROFESSIONAL FOR JAYPEE INFRATECH LIMITED Vs. AXIS BANK LIMITED ETC | surety for giving guarantee as provided under Section 127 of the Contract Act. When the creditor abstained from enforcing the claim against the principal debtor because of such promise to create mortgage by the defendant, such forbearance was held to be sufficient and valid consideration. It is difficult to stretch the ratio of the said decision so as to be applied to the issue at hand concerning the definition of financial debt under Section 5(8) of the Code, which conspicuously omits mortgage; and which requires disbursement against the consideration for the time value of money as the lead elements. As said, the respondent- lenders of JAL, while holding the mortgages in their hands, as said to have been executed by the corporate debtor JIL, may be carrying a security interest and may be the creditors who may claim to be falling within the terminology secured creditors, yet cannot become financial creditors of the corporate debtor JIL who is not owing any financial debt to them. The decision in Smt. Kusum does not make out a case in favour of the respondents, the lenders of JAL. 52. Another decision forming the mainstay of the respondents had been that in the case of Rajkumari Kaushalya Devi (supra). The relevant background aspects of the said case had been that the appellant had executed two usufructuary mortgages with respect to the two properties situated in Feroozepore city in favour of the respondent while also taking the same property on lease on the very same date in 1946. On default in effecting payments by the appellant, the respondents filed an application under Section 13 of the Displaced Persons (Debts Adjustment) Act 70 of 1951 seeking recovery of the principal amount together with arrears of rental. While omitting other aspects which may not be relevant, noticeable it is for the present purpose that one of the points for consideration in the case had been as to whether the liability created under the said mortgage was a debt within the meaning of Section 2(6) of the Act 70 of 1951. It was contended on behalf of the appellant that such liability under the mortgage was not a pecuniary liability and, therefore, Section 2(6) did not apply to a mortgage debt. 52.1. The argument aforesaid was rejected by this Court after taking note of the definition of debt as occurring in the said enactment. The principal part of the said definition, relevant for the present purpose read as under:- Debt means any pecuniary liability, whether payable presently or in future, or under a decree or order of civil or revenue court or otherwise, or whether ascertained or to be ascertained, which — *** *** *** 52.2. This Court, inter alia, observed, with reference to the definition aforesaid as occurring in Act 70 of 1951 and the definition of mortgage as occurring in the Transfer of Property Act, as under: 3….The main contention of the appellant in this connection is that a mortgage debt is not a pecuniary liability and therefore does not fall within the definition of debt at all. We are of opinion that there is no force in this contention. The words pecuniary liability will cover any liability which is of a monetary nature. Now the definition of a mortgage in Section 58 of the Transfer of Property Act 4 of 1882, shows that though it is the transfer of an interest in specific immovable property, the purpose of the transfer is to secure the payment of money advanced or to be advanced by way of loan or to secure an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. The money advanced by way of loan, for example, which is secured by a mortgage, obviously creates a pecuniary liability. It is true that a mortgage in addition to creating the pecuniary liability also transfers interest in the specific immovable property to secure that liability; none the less the loan or debt to secure which the mortgage is created will remain a pecuniary liability of the person creating the mortgage. Therefore a mortgage debt would create a pecuniary liability upon the mortgagor and would be covered by the definition of the word debt in Section 2(6)…. 52.3. The proposition aforesaid, being related with the definition of debt as occurring in the said enactment (Act 70 of 1951), cannot have a direct application in the present case. In any event, the said decision cannot be taken as an authority governing the transaction where there is no direct debt of the mortgagor himself. 53. The other citations, on various terminologies related with mercantile law and mortgage transactions, do not advance the cause of the respondents because of distinct and rather peculiar requirements of Section 5(8) of the Code. Of course, the decision of NCLAT in SREI Infrastructure Finance Limited (supra) stands disapproved for what we have held hereinabove. Equally, the other submissions about the contents of the documents in question as also the entitlement of respondent-lenders to invoke the security or to take up the proceedings under SARFAESI Act etc. do not, in any event, make the transactions in question financial debts within the meaning of Section 5(8) of the Code. Such submissions have only been noted to be rejected. Summation on second issue 54. For what has been discussed hereinabove, on the issue as to whether lenders of JAL could be treated as financial creditors, we hold that such lenders of JAL, on the strength of the mortgages in question, may fall in the category of secured creditors, but such mortgages being neither towards any loan, facility or advance to the corporate debtor nor towards protecting any facility or security of the corporate debtor, it cannot be said that the corporate debtor owes them any financial debt within the meaning of Section 5(8) of the Code; and hence, such lenders of JAL do not fall in the category of the financial creditors of the corporate debtor JIL. Conclusion | 1[ds]consequences of offending preferential transaction are, obviously, drastic and practically operate towards annulling the effect of such transaction. Looking to the contents, context and consequences, we are at one with the contentions urged on behalf of the respondents with reference to the decisions in Devinder Singh (supra) and other cited cases, that these provisions need to be strictly construed. However, even if we proceed on strict construction of Section 43 of the Code, the underlying principles and the object cannot be lost sight of. In other words, the construction has to be such that leads towards achieving the object of these provisions19.3. On a conspectus of the principles so enunciated, it is clear that although the word deemed is employed for different purposes in different contexts but one of its principal purpose, in essence, is to deem what may or may not be in reality, thereby requiring the subject-matter to be treated as if real. Applying the principles to the provision at hand i.e., Section 43 of the Code, it could reasonably be concluded that any transaction that answers to the descriptions contained in sub-sections (4) and (2) is presumed to be a preferential transaction at a relevant time, even though it may not be so in reality. In other words, since sub-sections (4) and (2) are deeming provisions, upon existence of the ingredients stated therein, the legal fiction would come into play; and such transaction entered into by a corporate debtor would be regarded as preferential transaction with the attendant consequences as per Section 44 of the Code, irrespective whether the transaction was in fact intended or even anticipated to be so19.4. Even when the above-stated indicting parts of Section 43 as occurring in sub-sections (4) and (2) are satisfied and the corporate debtor is deemed to have given preference at a relevant time to a related party or unrelated party, as the case may be, such deemed preference may yet not be an offending preference, if it falls into any or both of the exclusions provided by sub-section (3) i.e., having been entered into during the ordinary course of business of the corporate debtor ortransferee or resulting in acquisition of new value for the corporate debtor19.5. Thus, the net concentrate of Section 43 is that if a transaction entered into by a corporate debtor is not falling in either of the exceptions provided by sub-section (3) and satisfies the three-fold requirements of sub-sections (4) and (2), it would be deemed to be a preference during a relevant time, whether or not in fact it were so; and whether or not it were intended or anticipated to be soObviously, if the transactions in question are to fall squarely within the mischief of Section 43, they must satisfy all the specifications and ingredients of sub-sections (2) and (4) of Section 43 and ought not to be within the exclusion provided in sub- section (3) thereof22.2.1. As noticed, 09.08.2017 is the insolvency commencement date in this case. The transactions in question, even if of putting the concerned properties under mortgage with the lenders, carry the ultimate effect of working towards the benefit and advantage of the borrower i.e., JAL who obtained loans and finances by virtue of such transactions. It is true that there had not been any creditor-debtor relationship between the lender banks and corporate debtor JIL but that will not be decisive of the question of the ultimate beneficiary of these transactions. The mortgage deeds in question, entered by the corporate debtor JIL to secure the debts of JAL, obviously, amount to creation of security interest to the benefit of JAL22.2.2. Now, the capacity of JAL is admittedly that of the holding company of JIL as its largest equity shareholder ( with approximately 71.64 % shareholding). Moreover, JAL had admittedly been the operational creditor of JIL, for an amount of approximately Rs. 261.77 crores. JAL itself maintains that it had been providing financial, technical and strategic support to JIL in various ways. It is the assertion that apart from making investment in terms of equity shareholding to the tune of Rs. 995 crores, JAL had pledged its 70,83,56,087 equity shares held in JIL in favour of the lenders of JIL; had also entered into Promoter Support Agreement to the lenders of JIL to meet the DSRA obligation of JIL towards its lenders; and had further extended Bank Guarantees of Rs. 212 crores to meet the DSRA obligation of JIL. These assertions, in our view, put JAL in such capacity that it is a related party to JIL and is a creditor as also surety of JIL. In other words, the corporate debtor JIL owed antecedent financial debts as also operational debts and other liabilities towards JAL22.3. In the scenario taken into comprehension hereinabove, there is nothing to doubt that the corporate debtor JIL has given a preference by way of the mortgage transactions in question for the benefit of its related person JAL (who has been the creditor as also surety for JIL) for and on account of antecedent financial debts, operational debts and other liabilities owed to such related person. In the given fact situation, it is plain and clear that the transactions in question meet with all the requirements of clause (a) of sub-section (2) of Section 4322.4. It is also not far to seek that in the given scenario, the requirements of clause (b) of sub-section (2) of Section 43 are also met fair and square. On behalf of the respondents, emphasis is laid on the fact that in the distribution waterfall in case of liquidation (per Section 53 of the Code), JAL, as an operational creditor, stands much lower in priority than the other creditors and stakeholders. Such submissions, in our view, only strengthen the position that by way of the impugned transfers, JAL is put in a much beneficial position than it would have been in the absence of such transfers. It has rightly been contended on behalf of the appellants that with the transactions in question, JAL has been put in an advantageous position vis-à-vis other creditors on the counts that: a) JAL received a huge working capital (approx. Rupees 30000 crores), by way of loans and facilities extended to it by the respondent-lenders; and b) by way of the transactions in question, JALs liability towards its own creditors shall be reduced, in so far as the value of the mortgaged properties is concerned, which is said to be approximately Rs. 6000 crores. As a necessary corollary of the beneficial and advantageous position of the related party JAL with creation of such security interest over the properties of JIL, in the eventuality of distribution of assets under Section 53, the other creditors and stakeholders of JIL shall have to bear the brunt of the corresponding disadvantage because such heavily encumbered assets will not form the part of available estate of the corporate debtor. Obviously, JAL stands dearly benefited and has derived such benefits at the cost, and in exclusion, of the other creditors and stakeholders of the corporate debtor JIL. The applicability of clauses (a) and (b) of sub-section (2) of Section 43 of the Code is clear and complete in relation to the impugned six transactions22.5. Therefore, in relation to the present case, the answers to questions (i), (ii) and (iii) as referred in paragraph 20 are that: the impugned transactions had been of transfers for the benefit of JAL, who is a related party of the corporate debtor JIL and is its creditor and surety by virtue of antecedent operational debts as also other facilities extended by it; and the impugned transactions have the effect of putting JAL in a beneficial position than it would have been in the event of distribution of assets being made in accordance with Section 53 of the Code. Thus, the corporate debtor JIL has given a preference in the manner laid down in sub-section (2) of Section 43 of the CodeThe submissions, in our view, remain bereft of substance23.1.1. The scheme of IBC is to disapprove and disregard such preferential transaction which falls within the ambit of Section 43 and to ensure that any property likely to have been lost due to such transaction is brought back to the corporate debtor; and if any encumbrance is created, to remove such encumbrance so as to bring the corporate debtor back on its wheels or in other event (of liquidation), to ensure pro rata, equitable and just distribution of its assets. Such provisions as contained in Sections 43 and 44 came into operation as the comprehensive scheme of corporate insolvency resolution and liquidation from the date of being made effective; and merely because look-back period is envisaged, for the purpose of finding relevant time, it cannot be said that the provision itself is retrospective in operation. Reference to the decision of this Court in the case of Purbanchal Cables (supra) is entirely inaptThe provisions contained in Section 43, however, indicate the intention of legislature that when a preference is given at a relevant time and thereby, the beneficiary of preference acquires unwarranted better position in the event of distribution of assets, the same may not be countenanced. Looking to the scheme of IBC and the principles applicable for the conduct of the affairs of a corporate person, it cannot be said that anything of a new liability has been imposed or a new right has been created. Maximisation of value of assets of corporate persons and balancing the interests of all the stakeholders being the objectives of the Code, the provisions therein need to be given fuller effect in conformity with the intention of the legislature23.1.2. We may also observe that if the contentions urged on behalf of the respondents were to be accepted, the result would be of postponing the effective date of operation of sub-section (4) of Section 43 by two years in the case of related party and to one year in the case of unrelated party, and thereby, effectively postponing the application of entire Section 43 for a period of two years! That cannot be and had never been the intention of legislature. It is also noteworthy that by virtue of proviso to sub-section (3) of Section 1 of the Code, different dates can be provided for enforcement of different provisions of the Code; and in fact, different provisions have been brought into effect on different dates. However, after coming into force of the provisions, if a look-back period is provided for the purpose of any particular enquiry, it cannot be said that the operation of the provision itself would remain in hibernation until such look-back period from the date of commencement of the provision comes to an end. There is nothing in the Code to indicate that any provision in Chapter II or Chapter III be taken out and put in operation at a later date than the date notified. Such contentions being totally devoid of substance, deserve to be, and are, rejected24. We may now take up the question as to which of the transactions in question would entail in giving preference at a relevant time or otherwise. As noticed, the preference is given to JAL who is a related party of JIL. Hence, the look-back period is two years preceding insolvency commencement date i.e., 09.08.2017 per clause (a) of sub-section (4) of Section 43; and accordingly, the point of enquiry would be as to whether the preference had been given during the period of two years preceding 09.08.2017. Therefore, the transactions commencing from 10.08.2015 until the date of insolvency commencement shall fall under the scanner. As noticed, it has been one of the major contentions of the respondents that most of the impugned transactions were not of creation of any new encumbrance by JIL and in fact, most of the properties in question had already been under mortgage with the respective lenders much before the period under consideration i.e., much before 10.08.201524.1. It may at once be noticed that the transaction that was clearly falling beyond the period under consideration was, in fact, kept out of the purview of Section 43 of the Code by NCLT itself, being that relating to Property No. 7 (as mentioned in paragraph 4.5 hereinbefore)24.2. So far as the transaction relating to Property No. 6 is concerned, being the mortgage deed dated 04.03.2016, towards Short-Term Loan Facility to JAL of Rs. 1000 crores by State Bank of India, the same obviously falls within the look-back period. Even if JAL had allegedly entered into the facility agreement with this lender bank on 26.03.2015, this date is hardly of any bearing so far as transaction by the corporate debtor JIL is concerned, which was made only on 04.03.201624.3.1. It has been one of the major contentions of the respondents that most of the impugned transactions were not of creation of any new encumbrance by JIL and in fact, most of the properties in question had already been under mortgage with the respective lenders. The submissions of respondents in relation to the aforesaid five transactions, that they had been of so-called re- mortgage/s, carry their own shortcomings and cannot be accepted. In the first place, we are clearly of the view that on release by the mortgagee, the mortgage ceases to exist and it is difficult to countenance the concept of a so- called re-mortgage. The so-called re-mortgage, on all its legal effects and connotations, could only be regarded as a fresh mortgage; and it obviously befalls on the mortgagor to consider at the time of creating any fresh mortgage as whether such a transaction is expedient and whether it should be entered into at all. Noticeable it is that in relation to Property No. 1 and 2, even if the initial mortgage had been dated 24.02.2015 falling beyond the look-back period, it was released on 15.09.2015 and this date (15.09.2015) falls within the look-back period. Even if the same property has been again mortgaged with the same lender/s on the same day of release, the same cannot be countenanced for the transaction operates towards extending unwarranted preference to JAL by the corporate debtor JIL. Significant it is to notice that while making this mortgage dated 15.09.2015, the facility amount being obtained by JAL got swelled from Rs. 3250 crores to a whopping Rs. 24109 crores and the number of creditors went up from 2 to 24. Such a transaction, in our view, had only been of a fresh mortgage to secure extra facilities obtained by JAL and thereby, extending unwarranted advantage to JAL at the cost of the estate of JIL. In the other transaction dated 29.12.2016, by which the properties in question were again put under mortgage with the lender/s, the facility amount was shown as Rs. 23491 crores. The transactions on 15.09.2015 and 29.12.2016 cannot be given credence with reference to the previous mortgage deed dated 24.02.2015. Similar is the case in relation to Property No. 3. Even when the previous mortgage was given on 12.05.2014 i.e., beyond the look-back period, there had been release deeds on 30.12.2015 and 26.06.2016 as regards certain parcels of land. So far the release of land to JIL is concerned, the same causes no problem and only works to the benefit of JIL and its stakeholders. However, when the remaining land was also released on 07.03.2017, its fresh mortgage, even if on the same date, cannot be countenanced and is hit by Section 43, being a deemed preference. The very same considerations apply in relation to the Property No. 4 too. As regards Property No. 5, even if there had been certain previous mortgage transactions falling beyond the look-back period, the property got released on 04.11.2015; and thereafter, the fresh mortgage on 24.05.2016, with increased facility amount from Rs. 1470 crores to Rs. 1767 crores, suffers from the same vice, of being a deemed preference to a related party during the period of two years preceding the insolvency commencement date24.4. For what has been discussed hereinabove, the conclusion is inevitable that the impugned preference was given to a related party during a relevant time. However, before concluding on this part of discussion, we may also observe that reference to the decisions of Madras and Bombay High Courts in the case of IDBI Bank Ltd and Monarch Enterprises respectively, is neither apposite nor advances the cause of the respondents for the reason that the said decisions had essentially been on the question/s as to whether the impugned transactions were of fraudulent preference per Section 531 or lacking in good faith per Section 531A of the Companies Act, 1956. In fact, in the case of IDBI Bank (supra) the corporate debtor attempted to transfer one of its property to the appellant bank, who was one of its creditors and in that regard, certain transactions like agreement for sale and handing over possession were suggested and it was alleged that the contract for sale was partly performed about one year and four months prior to the winding-up proceedings; and such being beyond the look-back period of six months as envisaged by Section 531 of the Companies Act, 1956, it was argued that it had not been a fraudulent transfer. The contentions were not accepted by the Single Judge and by the Division Bench of the High Court for the reason that mere handing over of possession or documents did not complete the sale; rather the Court was of the view that such documents were created only in order to avoid the transaction being called a fraudulent preference. Apart that the element of fraud is not the essential ingredient of Section 43 of the Code, the said decision in IDBI Bank, on the approach of the Courts towards corporate transactions makes it clear that any transaction favouring one stakeholder at the cost of the other is viewed with disfavour and is disapproved, particularly if it takes place during the prescribed look-back period24.5. For what has been discussed hereinabove, the answer to question (iv) as referred in paragraph 20 is that the transactions in question had been of deemed preference to related party JAL by the corporate debtor JIL during the look-back period of two years and have rightly been held covered within the period envisaged by sub-section (4) of Section 43 of the Code.Ordinary course of business or financial affairs25.1. Having taken into comprehension the scheme of the Code and the purpose and purport of the provisions contained in Section 43, we find force and substance in the submissions made on behalf of the appellants25.2. As noticed, in the scheme of such provisions in the Code, the underlying concept is to disregard and practically annul such transactions which appear, in the course of insolvency resolution or liquidation, to be preferential so as to minimise the potential loss to other stakeholders in the affairs of the corporate debtor, particularly its creditors. What is to be examined for the purpose of Section 43 is the conduct and affairs of the corporate debtor. If the beneficiary of the transaction in question is a related party of the corporate debtor, the period of enquiry is enlarged to two years whereas this period is one year in other cases. During such scanning, by virtue of sub-section (3) of Section 43, two types of transfers are kept out of the purview of sub-section (2), which would not be treated as preference. Though in the present case, we are concerned only with the phraseology occurring in clause (a) of sub-section (3) but, we may usefully refer to clause (b) thereof, for an insight into the underlying concept for providing exception in regard to certain transfers and keeping them out of the purview of preference25.2.1. By virtue of clause (b) of sub-section (3) [read with Explanation thereto], any transfer creating a security interest in the property acquired by the corporate debtor is not to be treated as preference to the extent that such security interest secures new value in monetary terms or in terms of goods, services or new credit or in release of a previously transferred property. Any micro dissection of clause (b) of sub-section (3) of Section 43 is not required in the present case. Suffice it to notice that even a bare look at the provision brings forth the concept that value enhancement or strengthening of the corporate debtor ought to be the result of a transfer, if it is to remain out of the ambit of sub-section (2) and not to fall within the mischief of being preferential25.2.2. Another feature of vital importance is that the matter is examined with reference to the dealing and conduct of the corporate debtor; and qua the health and prospects of the corporate debtor. Applying the well-known principles of noscitur a sociis, whereunder the questionable meaning of a doubtful word could be derived and understood from its associates and context; and usefully recapping that the scheme of Section 43 of the Code is essentially of scanning through the affairs of the corporate debtor and to discredit and disregard such transaction by the corporate debtor which tends to give unwarranted benefit to one of its creditor/surety/guarantor over others, in our view, the purport of clause (a) of sub-section (3) of Section 43 is also principally directed towards the corporate debtors dealings. In other words, the whole of conspectus of sub-section (3) is that only if any transfer is found to have been made by the corporate debtor, either in the ordinary course of its business or financial affairs or in the process of acquiring any enhancement in its value or worth, that might be considered as having been done without any tinge of favour to any person in preference to others and thus, might stand excluded from the purview of being preferential, subject to fulfilment of other requirements of sub-section (3) of Section 4325.3. Needless to reiterate that if the transfer is examined with reference to the ordinary course of business or financial affairs of the transferee alone, it may conveniently get excluded from the rigour of sub-section (2) of Section 43, even if not standing within the scope of ordinary course of business or financial affairs of the corporate debtor. Such had never been the scheme of the Code nor the intent of Section 43 thereof. It has rightly been contended on behalf of the appellants that for the purpose of exception under clause (a) of sub-section (3) of Section 43, the intent of legislature is required to be kept in view. If the ordinary course of business or financial affairs of the transferee (lenders of JAL in the present case) would itself be decisive for exclusion, almost every transfer made to the transferees like the lender-banks/financial institutions would be taken out of the net, which would practically result in frustrating the provision itself25.4. It remains trite that an interpretation that defeats the scheme, intent and object of the statutory provision is to be eschewed and for that matter, if necessary, by applying the principles of purposive interpretation rather than literal25.5. Looking to the scheme and intent of the provisions in question and applying the principles aforesaid, we have no hesitation in accepting the submissions made on behalf of the appellants that the said contents of clause (a) of sub-section (3) of Section 43 call for purposive interpretation so as to ensure that the provision operates in sync with the intention of legislature and achieves the avowed objectives. Therefore, the expression or, appearing as disjunctive between the expressions corporate debtor and transferee, ought to be read as and; so as to be conjunctive of the two expressions i.e., corporate debtor and transferee. Thus read, clause (a) of sub-section (3) of Section 43 shall mean that, for the purposes of sub-section (2), a preference shall not include the transfer made in the ordinary course of the business or financial affairs of the corporate debtor and the transferee. Only by way of such reading of or as and, it could be ensured that the principal focus of the enquiry on dealings and affairs of the corporate debtor is not distracted and remains on its trajectory, so as to reach to the final answer of the core question as to whether corporate debtor has done anything which falls foul of its corporate responsibilities25.6. The result of discussion in the foregoing paragraphs is that the transfers in question could be considered outside the purview of sub-section (2) of Section 43 of the Code only if it could be shown that same were made in the ordinary course of business or financial affairs of the corporate debtor JIL and the transferees. Even if transferees submit that such transfers had been in the ordinary course of their business, the question would still remain if the transfers were made in the ordinary course of business or financial affairs of the corporate debtor JIL so as to fall within the exception provided by clause (a) of sub-section (3) of Section 43 of the Code25.6.2. Taking up the transactions in question, we are clearly of the view that even when furnishing a security may be one of normal business practices, it would become a part of ordinary course of business of a particular corporate entity only if it falls in place as part of the undistinguished common flow of business done; and is not arising out of any special or particular situation, as rightly expressed in Downs Distributing Co (supra). Though we may assumethat the transactions in question were entered in the ordinary course of business of bankers and financial institutions like the present respondents but on the given set of facts, we have not an iota of doubt that the impugned transactions do not fall within the ordinary course of business of the corporate debtor JIL. As noticed, the corporate debtor has been promoted as a special purpose vehicle by JAL for construction and operation of Yamuna Expressway and for development of the parcels of land along with the expressway for residential, commercial and other use. It is difficult to even surmise that the business of JIL, of ensuring execution of the works assigned to its holding company and for execution of housing/building projects, in its ordinary course, had inflated itself to the extent of routinely mortgaging its assets and/or inventories to secure the debts of its holding company. It had also not been the ordinary course of financial affairs of JIL that it would create encumbrances over its properties to secure the debts of its holding company. In other words, we are clearly of the view that the ordinary course of business or financial affairs of the corporate debtor JIL cannot be taken to be that of providing mortgages to secure the loans and facilities obtained by its holding company; and that too at the cost of its own financial health. As noticed, JIL was already reeling under debts with its accounts with some of the lenders having been declared NPA; and it was also under heavy pressure to honour its commitment to the home buyers. In the given circumstances, we have no hesitation in concluding that the transfers in questions were not made in ordinary course of business or financial affairs of the corporate debtor JIL25.7. The submissions that security was disclosed in the Annual Reports or that none of the creditors expressed dissent are of no effect because such disclosure or want of objection by creditors, by themselves, do not operate as estoppel against anybody nor would take the transaction out of the purview of the legal fiction predicated in Section 43, if it is otherwise of a preference at a relevant time. Similarly, the distinction between NPA and wilful default; the submission that NPA could be regularised; and further the submission that the mortgages were created before JIL was declared NPA, are hardly of any bearing on the question as to whether the impugned transactions had been in the ordinary course of business or financial affairs of JIL. Thus, reference to the decisions like that in Keshavlal Khemchand and Jah Developers (supra) is not of any consequence and need not be dilated upon. The answer to this question, in our view, could only be in the negative. That is to say that the impugned transactions had not been in the ordinary course of business or financial affairs of JIL25.8. Therefore, the answer to question (v) as referred in paragraph 20 is that the impugned transactions are not of excepted transfers in terms of sub- section (3) of Section 43 of the Code.The concern expressed by lenders of JAL is legally untenable26. The argument of lenders, that holding the transactions in question as preferential would result in impacting large number of transactions undertaken by the bankers/financial institutions, of financing in the ordinary course of their business; and the consequences may be devastating and irreversible on the economy, has only been noted to be rejected26.1. It needs hardly any emphasis that in the ordinary course of their business, when the bankers or financial institutions examine any proposal for loan or advance or akin facility, they are supposed to, and they indeed, take up the exercise commonly termed as due diligence so as to study the viability of the proposed enterprise as also to ensure, inter alia, that the security against such loan/advance/facility is genuine and adequate; and would be available for enforcement at any point of time. Given the nature of transaction, the lenders must prefer a clean security to justify the transaction as being in the ordinary course of their business. In the same exercise, in the ordinary course of their business, if they are at all entering into a transaction whereby a third party security, including that of a subsidiary company, is to be taken as collateral, they are obliged to undertake further due diligence so as to ensure that such third party security is a prudent and viable one and is not likely to be hit by any law. In that sequence, they remain under obligation to assure themselves that such third party whose security is being taken, is not already indebted or in red and is not likely to fail in dealing with its own indebtedness. In the context of IBC, such requirement is moreover imperative on a bare look at the provisions contained in Part II thereof. Interesting it is to notice on the facts of the present case that in fact, several of the respondent lenders are shown to be the direct creditors of JIL too, to the extent of the advances made to JIL. They and the co-respondents cannot plead ignorance about the actual state of affairs and financial position of JIL. Despite such knowledge, if they chose to take the business risk of accepting security from JIL and that too, for securing the loans/advances/facilities made over to JAL, who was a directly related party of JIL for being its holding company, they themselves remain responsible for present legal consequences. Summation: The transactions in question are hit by Section 43 IBC27. For what has been discussed hereinabove, we are clearly of the view that the transactions in question are hit by Section 43 of the Code and the Adjudicating Authority, having rightly held so, had been justified in issuing necessary directions in terms of Section 44 of the Code in relation to the transactions concerning Property Nos. 1 to 6. NCLAT, in our view, had not been right in interfering with the well-considered and justified order passed by NCLT in this regard.Search and commandeering of preference at a relevant time28. Although we have analysed the transactions in question on the anvil of Section 43 with reference to the submissions made and the facts of the present case but, before moving on to other aspects, we deem it appropriate to point out the manner in which the provisions concerning preference at a relevant time are expected to be applied, particularly by the resolution professional, in a given case. It could be readily recapitulated that as per the charging parts of Section 43 i.e., sub-sections (4) and (2) thereof, a corporate debtor shall be deemed to have given preference at a relevant time if the twin requirements of clauses (a) and (b) of sub-section (2) coupled with the applicable requirements of either clause (a) or clause (b) of sub-section (4), as the case may be, are satisfied. However, even if the requirements of sub- sections (4) and (2) are satisfied, a transaction may not be regarded as an offending preference if it falls in either or both of the exceptions provided by sub-section (3) of Section 4328.1. Looking to the legal fictions created by Section 43 and looking to the duties and responsibilities per Section 25, in our view, for the purpose of application of Section 43 of the Code in any insolvency resolution process, what a resolution professional is ordinarily required to do could be illustrated as follows:1. In the first place, the resolution professional shall have to take two major but distinct steps. One shall be of sifting through the entire cargo of transactions relating to the property or an interest thereof of the corporate debtor backwards from the date of commencement of insolvency and up to the preceding two years. The other distinct step shall be of identifying the persons involved in such transactions and of putting them in two categories; one being of the persons who fall within the definition of related party in terms of Section 5(24) of the Code and another of the remaining persons2. In the next step, the resolution professional ought to identify as to in which of the said transactions of preceding two years, the beneficiary is a related party of the corporate debtor and in which the beneficiary is not a related party. It would lead to bifurcation of the identified transactions into two sub-sets: One concerning related party/parties and other concerning unrelated party/parties with each sub-set requiring different analysis. The sub-set concerning unrelated party/parties shall further be trimmed to include only the transactions of preceding one year from the date of commencement of insolvency3. Having thus obtained two sub-sets of transactions to scan, the steps thereafter would be to examine every transaction in each of these sub-sets to find: (i) as to whether the transaction is of transfer of property or an interest thereof of the corporate debtor; and (ii) as to whether the beneficiary involved in the transaction stands in the capacity of creditor or surety or guarantor qua the corporate debtor. These steps shall lead to shortlisting of such transactions which carry the potential of being preferential4. In the next step, the said shortlisted transactions would be scrutinised to find if the transfer in question is made for or on account of an antecedent financial debt or operational debt or other liability owed by the corporate debtor. The transactions which are so found would be answering to clause (a) of sub-section (2) of Section 435. In yet further step, such of the scanned and scrutinised transactions that are found covered by clause (a) of sub-section (2) of Section 43 shall have to be examined on another touchstone as to whether the transfer in question has the effect of putting such creditor or surety or guarantor in a beneficial position than it would have been in the event of distribution of assets per Section 53 of the Code. If answer to this question is in the affirmative, the transaction under examination shall be deemed to be of preference within a relevant time, provided it does not fall within the exclusion provided by sub-section (3) of Section 436. In the next and equally necessary step, the transaction which otherwise is to be of deemed preference, will have to pass through another filtration to find if it does not answer to either of the clauses (a) and (b) of sub-section (3) of Section 43.7. After the resolution professional has carried out the aforesaid volumetric as also gravimetric analysis of the transactions on the defined coordinates, he shall be required to apply to the Adjudicating Authority for necessary order/s in relation to the transaction/s that had passed through all the positive tests of sub-section (4) and sub-section (2) as also negative test of sub-section (3)28.3. In our view, looking to the legal fictions created by Section 43 and looking to the duties and responsibilities of the resolution professional and the Adjudicating Authority, ordinarily an adherence to the process illustrated hereinabove shall ensure reasonable clarity and less confusion; and would aid in optimum utilization of time in any insolvency resolution processOther aspects of the application made by IRP – allegations of transactions being undervalued and fraudulent29. Having found that the transactions in question cannot be countenanced, for being of preference during a relevant time to a related party; and having approved the order passed by NCLT in that regard, we do not consider it necessary to deal with the other length of arguments advanced by the learned counsel for parties on the questions as to whether the transactions are undervalued and/or fraudulent too. In the totality of circumstances, we would prefer leaving the said questions at that only, while also leaving all the related questions of law open; to be examined in an appropriate case29.1. However, we are impelled to make one comment as regards the application made by IRP. It is noticed that in the present case, the IRP moved one composite application purportedly under Sections 43, 45 and 66 of the Code while alleging that the transactions in question were preferential as also undervalued and fraudulent. In our view, in the scheme of the Code, the parameters and the requisite enquiries as also the consequences in relation to these aspects are different and such difference is explicit in the related provisions. As noticed, the question of intent is not involved in Section 43 and by virtue of legal fiction, upon existence of the given ingredients, a transaction is deemed to be of giving preference at a relevant time. However, whether a transaction is undervalued requires a different enquiry as per Sections 45 and 46 of the Code and significantly, such application can also be made by the creditor under Section 47 of the Code. The consequences of undervaluation are contained in Sections 48 and 49. Per Section 49, if the undervalued transaction is referable to sub-section (2) of Section 45, the Adjudicating Authority may look at the intent to examine if such undervaluation was to defraud the creditors. On the other hand, the provisions of Section 66 related to fraudulent trading and wrongful trading entail the liabilities on the persons responsible therefor. We are not elaborating on all these aspects for being not necessary as the transactions in question are already help preferential and hence, the order for their avoidance is required to be approved; but it appears expedient to observe that the arena and scope of the requisite enquiries, to find if the transaction is undervalued or is intended to defraud the creditors or had been of wrongful/fraudulent trading are entirely different. Specific material facts are required to be pleaded if a transaction is sought to be brought under the mischief sought to be remedied by Sections 45/46/47 or Section 66 of the Code. As noticed, the scope of enquiry in relation to the questions as to whether a transaction is of giving preference at a relevant time, is entirely different. Hence, it would be expected of any resolution professional to keep such requirements in view while making a motion to the Adjudicating Authority29.2. In the present case, it is noticed that NCLT in its detailed and considered order essentially dealt with the features of the transaction in question being preferential at a relevant time but recorded combined findings on all these three aspects that the impugned transactions were preferential, undervalued and fraudulent. Appropriate it would have been to deal with all these aspects separately and distinctively29.3. We are conscious of the fact that IBC is comparatively a new legislation and various aspects expected therein are in the progression of taking proper shape, particularly in the adjudicatory processes envisaged. Having said so, we would leave this aspect at that only, while expecting all the concerned to be more attentive to the scheme, object and requirements of the provisions contained in the CodeSECOND ISSUE: WHETHER LENDERS OF JAL COULD BE CATEGORISED AS FINANCIAL CREDITORS OF JIL30. The discussion and summation in the foregoing paragraphs and conclusion on the first issue itself would have been the end of the matter because the transactions in question stand disapproved as being preferential. However, there remains another significant issue to be adjudicated herein, which, though not adverted to by NCLAT, is indeed involved in these matters30.1. The issue is as to whether the lenders of JAL could be categorised as financial creditors of JIL for the purpose of IBC?31. The issue aforesaid was raised before NCLT by two of the respondent banks namely, ICICI Bank Limited and Axis Bank Limited by way of separate applications under Section 60(5) of the Code, seeking to question the decision of IRP rejecting their claims to be recognized as financial creditors of the corporate debtor JIL on account of the securities provided by JIL for the facilities granted to JAL. The NCLT rejected the applications so filed, by way of its orders dated 09.05.2018 and 15.05.2018 respectively, while concluding that on the strength of the mortgages created by the corporate debtor JIL, as collateral security of the debts of its holding company JAL, the applicants cannot be treated as financial creditors of the corporate debtor JIL31.1. The aforesaid orders dated 09.05.2018 and 15.05.2018 were questioned before NCLAT by the said lenders of JAL in Comp. App (AT) (Ins) No. 353 of 2018 and Comp. App (AT) (Ins) No. 301 of 2018 respectively. These appeals formed part of the bunch of appeals decided by NCLAT by way of the impugned common order dated 01.08.2019 and, as per the final result recorded therein, these two appeals also stand allowed. However, fact of the matter remains that nothing has been discussed by NCLAT in the impugned order dated 01.08.2019 as regards the subject-matter of these two appeals i.e., as to whether the said lenders of JAL could be categorised as financial creditors of JIL or not; and the entire discussion in the impugned order and the final conclusion therein had only been in relation to the order dated 16.05.2018 that was passed by NCLT on the application for avoidance filed by IRP31.2. The appellant of Civil Appeal D. No. 32881 of 2019, IIFCL, apart from raising other contentions, has also questioned this aspect of the order impugned that the aforesaid two appeals, involving the issue as to whether the mortgagees of the corporate debtor could be taken as financial creditors, have been allowed by NCLAT without recording any findings and without any discussion in that regard31.3. Though, ordinarily, such omission in the impugned order dated 01.08.2019 might have resulted in the matter being remitted to the Appellate Tribunal for appropriate consideration and finding but, as aforesaid, in the entire process, adherence to the time limit is also of significance; and in view of the fact that learned counsel for the respective parties have advanced elaborate submissions on the merits of the issue as to whether such lenders of JAL could be treated as financial creditors of the corporate debtor JIL and have invited the decision of this Court, we deem it just, proper and expedient to finally decide the relevant questions in this regard31.4. We may, of course, reiterate that in view of the conclusion that we have reached in relation to the principal issue, the transactions in question are denuded of their value and worth, per the force of the order by NCLT under Section 44 of the Code, which has been approved by us. To be more specific, the security interests created by the corporate debtor JIL over the properties in question stand discharged in whole. Therefore, the respondent-lenders cannot claim any status as creditors of the corporate debtor JIL and there could arise no question of their making any claim to be treated as financial creditors as such34. As noticed, the aforesaid orders dated 09.05.2018 and 15.05.2018 were questioned in two appeals before NCLAT by the said lenders of JAL; and the said appeals stand allowed in the impugned order dated 01.08.2019 without any discussion as regards the issue involved therein. We have heard learned counsel for the parties at length in relation to this issue too, and, in the circumstances of the case, as noticed, we had indicated prima facie view in the order dated 10.12.2019 , that such lenders of JAL cannot be categorised as financial creditors of JIL and had stayed the operation of impugned order to that extent39. As indicated hereinbefore, the law declared by this Court in the case of Swiss Ribbons, while rejecting the contentions that classification between financial creditor and operational creditor was discriminatory and violative of Article 14, shall have some bearing on the claim of the respondent-lenders for being treated as financial creditors of JIL39.3. The enunciation aforementioned illuminates the reasons as to why at all a financial creditor is conferred with a major, rather pivotal, role in the processes contemplated by Part II of the Code. It is the financial creditor who lends finance on a term loan or for working capital that enables the corporate debtor to set up and/or operate its business; and who has specified repayment schedules with default consequences. The most important feature, as this Court has said, is that a financial creditor is, from the very beginning, involved in assessing the viability of the corporate debtor who can, and indeed, engage in restructuring of the loan as well as reorganisation of the corporate debtors business when there is financial stress. Hence, a financial creditor is not only about in terrorem clauses for repayment of dues; it has the unique parental and nursing roles too. In short, the financial creditor is the one whose stakes are intrinsically inter-woven with the well-being of the corporate debtor41.1.6. Read as a whole and with reference to its context, it is but clear that in Pioneer Urban this Court has not enunciated that the scope of the expression financial debt be read as if to encompass any debt of whatsoever nature. Rather, a submission made therein, with reference to the decision in Krishi Utapadan Mandi Samiti, that and includes part in a definition may lead to it being extensive, was rejected by this Court while holding that the said decision was not a good law. However, the other extreme of submissions, seeking restrictive interpretation with reference to means part of the definition, was also not accepted and, in that context, the Court observed that the expression and includes speaks of subject-matters which may not necessarily be reflected in the main part of the definition. Obviously, there could be several subject-matters which may not, as such, be found squarely manifested in the expressions employed in the means part of a definition and could be reasonably found in the includes part. However, it has not been laid down as a rule of statutory interpretation that the includes part could stand alone, disjunct from and totally alien to the means partThe expressions means and includes in the definition clauses - effect42. Looking to the frame of the Code, where the significant expressions financial creditor and financial debt have been defined with the words means and includes, we may further refer to the principles of construction of such a definition clause in a statute. Tersely put, the law remains settled that where a word is defined to mean something, the definition is prime facie restrictive and exhaustive. On the other hand, where the word defined is declared to include something more, the definition is prima facie extensive. However, a little difficulty arises when the definition contains both the words means and includes42.1. As noticed, in the case of Pioneer Urban, a suggestion made on behalf of the respondents with reference to the decision in Krishi Utapadan Mandi Samiti, that when the words means and includes are used in a definition, they are to be given a wider meaning and are not exhaustive or restricted to the items contained therein, was not accepted by this Court; and the statement of law in Krishi Utapadan Mandi Samiti was held to be not that of good law for it ignored the earlier precedents of larger and coordinate Benches and was also out of sync with the later decisions on the same point. However, the other extreme of interpretation, as canvassed by the petitioners, that a financial debt could only be a debt which is disbursed against the consideration for the time value of money, and such requirement pervades all sub-clauses (a) to (i), was also not accepted as a matter of statutory interpretation by this Court while observing that the expression and includes speaks of subject matters which may not necessarily be reflected in the main part of the definition. Thus, it is evident that this Court did not accept either of the extremities suggested by the parties in Pioneer Urban for interpretation and implication of the expressions means and includes in a definition clause of the statute. Significantly, in Pioneer Urban, none of the extremities had any bearing on the conclusion because, eventually, the amendment in question was held to be only clarificatory in nature; and this Court held that the Explanation added to Section 5(8)(f) of the Code by the Amendment Act did not enlarge the scope of the original SectionThe essentials for financial debt and financial creditor43. Applying the aforementioned fundamental principles to the definition occurring in Section 5(8) of the Code, we have not an iota of doubt that for a debt to become financial debt for the purpose of Part II of the Code, the basic elements are that it ought to be a disbursal against the consideration for time value of money. It may include any of the methods for raising money or incurring liability by the modes prescribed in sub-clauses (a) to (f) of Section 5(8); it may also include any derivative transaction or counter-indemnity obligation as per sub-clauses (g) and (h) of Section 5(8); and it may also be the amount of any liability in respect of any of the guarantee or indemnity for any of the items referred to in sub-clauses (a) to (h). The requirement of existence of a debt, which is disbursed against the consideration for the time value of money, in our view, remains an essential part even in respect of any of the transactions/dealings stated in sub-clauses (a) to (i) of Section 5(8), even if it is not necessarily stated therein. In any case, the definition, by its very frame, cannot be read so expansive, rather infinitely wide, that the root requirements of disbursement against the consideration for the time value of money could be forsaken in the manner that any transaction could stand alone to become a financial debt. In other words, any of the transactions stated in the said sub- clauses (a) to (i) of Section 5(8) would be falling within the ambit of financial debt only if it carries the essential elements stated in the principal clause or at least has the features which could be traced to such essential elements in the principal clause. In yet other words, the essential element of disbursal, and that too against the consideration for time value of money, needs to be found in the genesis of any debt before it may be treated as financial debt within the meaning of Section 5(8) of the Code. This debt may be of any nature but a part of it is always required to be carrying, or corresponding to, or at least having some traces of disbursal against consideration for the time value of money44. As noticed, the root requirement for a creditor to become financial creditor for the purpose of Part II of the Code, there must be a financial debt which is owed to that person. He may be the principal creditor to whom the financial debt is owed or he may be an assignee in terms of extended meaning of this definition but, and nevertheless, the requirement of existence of a debt being owed is not forsaken45. It is also evident that what is being dealt with and described in Section 5(7) and in Section 5(8) is the transaction vis-à-vis the corporate debtor. Therefore, for a person to be designated as a financial creditor of the corporate debtor, it has to be shown that the corporate debtor owes a financial debt to such person. Understood this way, it becomes clear that a third party to whom the corporate debtor does not owe a financial debt cannot become its financial creditor for the purpose of Part II of the Code46. Expounding yet further, in our view, the peculiar elements of these expressions financial creditor andfinancial debt, as occurring in Sections 5(7) and 5(8), when visualised and compared with the generic expressions creditor and debt respectively, as occurring in Sections 3(10) and 3(11) of the Code, the scheme of things envisaged by the Code becomes clearer. The generic term creditor is defined to mean any person to whom the debt is owed and then, it has also been made clear that it includes a financial creditor, a secured creditor, an unsecured creditor, an operational creditor, and a decree-holder. Similarly, a debt means a liability or obligation in respect of a claim which is due from any person and this expression has also been given an extended meaning to include a financial debt and an operational debt46.1. The use of the expression means and includes in these clauses, on the very same principles of interpretation as indicated above, makes it clear that for a person to become a creditor, there has to be a debt i.e., a liability or obligation in respect of a claim which may be due from any person. A secured creditor in terms of Section 3(30) means a creditor in whose favour a security interest is created; and security interest, in terms of Section 3(31), means a right, title or interest or claim of property created in favour of or provided for a secured creditor by a transaction which secures payment for the purpose of an obligation and it includes, amongst others, a mortgage. Thus, any mortgage created in favour of a creditor leads to a security interest being created and thereby, the creditor becomes a secured creditor. However, when all the defining clauses are read together and harmoniously, it is clear that the legislature has maintained a distinction amongst the expressions financial creditor, operational creditor, secured creditor and unsecured creditor. Every secured creditor would be a creditor; and every financial creditor would also be a creditor but every secured creditor may not be a financial creditor. As noticed, the expressions financial debt and financial creditor, having their specific and distinct connotations and roles in insolvency and liquidation process of corporate persons, have only been defined in Part II whereas the expressions secured creditor and security interest are defined in Part I47. A conjoint reading of the statutory provisions with the enunciation of this Court in Swiss Ribbons (supra), leaves nothing to doubt that in the scheme of the IBC, what is intended by the expression financial creditor is a person who has direct engagement in the functioning of the corporate debtor; who is involved right from the beginning while assessing the viability of the corporate debtor; who would engage in restructuring of the loan as well as in reorganisation of the corporate debtors business when there is financial stress. In other words, the financial creditor, by its own direct involvement in a functional existence of corporate debtor, acquires unique position, who could be entrusted with the task of ensuring the sustenance and growth of the corporate debtor, akin to that of a guardian. In the context of insolvency resolution process, this class of stakeholders namely, financial creditors, is entrusted by the legislature with such a role that it would look forward to ensure that the corporate debtor is rejuvenated and gets back to its wheels with reasonable capacity of repaying its debts and to attend on its other obligations. Protection of the rights of all other stakeholders, including other creditors, would obviously be concomitant of such resurgence of the corporate debtor47.1. Keeping the objectives of the Code in view, the position and role of a person having only security interest over the assets of the corporate debtor could easily be contrasted with the role of a financial creditor because the former shall have only the interest of realising the value of its security (there being no other stakes involved and least any stake in the corporate debtors growth or equitable liquidation) while the latter would, apart from looking at safeguards of its own interests, would also and simultaneously be interested in rejuvenation, revival and growth of the corporate debtor. Thus understood, it is clear that if the former i.e., a person having only security interest over the assets of the corporate debtor is also included as a financial creditor and thereby allowed to have its say in the processes contemplated by Part II of the Code, the growth and revival of the corporate debtor may be the casualty. Such result would defeat the very objective and purpose of the Code, particularly of the provisions aimed at corporate insolvency resolution47.2. Therefore, we have no hesitation in saying that a person having only security interest over the assets of corporate debtor (like the instant third party securities), even if falling within the description of secured creditor by virtue of collateral security extended by the corporate debtor, would nevertheless stand outside the sect of financial creditors as per the definitions contained in sub- sections (7) and (8) of Section 5 of the Code. Differently put, if a corporate debtor has given its property in mortgage to secure the debts of a third party, it may lead to a mortgage debt and, therefore, it may fall within the definition of debt under Section 3(10) of the Code. However, it would remain a debt alone and cannot partake the character of a financial debt within the meaning of Section 5(8) of the CodeThe respondent mortgagees are not the financial creditors of corporate debtor JIL48. Indisputably, the debts in question are in the form of third party security; said to have been given by the corporate debtor JIL so as to secure the loans/advances/facilities obtained by JAL from the respondent-lenders. Such a debt is not and cannot be a financial debt within the meaning of Section 5(8) of the Code; and hence, the respondent-lenders, the mortgagees, are not the financial creditors of the corporate debtor JILFirst, the submission itself proceeds on the same shortcoming as was existing in the NCLATs decision that was disapproved by this Court in Essar Steel i.e., reading of a line in a judgment disjunct from the context. Secondly, in the decisions above-referred, this Court has never expanded the scope of financial debt as envisaged by Section 5(8) of the Code. Thirdly, the case of an indirect secured creditor i.e., the person having in its hand only the security interest over the property of the corporate debtor but with no corresponding involvement in the finances and growth of the corporate debtor, was never under consideration in the said decisions50.4. We may usefully elaborate a little. On a contextual reading of the expositions in Essar Steel and Swiss Ribbons, it is but clear that the Court had examined the status of direct secured creditor of the corporate debtor and there had not been any occasion to examine the features related with an indirect secured creditor, who is neither involved in assessing the viability of the corporate debtor nor in lending finances to the corporate debtor for setting up the business. As noticed, the prime, rather only, area of interest of such indirect secured creditor is in recovery of its debt and not in reorganization of the corporate debtors business. Thus understood, it is absolutely clear that the class of secured creditors indicated by this Court in Essar Steel and Swiss Ribbons, as being subsumed in financial creditors, is only that of such secured creditors who are directly engaged in advancing credit to the corporate debtor and not the indirect creditors who had extended any loan or facility to a third party but had taken a security from the corporate debtor, whose resolution is under consideration50.5. Hence, we are undoubtedly of the view that the decisions in Swiss Ribbons and Essar Steel do not enure to the benefit of the respondents; rather on the principles enunciated therein, they only operate against the respondents52.3. The proposition aforesaid, being related with the definition of debt as occurring in the said enactment (Act 70 of 1951), cannot have a direct application in the present case. In any event, the said decision cannot be taken as an authority governing the transaction where there is no direct debt of the mortgagor himself53. The other citations, on various terminologies related with mercantile law and mortgage transactions, do not advance the cause of the respondents because of distinct and rather peculiar requirements of Section 5(8) of the Code. Of course, the decision of NCLAT in SREI Infrastructure Finance Limited (supra) stands disapproved for what we have held hereinabove. Equally, the other submissions about the contents of the documents in question as also the entitlement of respondent-lenders to invoke the security or to take up the proceedings under SARFAESI Act etc. do not, in any event, make the transactions in question financial debts within the meaning of Section 5(8) of the Code. Such submissions have only been noted to be rejected54. For what has been discussed hereinabove, on the issue as to whether lenders of JAL could be treated as financial creditors, we hold that such lenders of JAL, on the strength of the mortgages in question, may fall in the category of secured creditors, but such mortgages being neither towards any loan, facility or advance to the corporate debtor nor towards protecting any facility or security of the corporate debtor, it cannot be said that the corporate debtor owes them any financial debt within the meaning of Section 5(8) of the Code; and hence, such lenders of JAL do not fall in the category of the financial creditors of the corporate debtor JIL. | 1 | 54,312 | 11,598 | ### Instruction:
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surety for giving guarantee as provided under Section 127 of the Contract Act. When the creditor abstained from enforcing the claim against the principal debtor because of such promise to create mortgage by the defendant, such forbearance was held to be sufficient and valid consideration. It is difficult to stretch the ratio of the said decision so as to be applied to the issue at hand concerning the definition of financial debt under Section 5(8) of the Code, which conspicuously omits mortgage; and which requires disbursement against the consideration for the time value of money as the lead elements. As said, the respondent- lenders of JAL, while holding the mortgages in their hands, as said to have been executed by the corporate debtor JIL, may be carrying a security interest and may be the creditors who may claim to be falling within the terminology secured creditors, yet cannot become financial creditors of the corporate debtor JIL who is not owing any financial debt to them. The decision in Smt. Kusum does not make out a case in favour of the respondents, the lenders of JAL. 52. Another decision forming the mainstay of the respondents had been that in the case of Rajkumari Kaushalya Devi (supra). The relevant background aspects of the said case had been that the appellant had executed two usufructuary mortgages with respect to the two properties situated in Feroozepore city in favour of the respondent while also taking the same property on lease on the very same date in 1946. On default in effecting payments by the appellant, the respondents filed an application under Section 13 of the Displaced Persons (Debts Adjustment) Act 70 of 1951 seeking recovery of the principal amount together with arrears of rental. While omitting other aspects which may not be relevant, noticeable it is for the present purpose that one of the points for consideration in the case had been as to whether the liability created under the said mortgage was a debt within the meaning of Section 2(6) of the Act 70 of 1951. It was contended on behalf of the appellant that such liability under the mortgage was not a pecuniary liability and, therefore, Section 2(6) did not apply to a mortgage debt. 52.1. The argument aforesaid was rejected by this Court after taking note of the definition of debt as occurring in the said enactment. The principal part of the said definition, relevant for the present purpose read as under:- Debt means any pecuniary liability, whether payable presently or in future, or under a decree or order of civil or revenue court or otherwise, or whether ascertained or to be ascertained, which — *** *** *** 52.2. This Court, inter alia, observed, with reference to the definition aforesaid as occurring in Act 70 of 1951 and the definition of mortgage as occurring in the Transfer of Property Act, as under: 3….The main contention of the appellant in this connection is that a mortgage debt is not a pecuniary liability and therefore does not fall within the definition of debt at all. We are of opinion that there is no force in this contention. The words pecuniary liability will cover any liability which is of a monetary nature. Now the definition of a mortgage in Section 58 of the Transfer of Property Act 4 of 1882, shows that though it is the transfer of an interest in specific immovable property, the purpose of the transfer is to secure the payment of money advanced or to be advanced by way of loan or to secure an existing or future debt or the performance of an engagement which may give rise to a pecuniary liability. The money advanced by way of loan, for example, which is secured by a mortgage, obviously creates a pecuniary liability. It is true that a mortgage in addition to creating the pecuniary liability also transfers interest in the specific immovable property to secure that liability; none the less the loan or debt to secure which the mortgage is created will remain a pecuniary liability of the person creating the mortgage. Therefore a mortgage debt would create a pecuniary liability upon the mortgagor and would be covered by the definition of the word debt in Section 2(6)…. 52.3. The proposition aforesaid, being related with the definition of debt as occurring in the said enactment (Act 70 of 1951), cannot have a direct application in the present case. In any event, the said decision cannot be taken as an authority governing the transaction where there is no direct debt of the mortgagor himself. 53. The other citations, on various terminologies related with mercantile law and mortgage transactions, do not advance the cause of the respondents because of distinct and rather peculiar requirements of Section 5(8) of the Code. Of course, the decision of NCLAT in SREI Infrastructure Finance Limited (supra) stands disapproved for what we have held hereinabove. Equally, the other submissions about the contents of the documents in question as also the entitlement of respondent-lenders to invoke the security or to take up the proceedings under SARFAESI Act etc. do not, in any event, make the transactions in question financial debts within the meaning of Section 5(8) of the Code. Such submissions have only been noted to be rejected. Summation on second issue 54. For what has been discussed hereinabove, on the issue as to whether lenders of JAL could be treated as financial creditors, we hold that such lenders of JAL, on the strength of the mortgages in question, may fall in the category of secured creditors, but such mortgages being neither towards any loan, facility or advance to the corporate debtor nor towards protecting any facility or security of the corporate debtor, it cannot be said that the corporate debtor owes them any financial debt within the meaning of Section 5(8) of the Code; and hence, such lenders of JAL do not fall in the category of the financial creditors of the corporate debtor JIL. Conclusion
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role of a person having only security interest over the assets of the corporate debtor could easily be contrasted with the role of a financial creditor because the former shall have only the interest of realising the value of its security (there being no other stakes involved and least any stake in the corporate debtors growth or equitable liquidation) while the latter would, apart from looking at safeguards of its own interests, would also and simultaneously be interested in rejuvenation, revival and growth of the corporate debtor. Thus understood, it is clear that if the former i.e., a person having only security interest over the assets of the corporate debtor is also included as a financial creditor and thereby allowed to have its say in the processes contemplated by Part II of the Code, the growth and revival of the corporate debtor may be the casualty. Such result would defeat the very objective and purpose of the Code, particularly of the provisions aimed at corporate insolvency resolution47.2. Therefore, we have no hesitation in saying that a person having only security interest over the assets of corporate debtor (like the instant third party securities), even if falling within the description of secured creditor by virtue of collateral security extended by the corporate debtor, would nevertheless stand outside the sect of financial creditors as per the definitions contained in sub- sections (7) and (8) of Section 5 of the Code. Differently put, if a corporate debtor has given its property in mortgage to secure the debts of a third party, it may lead to a mortgage debt and, therefore, it may fall within the definition of debt under Section 3(10) of the Code. However, it would remain a debt alone and cannot partake the character of a financial debt within the meaning of Section 5(8) of the CodeThe respondent mortgagees are not the financial creditors of corporate debtor JIL48. Indisputably, the debts in question are in the form of third party security; said to have been given by the corporate debtor JIL so as to secure the loans/advances/facilities obtained by JAL from the respondent-lenders. Such a debt is not and cannot be a financial debt within the meaning of Section 5(8) of the Code; and hence, the respondent-lenders, the mortgagees, are not the financial creditors of the corporate debtor JILFirst, the submission itself proceeds on the same shortcoming as was existing in the NCLATs decision that was disapproved by this Court in Essar Steel i.e., reading of a line in a judgment disjunct from the context. Secondly, in the decisions above-referred, this Court has never expanded the scope of financial debt as envisaged by Section 5(8) of the Code. Thirdly, the case of an indirect secured creditor i.e., the person having in its hand only the security interest over the property of the corporate debtor but with no corresponding involvement in the finances and growth of the corporate debtor, was never under consideration in the said decisions50.4. We may usefully elaborate a little. On a contextual reading of the expositions in Essar Steel and Swiss Ribbons, it is but clear that the Court had examined the status of direct secured creditor of the corporate debtor and there had not been any occasion to examine the features related with an indirect secured creditor, who is neither involved in assessing the viability of the corporate debtor nor in lending finances to the corporate debtor for setting up the business. As noticed, the prime, rather only, area of interest of such indirect secured creditor is in recovery of its debt and not in reorganization of the corporate debtors business. Thus understood, it is absolutely clear that the class of secured creditors indicated by this Court in Essar Steel and Swiss Ribbons, as being subsumed in financial creditors, is only that of such secured creditors who are directly engaged in advancing credit to the corporate debtor and not the indirect creditors who had extended any loan or facility to a third party but had taken a security from the corporate debtor, whose resolution is under consideration50.5. Hence, we are undoubtedly of the view that the decisions in Swiss Ribbons and Essar Steel do not enure to the benefit of the respondents; rather on the principles enunciated therein, they only operate against the respondents52.3. The proposition aforesaid, being related with the definition of debt as occurring in the said enactment (Act 70 of 1951), cannot have a direct application in the present case. In any event, the said decision cannot be taken as an authority governing the transaction where there is no direct debt of the mortgagor himself53. The other citations, on various terminologies related with mercantile law and mortgage transactions, do not advance the cause of the respondents because of distinct and rather peculiar requirements of Section 5(8) of the Code. Of course, the decision of NCLAT in SREI Infrastructure Finance Limited (supra) stands disapproved for what we have held hereinabove. Equally, the other submissions about the contents of the documents in question as also the entitlement of respondent-lenders to invoke the security or to take up the proceedings under SARFAESI Act etc. do not, in any event, make the transactions in question financial debts within the meaning of Section 5(8) of the Code. Such submissions have only been noted to be rejected54. For what has been discussed hereinabove, on the issue as to whether lenders of JAL could be treated as financial creditors, we hold that such lenders of JAL, on the strength of the mortgages in question, may fall in the category of secured creditors, but such mortgages being neither towards any loan, facility or advance to the corporate debtor nor towards protecting any facility or security of the corporate debtor, it cannot be said that the corporate debtor owes them any financial debt within the meaning of Section 5(8) of the Code; and hence, such lenders of JAL do not fall in the category of the financial creditors of the corporate debtor JIL.
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PRINCIPAL COMMISSIONER OF INCOME TAX(CENTRAL) 1 Vs. NRA IRON AND STEEL PVT. LTD. THROUGH DIRECTOR | which he had with the creditors, his burden stands discharged and the burden then shifts to the revenue to show that though covered by cheques, the amounts in question, actually belonged to, or was owned by the assessee himself (emphasis supplied) vi. In a recent judgment the Delhi High Court CIT v. N.R. Portfolio (P.) Ltd.[2014] 42 taxmann.com 339/222 Taxman 157 (Mag.) (Delhi) held that the credit-worthiness or genuineness of a transaction regarding share application money depends on whether the two parties are related or known to each other, or mode by which parties approached each other, whether the transaction is entered into through written documentation to protect investment, whether the investor was an angel investor, the quantum of money invested, credit-worthiness of the recipient, object and purpose for which payment/investment was made, etc. The incorporation of a company, and payment by banking channel, etc. cannot in all cases tantamount to satisfactory discharge of onus. vii. Other cases where the issue of share application money received by an assessee was examined in the context of Section 68 are CIT v. Divine Leasing & Financing Ltd. (2007) 158 Taxman 440 , and CIT v. Value Capital Service (P.) Ltd. [2008]307 ITR 334 11. The principles which emerge where sums of money are credited as Share Capital/Premium are : i. The assessee is under a legal obligation to prove the genuineness of the transaction, the identity of the creditors, and credit-worthiness of the investors who should have the financial capacity to make the investment in question, to the satisfaction of the AO, so as to discharge the primary onus. ii. The Assessing Officer is duty bound to investigate the credit-worthiness of the creditor/ subscriber, verify the identity of the subscribers, and ascertain whether the transaction is genuine, or these are bogus entries of name-lenders. iii. If the enquiries and investigations reveal that the identity of the creditors to be dubious or doubtful, or lack credit-worthiness, then the genuineness of the transaction would not be established. In such a case, the assessee would not have discharged the primary onus contemplated by Section 68 of the Act.12. In the present case, the A.O. had conducted detailed enquiry which revealed that : i. There was no material on record to prove, or even remotely suggest, that the share application money was received from independent legal entities. The survey revealed that some of the investor companies were non-existent, and had no office at the address mentioned by the assessee. For example: a. The companies Hema Trading Co. Pvt. Ltd. and Eternity Multi Trade Pvt. Ltd. at Mumbai, were found to be non-existent at the address given, and the premises was owned by some other person. b. The companies at Kolkatta did not appear before the A.O., nor did they produce their bank statements to substantiate the source of the funds from which the alleged investments were made. c. The two companies at Guwahati viz. Ispat Sheet Ltd. and Novelty Traders Ltd., were found to be non- existent at the address provided. The genuineness of the transaction was found to be completely doubtful. ii. The enquiries revealed that the investor companies had filed returns for a negligible taxable income, which would show that the investors did not have the financial capacity to invest funds ranging between Rs. 90,00,000 to Rs. 95,00,000 in the Assessment Year 2009-10, for purchase of shares at such a high premium. For example: Neha Cassetes Pvt. Ltd. - Kolkatta had disclosed a taxable income of Rs. 9,744/- for A.Y. 2009-10, but had purchased Shares worth Rs, 90,00,000 in the Assessee Company. Similarly Warner Multimedia Ltd. – Kolkatta filed a NIL return, but had purchased Shares worth Rs. 95,00,000 in the Assessee Company – Respondent. Another example is of Ganga Builders Ltd. – Kolkatta which had filed a return for Rs. 5,850 but invested in shares to the tune of Rs. 90,00,000 in the Assessee Company – Respondent, etc. iii. There was no explanation whatsoever offered as to why the investor companies had applied for shares of the Assessee Company at a high premium of Rs. 190 per share, even though the face value of the share was Rs. 10/- per share. iv. Furthermore, none of the so-called investor companies established the source of funds from which the high share premium was invested. v. The mere mention of the income tax file number of an investor was not sufficient to discharge the onus under Section 68 of the Act. 13. The lower appellate authorities appear to have ignored the detailed findings of the AO from the field enquiry and investigations carried out by his office. The authorities below have erroneously held that merely because the Respondent Company – Assessee had filed all the primary evidence, the onus on the Assessee stood discharged. The lower appellate authorities failed to appreciate that the investor companies which had filed income tax returns with a meagre or nil income had to explain how they had invested such huge sums of money in the Assesse Company - Respondent. Clearly the onus to establish the credit worthiness of the investor companies was not discharged. The entire transaction seemed bogus, and lacked credibility. The Court/Authorities below did not even advert to the field enquiry conducted by the AO which revealed that in several cases the investor companies were found to be non-existent, and the onus to establish the identity of the investor companies, was not discharged by the assessee. 14. The practice of conversion of un-accounted money through the cloak of Share Capital/Premium must be subjected to careful scrutiny. This would be particularly so in the case of private placement of shares, where a higher onus is required to be placed on the Assessee since the information is within the personal knowledge of the Assessee. The Assessee is under a legal obligation to prove the receipt of share capital/premium to the satisfaction of the AO, failure of which, would justify addition of the said amount to the income of the Assessee. | 0[ds]8.2. As per settled law, the initial onus is on the Assessee to establish by cogent evidence the genuineness of the transaction, and credit-worthiness of the investors under Section 68 of the ActThis Court in the land mark case of Kale Khan Mohammad Hanif v. CIT [1963] 50 ITR 1 (SC) and, Roshan Di Hatti v. CIT [1977] 107 ITR (SC) laid down that the onus of proving the source of a sum of money found to have been received by an assessee, is on the assessee. Once the assessee has submitted the documents relating to identity, genuineness of the transaction, and credit-worthiness, then the AO must conduct an inquiry, and call for more details before invoking Section 68. If the Assessee is not able to provide a satisfactory explanation of the nature and source, of the investments made, it is open to the Revenue to hold that it is the income of the assesse, and there would be no further burden on the revenue to show that the income is from any particular source8.3. With respect to the issue of genuineness of transaction, it is for the assessee to prove by cogent and credible evidence, that the investments made in share capital are genuine borrowings, since the facts are exclusively within the assessees knowledge9. The Judgments cited hold that the Assessing Officer ought to conduct an independent enquiry to verify the genuineness of the credit entriesIn the present case, the Assessing Officer made an independent and detailed enquiry, including survey of the so- called investor companies from Mumbai, Kolkata and Guwahati to verify the credit-worthiness of the parties, the source of funds invested, and the genuineness of the transactions. The field reports revealed that the share-holders were either non-existent, or lacked credit-worthiness11. The principles which emerge where sums of money are credited as Share Capital/Premium are :i. The assessee is under a legal obligation to prove the genuineness of the transaction, the identity of the creditors, and credit-worthiness of the investors who should have the financial capacity to make the investment in question, to the satisfaction of the AO, so as to discharge the primary onusii. The Assessing Officer is duty bound to investigate the credit-worthiness of the creditor/ subscriber, verify the identity of the subscribers, and ascertain whether the transaction is genuine, or these are bogus entries of name-lendersiii. If the enquiries and investigations reveal that the identity of the creditors to be dubious or doubtful, or lack credit-worthiness, then the genuineness of the transaction would not be established. In such a case, the assessee would not have discharged the primary onus contemplated by Section 68 of the Act12. In the present case, the A.O. had conducted detailed enquiry which revealed that :i. There was no material on record to prove, or even remotely suggest, that the share application money was received from independent legal entities. The survey revealed that some of the investor companies were non-existent, and had no office at the address mentioned by the assessee. For example:a. The companies Hema Trading Co. Pvt. Ltd. and Eternity Multi Trade Pvt. Ltd. at Mumbai, were found to be non-existent at the address given, and the premises was owned by some other personb. The companies at Kolkatta did not appear before the A.O., nor did they produce their bank statements to substantiate the source of the funds from which the alleged investments were madec. The two companies at Guwahati viz. Ispat Sheet Ltd. and Novelty Traders Ltd., were found to be non- existent at the address providedThe genuineness of the transaction was found to be completely doubtfulii. The enquiries revealed that the investor companies had filed returns for a negligible taxable income, which would show that the investors did not have the financial capacity to invest funds ranging between Rs. 90,00,000 to Rs. 95,00,000 in the Assessment Year 2009-10, for purchase of shares at such a high premiumNeha Cassetes Pvt. Ltd. - Kolkatta had disclosed a taxable income of Rs. 9,744/- for A.Y. 2009-10, but had purchased Shares worth Rs, 90,00,000 in the Assessee CompanySimilarly Warner Multimedia Ltd. – Kolkatta filed a NIL return, but had purchased Shares worth Rs. 95,00,000 in the Assessee Company – RespondentAnother example is of Ganga Builders Ltd. – Kolkatta which had filed a return for Rs. 5,850 but invested in shares to the tune of Rs. 90,00,000 in the Assessee Company – Respondent, etciii. There was no explanation whatsoever offered as to why the investor companies had applied for shares of the Assessee Company at a high premium of Rs. 190 per share, even though the face value of the share was Rs. 10/- per shareiv. Furthermore, none of the so-called investor companies established the source of funds from which the high share premium was investedv. The mere mention of the income tax file number of an investor was not sufficient to discharge the onus under Section 68 of the Act13. The lower appellate authorities appear to have ignored the detailed findings of the AO from the field enquiry and investigations carried out by his office. The authorities below have erroneously held that merely because the Respondent Company – Assessee had filed all the primary evidence, the onus on the Assessee stood dischargedThe lower appellate authorities failed to appreciate that the investor companies which had filed income tax returns with a meagre or nil income had to explain how they had invested such huge sums of money in the Assesse Company - Respondent. Clearly the onus to establish the credit worthiness of the investor companies was not discharged. The entire transaction seemed bogus, and lacked credibilityThe Court/Authorities below did not even advert to the field enquiry conducted by the AO which revealed that in several cases the investor companies were found to be non-existent, and the onus to establish the identity of the investor companies, was not discharged by the assessee14. The practice of conversion of un-accounted money through the cloak of Share Capital/Premium must be subjected to careful scrutiny. This would be particularly so in the case of private placement of shares, where a higher onus is required to be placed on the Assessee since the information is within the personal knowledge of the Assessee. The Assessee is under a legal obligation to prove the receipt of share capital/premium to the satisfaction of the AO, failure of which, would justify addition of the said amount to the income of the Assessee. | 0 | 4,445 | 1,183 | ### 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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which he had with the creditors, his burden stands discharged and the burden then shifts to the revenue to show that though covered by cheques, the amounts in question, actually belonged to, or was owned by the assessee himself (emphasis supplied) vi. In a recent judgment the Delhi High Court CIT v. N.R. Portfolio (P.) Ltd.[2014] 42 taxmann.com 339/222 Taxman 157 (Mag.) (Delhi) held that the credit-worthiness or genuineness of a transaction regarding share application money depends on whether the two parties are related or known to each other, or mode by which parties approached each other, whether the transaction is entered into through written documentation to protect investment, whether the investor was an angel investor, the quantum of money invested, credit-worthiness of the recipient, object and purpose for which payment/investment was made, etc. The incorporation of a company, and payment by banking channel, etc. cannot in all cases tantamount to satisfactory discharge of onus. vii. Other cases where the issue of share application money received by an assessee was examined in the context of Section 68 are CIT v. Divine Leasing & Financing Ltd. (2007) 158 Taxman 440 , and CIT v. Value Capital Service (P.) Ltd. [2008]307 ITR 334 11. The principles which emerge where sums of money are credited as Share Capital/Premium are : i. The assessee is under a legal obligation to prove the genuineness of the transaction, the identity of the creditors, and credit-worthiness of the investors who should have the financial capacity to make the investment in question, to the satisfaction of the AO, so as to discharge the primary onus. ii. The Assessing Officer is duty bound to investigate the credit-worthiness of the creditor/ subscriber, verify the identity of the subscribers, and ascertain whether the transaction is genuine, or these are bogus entries of name-lenders. iii. If the enquiries and investigations reveal that the identity of the creditors to be dubious or doubtful, or lack credit-worthiness, then the genuineness of the transaction would not be established. In such a case, the assessee would not have discharged the primary onus contemplated by Section 68 of the Act.12. In the present case, the A.O. had conducted detailed enquiry which revealed that : i. There was no material on record to prove, or even remotely suggest, that the share application money was received from independent legal entities. The survey revealed that some of the investor companies were non-existent, and had no office at the address mentioned by the assessee. For example: a. The companies Hema Trading Co. Pvt. Ltd. and Eternity Multi Trade Pvt. Ltd. at Mumbai, were found to be non-existent at the address given, and the premises was owned by some other person. b. The companies at Kolkatta did not appear before the A.O., nor did they produce their bank statements to substantiate the source of the funds from which the alleged investments were made. c. The two companies at Guwahati viz. Ispat Sheet Ltd. and Novelty Traders Ltd., were found to be non- existent at the address provided. The genuineness of the transaction was found to be completely doubtful. ii. The enquiries revealed that the investor companies had filed returns for a negligible taxable income, which would show that the investors did not have the financial capacity to invest funds ranging between Rs. 90,00,000 to Rs. 95,00,000 in the Assessment Year 2009-10, for purchase of shares at such a high premium. For example: Neha Cassetes Pvt. Ltd. - Kolkatta had disclosed a taxable income of Rs. 9,744/- for A.Y. 2009-10, but had purchased Shares worth Rs, 90,00,000 in the Assessee Company. Similarly Warner Multimedia Ltd. – Kolkatta filed a NIL return, but had purchased Shares worth Rs. 95,00,000 in the Assessee Company – Respondent. Another example is of Ganga Builders Ltd. – Kolkatta which had filed a return for Rs. 5,850 but invested in shares to the tune of Rs. 90,00,000 in the Assessee Company – Respondent, etc. iii. There was no explanation whatsoever offered as to why the investor companies had applied for shares of the Assessee Company at a high premium of Rs. 190 per share, even though the face value of the share was Rs. 10/- per share. iv. Furthermore, none of the so-called investor companies established the source of funds from which the high share premium was invested. v. The mere mention of the income tax file number of an investor was not sufficient to discharge the onus under Section 68 of the Act. 13. The lower appellate authorities appear to have ignored the detailed findings of the AO from the field enquiry and investigations carried out by his office. The authorities below have erroneously held that merely because the Respondent Company – Assessee had filed all the primary evidence, the onus on the Assessee stood discharged. The lower appellate authorities failed to appreciate that the investor companies which had filed income tax returns with a meagre or nil income had to explain how they had invested such huge sums of money in the Assesse Company - Respondent. Clearly the onus to establish the credit worthiness of the investor companies was not discharged. The entire transaction seemed bogus, and lacked credibility. The Court/Authorities below did not even advert to the field enquiry conducted by the AO which revealed that in several cases the investor companies were found to be non-existent, and the onus to establish the identity of the investor companies, was not discharged by the assessee. 14. The practice of conversion of un-accounted money through the cloak of Share Capital/Premium must be subjected to careful scrutiny. This would be particularly so in the case of private placement of shares, where a higher onus is required to be placed on the Assessee since the information is within the personal knowledge of the Assessee. The Assessee is under a legal obligation to prove the receipt of share capital/premium to the satisfaction of the AO, failure of which, would justify addition of the said amount to the income of the Assessee.
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of a sum of money found to have been received by an assessee, is on the assessee. Once the assessee has submitted the documents relating to identity, genuineness of the transaction, and credit-worthiness, then the AO must conduct an inquiry, and call for more details before invoking Section 68. If the Assessee is not able to provide a satisfactory explanation of the nature and source, of the investments made, it is open to the Revenue to hold that it is the income of the assesse, and there would be no further burden on the revenue to show that the income is from any particular source8.3. With respect to the issue of genuineness of transaction, it is for the assessee to prove by cogent and credible evidence, that the investments made in share capital are genuine borrowings, since the facts are exclusively within the assessees knowledge9. The Judgments cited hold that the Assessing Officer ought to conduct an independent enquiry to verify the genuineness of the credit entriesIn the present case, the Assessing Officer made an independent and detailed enquiry, including survey of the so- called investor companies from Mumbai, Kolkata and Guwahati to verify the credit-worthiness of the parties, the source of funds invested, and the genuineness of the transactions. The field reports revealed that the share-holders were either non-existent, or lacked credit-worthiness11. The principles which emerge where sums of money are credited as Share Capital/Premium are :i. The assessee is under a legal obligation to prove the genuineness of the transaction, the identity of the creditors, and credit-worthiness of the investors who should have the financial capacity to make the investment in question, to the satisfaction of the AO, so as to discharge the primary onusii. The Assessing Officer is duty bound to investigate the credit-worthiness of the creditor/ subscriber, verify the identity of the subscribers, and ascertain whether the transaction is genuine, or these are bogus entries of name-lendersiii. If the enquiries and investigations reveal that the identity of the creditors to be dubious or doubtful, or lack credit-worthiness, then the genuineness of the transaction would not be established. In such a case, the assessee would not have discharged the primary onus contemplated by Section 68 of the Act12. In the present case, the A.O. had conducted detailed enquiry which revealed that :i. There was no material on record to prove, or even remotely suggest, that the share application money was received from independent legal entities. The survey revealed that some of the investor companies were non-existent, and had no office at the address mentioned by the assessee. For example:a. The companies Hema Trading Co. Pvt. Ltd. and Eternity Multi Trade Pvt. Ltd. at Mumbai, were found to be non-existent at the address given, and the premises was owned by some other personb. The companies at Kolkatta did not appear before the A.O., nor did they produce their bank statements to substantiate the source of the funds from which the alleged investments were madec. The two companies at Guwahati viz. Ispat Sheet Ltd. and Novelty Traders Ltd., were found to be non- existent at the address providedThe genuineness of the transaction was found to be completely doubtfulii. The enquiries revealed that the investor companies had filed returns for a negligible taxable income, which would show that the investors did not have the financial capacity to invest funds ranging between Rs. 90,00,000 to Rs. 95,00,000 in the Assessment Year 2009-10, for purchase of shares at such a high premiumNeha Cassetes Pvt. Ltd. - Kolkatta had disclosed a taxable income of Rs. 9,744/- for A.Y. 2009-10, but had purchased Shares worth Rs, 90,00,000 in the Assessee CompanySimilarly Warner Multimedia Ltd. – Kolkatta filed a NIL return, but had purchased Shares worth Rs. 95,00,000 in the Assessee Company – RespondentAnother example is of Ganga Builders Ltd. – Kolkatta which had filed a return for Rs. 5,850 but invested in shares to the tune of Rs. 90,00,000 in the Assessee Company – Respondent, etciii. There was no explanation whatsoever offered as to why the investor companies had applied for shares of the Assessee Company at a high premium of Rs. 190 per share, even though the face value of the share was Rs. 10/- per shareiv. Furthermore, none of the so-called investor companies established the source of funds from which the high share premium was investedv. The mere mention of the income tax file number of an investor was not sufficient to discharge the onus under Section 68 of the Act13. The lower appellate authorities appear to have ignored the detailed findings of the AO from the field enquiry and investigations carried out by his office. The authorities below have erroneously held that merely because the Respondent Company – Assessee had filed all the primary evidence, the onus on the Assessee stood dischargedThe lower appellate authorities failed to appreciate that the investor companies which had filed income tax returns with a meagre or nil income had to explain how they had invested such huge sums of money in the Assesse Company - Respondent. Clearly the onus to establish the credit worthiness of the investor companies was not discharged. The entire transaction seemed bogus, and lacked credibilityThe Court/Authorities below did not even advert to the field enquiry conducted by the AO which revealed that in several cases the investor companies were found to be non-existent, and the onus to establish the identity of the investor companies, was not discharged by the assessee14. The practice of conversion of un-accounted money through the cloak of Share Capital/Premium must be subjected to careful scrutiny. This would be particularly so in the case of private placement of shares, where a higher onus is required to be placed on the Assessee since the information is within the personal knowledge of the Assessee. The Assessee is under a legal obligation to prove the receipt of share capital/premium to the satisfaction of the AO, failure of which, would justify addition of the said amount to the income of the Assessee.
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Macquarie Bank Ltd Vs. Shilpi Cable Technologies Ltd | sent on behalf of an operational creditor by a lawyer would be in order. 37. However, Dr. Singhvi referred to Rule 4 of the Debts Recovery Rules and Section 434(2) of the Companies Act, 1956, which state as follows: "4. Procedure for filing applications.-(1) The application under section 19 or section 31A, or under section 30(1) of the Act may be presented as nearly as possible in Form-I, Form-II and Form-III respectively annexed to these rules by the applicant in person or by his agent or by a duly authorised legal practitioner to the Registrar of the Bench within whose jurisdiction his case falls or shall be sent by registered post addressed to the Registrar.(2) An application sent by post under sub-rule (1) shall be deemed to have been presented to the Registrar the day on which it was received in the office of the Registrar.(3) The application under sub-rule (1) shall be presented in two sets, in a paper book along with an empty file size envelope bearing full address of the defendant and where the number of defendants is more than one, then sufficient number of extra paper-books together with empty file size envelopes bearing full address of each of the defendant shall be furnished by the applicant.xxx xxx xxx434. COMPANY WHEN DEEMED UNABLE TO PAY ITS DEBTS-(2) The demand referred to in clause (a) of sub-section (1) shall be deemed to have been duly given under the hand of the creditor if it is signed by any agent or legal adviser duly authorised on his behalf, or in the case of a firm, if it is signed by any such agent or legal adviser or by any member of the firm."The argument then made was that when Parliament wishes to include a lawyer for the purposes of litigation or to a pre-litigation stage, it expressly so provides, and this not being so in the Code, it must be inferred that lawyers are excluded when it comes to issuing notices under Section 8 of the Code. We are afraid that this argument must be rejected, not only in view of what has been held by us on a reading of the Code and on the harmonious construction of Section 30 of the Advocates Act read with the Code, but also on the basis of a judgment of this Court in Byram Pestonji Gariwala v. Union Bank of India, (1992) 1 SCC 31 at 47-48. In this judgment, what fell for consideration was Order XXIII Rule 3 of the Code of Civil Procedure, 1908 after its amendment in 1976. It was argued in that case that a compromise in a suit had, under Order XXIII Rule 3, to be in writing and "signed by the parties". It was, therefore, argued that a compromise effected by counsel on behalf of his client would not be effective in law, unless the party himself signed the compromise. This was turned down stating that Courts in India have consistently recognized the traditional role of lawyers and the extent and nature of the implied authority to act on behalf of their clients, which included compromising matters on behalf of their clients. The Court held there is no reason to assume that the legislature intended to curtail such implied authority of counsel. It then went on to hold:"38. Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in court by elimination of uncertainties and enlargement of the scope of compromise.39. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duly authorised representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client. Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.40. Accordingly, we are of the view that the words in writing and signed by the parties, inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of Order III Rule 1 CPC:"any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf:Provided that any such appearance shall, if the court so directs, be made by the party in person." 38. Just as has been held in Gariwala (supra), the expression "an operational creditor may on the occurrence of a default deliver a demand notice....." under Section 8 of the Code must be read as including an operational creditors authorized agent and lawyer, as has been fleshed out in Forms 3 and 5 appended to the Adjudicatory Authority Rules. | 1[ds]11. The first thing to be noticed on a conjoint reading of Sections 8 and 9 of the Code, as explained in Mobilox Innovations Private Limited v. Kirusa Software Private Limited, Civil Appeal No. 9405 of 2017 decided on 21.9.2017, at paragraphs 33 to 36, is that Section 9(1) contains the conditions precedent for triggering the Code insofar as an operational creditor is concerned.It is only when these conditions are met that an application may then be filed under Section 9(2) of the Code in the prescribed manner, accompanied with such fee as has been prescribed. Under Section 9(3), what is clear is that, along with the application, certain other information is also to beunder Section 9(3)(a), a copy of the invoice demanding payment or demand notice delivered by the operational creditor to the corporate debtor is to be furnished. We may only indicate that under Rules 5 and 6 of the Adjudicating Authority Rules, read with Forms 3 and 5, it is clear that, as Annexure I thereto, the application in any case must have a copy of the invoice/demand notice attached to the application. That this is a mandatory condition precedent to the filing of an application is clear from a conjoint reading of sections 8 and 9(1) of the Code.13. When we come to Section 9(3)(b), it is obvious that an affidavit to the effect that there is no notice given by the corporate debtor relating to a dispute of the unpaid operational debt can only be in a situation where the corporate debtor has not, within the period of 10 days, sent the requisite notice by way of reply to the operational creditor. In a case where such notice has, in fact, been sent in reply by the corporate debtor, obviously an affidavit to that effect cannot be given.14. When we come to(c) of Section 9(3), it is equally clear that a copy of the certificate from the financial institution maintaining accounts of the operational creditor confirming that there is no payment of an unpaid operational debt by the corporate debtor is certainly not a condition precedent to triggering the insolvency process under the Code. The expression "confirming" makes it clear that this is only a piece of evidence, albeit a very important piece of evidence, which only "confirms" that there is no payment of an unpaid operational debt. This becomes clearer when we go to(d) of Section 9(3) which requires such other information as may be specified has also to be furnished along with the application.15. When Form 5 under Rule 6 is perused, it becomes clear that Part V thereof speaks of particulars of the operational debt. There are 8 entries in Part V dealing with documents, records and evidence of default. Item 7 of Part V is only one of such documents and has to be read along with Item 8, which speaks of other documents in order to prove the existence of an operational debt and the amount in default. Further, annexure III in the Form also speaks of copies of relevant accounts kept by banks/financial institutions maintaining accounts of the operational creditor, confirming that there is no payment of the unpaid operational debt, only "if available".This would show that such accounts are not ato trigger the Code, and that if such accounts are not available, a certificate based on such accounts cannot be given, if Section 9 is to be read the Adjudicating Authority Rules and the Forms therein, all of which set out the statutory conditions necessary to invoke thethe present case, the rules merely flesh out what is already contained in the statute and must, therefore, be construed along with the statute. Read with the Code, they form acode being contemporanea expositio by the Executive which is charged with carrying out the provisions of the Code. The true construction of Section 9(3)(c) is that it is a procedural provision, which is directory in nature, as the Adjudicatory Authority Rules read with the Code clearly demonstrate.17. There may be situations of operational creditors who may have dealings with a financial institution as defined in Section 3(14) of the Code. There may also be situations where an operational creditor may have as his banker abank, for example, in which case, it would be impossible for him to fulfill the aforesaid condition. A foreign supplier or assignee of such supplier may have a foreign banker who is not within Section 3(14) of the Code.The fact that such foreign supplier is an operational creditor is established from a reading of the definition of "person" contained in section 3(23), as including persons resident outside India, together with the definition of "operational creditor" contained in Section 5(20), which in turn is defined as "a person to whom an operational debt is owed and includes any person to whom such debt has been legally assigned or transferred". That such person may have a bank/financial institution with whom it deals and which is not contained within the definition of Section 3(14) of the Code would show that Section 9(3)(c) in such a case would, if Dr. Singhvi is right about thebeing a condition precedent, amount to a threshold bar to proceeding further under the Code.The Code cannot be construed in a discriminatory fashion so as to include only those operational creditors who are residents outside India who happen to bank with financial institutions which may be included under Section 3(14) of the Code. It is no answer to state that such person can approach the Central Government to include its foreign banker under Section 3(14) of the Code, for the Central Government may never do so. Equally, Dr. Singhvis other argument that such persons ought to be left out of the triggering of the Code against their corporate debtor, despite being operational creditors as defined, would not sound well with Article 14 of the Constitution, which applies to all persons including foreigners. Therefore, as the facts of these cases show, a so called condition precedent impossible of compliance cannot be put as a threshold bar to the processing of an application under Section 9 of the Code.18. However, it was argued that there are various other categories of creditors who cannot file insolvency petitions, such as government authorities who have pending tax dues. Such authorities have ample powers under taxation statutes to coercively collect outstanding tax arrears. Besides they form a class, as a whole, who are kept out of the Code, unlike persons who are resident outside India who, though being operational creditors, are artificially divided, if we are to accept Dr. Singhvis argument, into twonamely, those who bank with an institution that is recognized by Section 3(14) of the Code and those who do not. This argument also does not commend itself to us.19. It is true that the expression "initiation" contained in the marginal note to Section 9 does indicate the drift of the provision, but from such drift, to build an argument that the expression "initiation" would lead to the conclusion that Section 9(3) contains mandatory conditions precedent before which the Code can be triggered is a long shot. Equally, the expression "shall" in Section 9(3) does not take us much further when it is clear that Section 9(3)(c) becomes impossible of compliance in cases like the present. It would amount to a situation wherein serious general inconvenience would be caused to innocent persons, such as the appellant, without very much furthering the object of the Act, as has been held in the State of Haryana v. Raghubir Dayal (1995) 1 SCC 133 at paragraph 5 and obviously, therefore, Section 9(3)(c) would have to be construed as being directory in nature.20. Even otherwise, the important condition precedent is an occurrence of a default, which can be proved, as has been stated hereinabove, by means of other documentary evidence. Take for example the case of an earlier letter written by the corporate debtor to the operational creditor confirming that a particular operational debt is due and payable. This piece of evidence would be sufficient to demonstrate that such debt is due and that default has taken place, as may have been admitted by the corporate debtor. If Dr. Singhvis submissions were to be accepted, despite the availability of such documentary evidence contained in the Section 9 application as other information as may be specified, such application filed under Section 9 would yet have to be rejected because there is no copy of the requisite certificate under Section 9(3)(c). Obviously, such an absurd result militates against such a provision being construed as mandatory.21. It is unnecessary to further refer to arguments made on the footing that Section 7 qua financial creditors has a process which is different from that of operational creditors under Sections 8 and 9 of the Code. The fact that there is no requirement of a bank certificate under Section 7 of the Code, as compared to Section 9, does not take us very much further.It was also submitted that Sections 65 and 76 of the Code provide for criminal prosecution against banks issuing false bank certificates and that a foreign bank issuing such a certificate may not be amenable to the jurisdiction of the Code. It is unnecessary to answer this submission in view of the fact that the necessity for such a certificate has itself been held by this judgment to be directory in nature.23. Equally, Dr. Singhvis argument that the Code leads to very drastic action being taken once an application for insolvency is filed and admitted and that, therefore, all conditions precedent must be strictly construed is also not in sync with the recent trend ofit is clear that for the reasons stated by us above, a fair construction of Section 9(3)(c), in consonance with the object sought to be achieved by the Code, would lead to the conclusion that it cannot be construed as a threshold bar or a condition precedent as has been contended by Dr. Singhvi.25. Dr. Singhvi then argued that the application of the principle in Taylor (supra) should be followed when it comes to the correct interpretation of Section 9(3)(c) of thethat case, the Privy Council held that Sections 164 and 364 of the Code of Criminal Procedure, 1898 prescribed the mode in which confessions are to be recorded by Magistrates, when made during investigation, and a confession before a Magistrate not recorded in the manner provided was inadmissible.This judgment applies on all fours to the facts of the present case inasmuch as, like Section 129A(8) of the aforesaid Act, proof of the existence of a debt and a default in relation to such debt can be proved by other documentary evidence, as is specifically contemplated by Section 9(3)(d) of the Code. Like Section 66(2) of the aforesaid Act in Ukha Kolhe (supra), Section 8 of the Code does not prescribe any particular method of proof of occurrence of default. Consequently, we are of the opinion that the principle contained in Taylor (supra) does not apply in the present situation.Insofar as the second point is concerned, the first thing that is to be noticed is that Section 8 of the Code speaks of an operational creditor delivering a demand notice. It is clear that had the legislature wished to restrict such demand notice being sent by the operational creditor himself, the expression used would perhaps have been "issued" and not "delivered". Delivery, therefore, would postulate that such notice could be made by an authorized agent. In fact, in Forms 3 and 5 extracted hereinabove, it is clear that this is the understanding of the draftsman of the Adjudicatory Authority Rules, because the signature of the person "authorized to act" on behalf of the operational creditor must be appended to both the demand notice as well as the application under Section 9 of the Code. The position further becomes clear that both forms require such authorized agent to state his position with or in relation to the operational creditor. A position with the operational creditor would perhaps be a position in the company or firm of the operational creditor, but the expression "in relation to" is significant. It is a very wide expression, as has been held in Renusagar Power Co. Ltd. v. General Electric Co., (1984) 4 SCC 679 at 704 and State of Karnataka v. Azad Coach Builders (P) Ltd. (2010) 9 SCC 524 at 535, which specifically includes a position which is outside or indirectly related to the operational creditor. It is clear, therefore, that both the expression "authorized to act" and "position in relation to the operational creditor" go to show that an authorized agent or a 59 lawyer acting on behalf of his client is included within the aforesaid expression.te clause contained in Section 238 of the Code will not override the Advocates Act as there is no inconsistency between Section 9, read with the Adjudicating Authority Rules and Forms referred to hereinabove, and the Advocatesthere is no clear disharmony between the two Parliamentary statutes in the present case which cannot be resolved by harmonious interpretation, it is clear that both statutes must be read together. Also, we must not forget that Section 30 of the Advocates Act deals with the fundamental right under Article 19(1)(g) of the Constitution to practice ones profession. Therefore, a conjoint reading of Section 30 of the Advocates Act and Sections 8 and 9 of the Code together with the Adjudicatory Authority Rules and Forms thereunder would yield the result that a notice sent on behalf of an operational creditor by a lawyer would be in order.Just as has been held in Gariwala (supra), the expression "an operational creditor may on the occurrence of a default deliver a demand notice....." under Section 8 of the Code must be read as including an operational creditors authorized agent and lawyer, as has been fleshed out in Forms 3 and 5 appended to the Adjudicatory Authority Rules. | 1 | 17,572 | 2,675 | ### Instruction:
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sent on behalf of an operational creditor by a lawyer would be in order. 37. However, Dr. Singhvi referred to Rule 4 of the Debts Recovery Rules and Section 434(2) of the Companies Act, 1956, which state as follows: "4. Procedure for filing applications.-(1) The application under section 19 or section 31A, or under section 30(1) of the Act may be presented as nearly as possible in Form-I, Form-II and Form-III respectively annexed to these rules by the applicant in person or by his agent or by a duly authorised legal practitioner to the Registrar of the Bench within whose jurisdiction his case falls or shall be sent by registered post addressed to the Registrar.(2) An application sent by post under sub-rule (1) shall be deemed to have been presented to the Registrar the day on which it was received in the office of the Registrar.(3) The application under sub-rule (1) shall be presented in two sets, in a paper book along with an empty file size envelope bearing full address of the defendant and where the number of defendants is more than one, then sufficient number of extra paper-books together with empty file size envelopes bearing full address of each of the defendant shall be furnished by the applicant.xxx xxx xxx434. COMPANY WHEN DEEMED UNABLE TO PAY ITS DEBTS-(2) The demand referred to in clause (a) of sub-section (1) shall be deemed to have been duly given under the hand of the creditor if it is signed by any agent or legal adviser duly authorised on his behalf, or in the case of a firm, if it is signed by any such agent or legal adviser or by any member of the firm."The argument then made was that when Parliament wishes to include a lawyer for the purposes of litigation or to a pre-litigation stage, it expressly so provides, and this not being so in the Code, it must be inferred that lawyers are excluded when it comes to issuing notices under Section 8 of the Code. We are afraid that this argument must be rejected, not only in view of what has been held by us on a reading of the Code and on the harmonious construction of Section 30 of the Advocates Act read with the Code, but also on the basis of a judgment of this Court in Byram Pestonji Gariwala v. Union Bank of India, (1992) 1 SCC 31 at 47-48. In this judgment, what fell for consideration was Order XXIII Rule 3 of the Code of Civil Procedure, 1908 after its amendment in 1976. It was argued in that case that a compromise in a suit had, under Order XXIII Rule 3, to be in writing and "signed by the parties". It was, therefore, argued that a compromise effected by counsel on behalf of his client would not be effective in law, unless the party himself signed the compromise. This was turned down stating that Courts in India have consistently recognized the traditional role of lawyers and the extent and nature of the implied authority to act on behalf of their clients, which included compromising matters on behalf of their clients. The Court held there is no reason to assume that the legislature intended to curtail such implied authority of counsel. It then went on to hold:"38. Considering the traditionally recognised role of counsel in the common law system, and the evil sought to be remedied by Parliament by the C.P.C. (Amendment) Act, 1976, namely, attainment of certainty and expeditious disposal of cases by reducing the terms of compromise to writing signed by the parties, and allowing the compromise decree to comprehend even matters falling outside the subject matter of the suit, but relating to the parties, the legislature cannot, in the absence of express words to such effect, be presumed to have disallowed the parties to enter into a compromise by counsel in their cause or by their duly authorised agents. Any such presumption would be inconsistent with the legislative object of attaining quick reduction of arrears in court by elimination of uncertainties and enlargement of the scope of compromise.39. To insist upon the party himself personally signing the agreement or compromise would often cause undue delay, loss and inconvenience, especially in the case of non-resident persons. It has always been universally understood that a party can always act by his duly authorised representative. If a power-of-attorney holder can enter into an agreement or compromise on behalf of his principal, so can counsel, possessed of the requisite authorisation by vakalatnama, act on behalf of his client. Not to recognise such capacity is not only to cause much inconvenience and loss to the parties personally, but also to delay the progress of proceedings in court. If the legislature had intended to make such a fundamental change, even at the risk of delay, inconvenience and needless expenditure, it would have expressly so stated.40. Accordingly, we are of the view that the words in writing and signed by the parties, inserted by the C.P.C. (Amendment) Act, 1976, must necessarily mean, to borrow the language of Order III Rule 1 CPC:"any appearance, application or act in or to any court, required or authorized by law to be made or done by a party in such court, may except where otherwise expressly provided by any law for the time being in force, be made or done by the party in person, or by his recognized agent, or by a pleader, appearing, applying or acting as the case may be, on his behalf:Provided that any such appearance shall, if the court so directs, be made by the party in person." 38. Just as has been held in Gariwala (supra), the expression "an operational creditor may on the occurrence of a default deliver a demand notice....." under Section 8 of the Code must be read as including an operational creditors authorized agent and lawyer, as has been fleshed out in Forms 3 and 5 appended to the Adjudicatory Authority Rules.
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creditor confirming that a particular operational debt is due and payable. This piece of evidence would be sufficient to demonstrate that such debt is due and that default has taken place, as may have been admitted by the corporate debtor. If Dr. Singhvis submissions were to be accepted, despite the availability of such documentary evidence contained in the Section 9 application as other information as may be specified, such application filed under Section 9 would yet have to be rejected because there is no copy of the requisite certificate under Section 9(3)(c). Obviously, such an absurd result militates against such a provision being construed as mandatory.21. It is unnecessary to further refer to arguments made on the footing that Section 7 qua financial creditors has a process which is different from that of operational creditors under Sections 8 and 9 of the Code. The fact that there is no requirement of a bank certificate under Section 7 of the Code, as compared to Section 9, does not take us very much further.It was also submitted that Sections 65 and 76 of the Code provide for criminal prosecution against banks issuing false bank certificates and that a foreign bank issuing such a certificate may not be amenable to the jurisdiction of the Code. It is unnecessary to answer this submission in view of the fact that the necessity for such a certificate has itself been held by this judgment to be directory in nature.23. Equally, Dr. Singhvis argument that the Code leads to very drastic action being taken once an application for insolvency is filed and admitted and that, therefore, all conditions precedent must be strictly construed is also not in sync with the recent trend ofit is clear that for the reasons stated by us above, a fair construction of Section 9(3)(c), in consonance with the object sought to be achieved by the Code, would lead to the conclusion that it cannot be construed as a threshold bar or a condition precedent as has been contended by Dr. Singhvi.25. Dr. Singhvi then argued that the application of the principle in Taylor (supra) should be followed when it comes to the correct interpretation of Section 9(3)(c) of thethat case, the Privy Council held that Sections 164 and 364 of the Code of Criminal Procedure, 1898 prescribed the mode in which confessions are to be recorded by Magistrates, when made during investigation, and a confession before a Magistrate not recorded in the manner provided was inadmissible.This judgment applies on all fours to the facts of the present case inasmuch as, like Section 129A(8) of the aforesaid Act, proof of the existence of a debt and a default in relation to such debt can be proved by other documentary evidence, as is specifically contemplated by Section 9(3)(d) of the Code. Like Section 66(2) of the aforesaid Act in Ukha Kolhe (supra), Section 8 of the Code does not prescribe any particular method of proof of occurrence of default. Consequently, we are of the opinion that the principle contained in Taylor (supra) does not apply in the present situation.Insofar as the second point is concerned, the first thing that is to be noticed is that Section 8 of the Code speaks of an operational creditor delivering a demand notice. It is clear that had the legislature wished to restrict such demand notice being sent by the operational creditor himself, the expression used would perhaps have been "issued" and not "delivered". Delivery, therefore, would postulate that such notice could be made by an authorized agent. In fact, in Forms 3 and 5 extracted hereinabove, it is clear that this is the understanding of the draftsman of the Adjudicatory Authority Rules, because the signature of the person "authorized to act" on behalf of the operational creditor must be appended to both the demand notice as well as the application under Section 9 of the Code. The position further becomes clear that both forms require such authorized agent to state his position with or in relation to the operational creditor. A position with the operational creditor would perhaps be a position in the company or firm of the operational creditor, but the expression "in relation to" is significant. It is a very wide expression, as has been held in Renusagar Power Co. Ltd. v. General Electric Co., (1984) 4 SCC 679 at 704 and State of Karnataka v. Azad Coach Builders (P) Ltd. (2010) 9 SCC 524 at 535, which specifically includes a position which is outside or indirectly related to the operational creditor. It is clear, therefore, that both the expression "authorized to act" and "position in relation to the operational creditor" go to show that an authorized agent or a 59 lawyer acting on behalf of his client is included within the aforesaid expression.te clause contained in Section 238 of the Code will not override the Advocates Act as there is no inconsistency between Section 9, read with the Adjudicating Authority Rules and Forms referred to hereinabove, and the Advocatesthere is no clear disharmony between the two Parliamentary statutes in the present case which cannot be resolved by harmonious interpretation, it is clear that both statutes must be read together. Also, we must not forget that Section 30 of the Advocates Act deals with the fundamental right under Article 19(1)(g) of the Constitution to practice ones profession. Therefore, a conjoint reading of Section 30 of the Advocates Act and Sections 8 and 9 of the Code together with the Adjudicatory Authority Rules and Forms thereunder would yield the result that a notice sent on behalf of an operational creditor by a lawyer would be in order.Just as has been held in Gariwala (supra), the expression "an operational creditor may on the occurrence of a default deliver a demand notice....." under Section 8 of the Code must be read as including an operational creditors authorized agent and lawyer, as has been fleshed out in Forms 3 and 5 appended to the Adjudicatory Authority Rules.
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Delhi Development Authority Vs. Islamuddin | Kurian, J.1. Leave granted.2. The appellant - Delhi Development Authority is aggrieved by the Judgment dated 22.12.2014 passed by the High Court of Delhi, whereby the High Court declared that the acquisition proceedings in question have lapsed on account of operation of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short, "2013 Act").3. In the case before us, the High Court has taken note of the fact that the compensation has never been paid to the owners. Be that as it may, the main contention urged is that the writ petitioner has no locus standi to file a Writ Petition for the declaration that the proceedings have lapsed.4. Heavy reliance is placed on a decision of this Court in Star Wire (India) Ltd. v. State of Haryana and Others, reported in (1996) 11 SCC 698. It was a case where the land acquisition proceedings were initiated under Section 4(1) of the Land Acquisition Act, 1894 (in short, "1894 Act"). The Notification was issued on 01.06.1976. Section 6 Declaration was published on 16.02.1977 and the Award was passed on 03.07.1981. Section 18 Reference had also become final. Thereafter, the Writ Petition was filed on 21.01.1994. The Writ Petitioner therein contended that he was the person who had purchased the property after the Section 4(1) Notification was issued. In that context, it was held that "Any encumbrance created by the erstwhile owner of the land after publication of the notification under Section 4(1) does not bind the State if the possession of the land is already taken over, after the award came to be passed." It was also held that such a purchaser does not acquire any valid title and in such circumstances, it was held that those subsequent purchasers have no right to challenge the acquisition proceedings, much less the Award.5. Under the Delhi Lands (Restrictions on Transfer) Act, 1972, restriction on transfer is only after the Declaration under Section 6(1) of the 1894 Act is published. There is also a prohibition under Section 3 which pertains to transfer of land already acquired by Central Government. What is relevant is Section 4, which reads as follows :-"4. Regulation on transfer of lands in relation to which acquisition proceedings have been initiated - No person shall, except with the previous permission in writing of the competent authority, transfer or purport to transfer by sale, mortgage, gift, lease or otherwise any land or part thereof situated in the Union Territory of Delhi, which is proposed to be acquired in connection with the Scheme and in relation to which a declaration to the effect that such land or part thereof is needed for a public purpose having been made by the Central Government under section 6 of the Land Acquisition Act, 1894, the Central Government has not withdrawn from the acquisition under section 48 of that Act."6. Section 9 deals with penalty for contravention of the provisions of Section 3 or Section 4. Therefore, under the statutory scheme, the restriction on transfer is only after publication of Notification under Section 6 of the 1894 Act. Being a special law as far as Delhi is concerned, this will, in no case, prevail over any other general law on restriction on transfer after initiation of acquisition proceedings.7. In the instant case, the property is situated in Delhi and the contention of the appellant on locus standi is based on the alleged void transfer after initiation of the land acquisition proceedings. Such transfers would be void in Delhi only in case the same is made after the declaration under Section 6(1). In the instant case, the transfer is prior to Section 6(1) declaration, though after Section 4(1). Therefore, there is no merit in the contention advanced by the appellant that the writ petitioners did not have any locus standi to challenge the land acquisition.8. The writ petitioner approached the High Court contending that neither the compensation was paid nor the possession taken and hence, sought for a declaration under Section 24(2) of the 2013 Act. The benefit under Section 24(2) of the 2013 Act is available in the event of two circumstances - (i) The compensation has not been paid though the Award has been passed under the provisions of the 1894 Act prior to 01.01.2014; (ii) Despite passing an Award and payment of compensation, possession had not been taken five years prior to 01.01.2014. As far as the compensation part is concerned, there is no dispute that the same has not been paid. Hence, the writ petitioner is entitled to have the declaration under Section 24(2) of the 2013 Act. Since the respondent cannot be non-suited on the ground that he has no locus standi, there is no merit in the appeal and it is, accordingly, dismissed.9. In the peculiar facts and circumstances of this case, the appellant is given a period of one year to exercise its liberty granted under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 for initiation of the acquisition proceedings afresh. | 1[ds]7. In the instant case, the property is situated in Delhi and the contention of the appellant on locus standi is based on the alleged void transfer after initiation of the land acquisition proceedings. Such transfers would be void in Delhi only in case the same is made after the declaration under Section 6(1). In the instant case, the transfer is prior to Section 6(1) declaration, though after Section 4(1). Therefore, there is no merit in the contention advanced by the appellant that the writ petitioners did not have any locus standi to challenge the land acquisition.8. The writ petitioner approached the High Court contending that neither the compensation was paid nor the possession taken and hence, sought for a declaration under Section 24(2) of the 2013 Act. The benefit under Section 24(2) of the 2013 Act is available in the event of two circumstances - (i) The compensation has not been paid though the Award has been passed under the provisions of the 1894 Act prior to 01.01.2014; (ii) Despite passing an Award and payment of compensation, possession had not been taken five years prior to 01.01.2014. As far as the compensation part is concerned, there is no dispute that the same has not been paid. Hence, the writ petitioner is entitled to have the declaration under Section 24(2) of the 2013 Act. Since the respondent cannot be non-suited on the ground that he has no locus standi, there is no merit in the appeal and it is, accordingly, dismissed.9. In the peculiar facts and circumstances of this case, the appellant is given a period of one year to exercise its liberty granted under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 for initiation of the acquisition proceedings afresh. | 1 | 991 | 356 | ### Instruction:
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Kurian, J.1. Leave granted.2. The appellant - Delhi Development Authority is aggrieved by the Judgment dated 22.12.2014 passed by the High Court of Delhi, whereby the High Court declared that the acquisition proceedings in question have lapsed on account of operation of Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 (in short, "2013 Act").3. In the case before us, the High Court has taken note of the fact that the compensation has never been paid to the owners. Be that as it may, the main contention urged is that the writ petitioner has no locus standi to file a Writ Petition for the declaration that the proceedings have lapsed.4. Heavy reliance is placed on a decision of this Court in Star Wire (India) Ltd. v. State of Haryana and Others, reported in (1996) 11 SCC 698. It was a case where the land acquisition proceedings were initiated under Section 4(1) of the Land Acquisition Act, 1894 (in short, "1894 Act"). The Notification was issued on 01.06.1976. Section 6 Declaration was published on 16.02.1977 and the Award was passed on 03.07.1981. Section 18 Reference had also become final. Thereafter, the Writ Petition was filed on 21.01.1994. The Writ Petitioner therein contended that he was the person who had purchased the property after the Section 4(1) Notification was issued. In that context, it was held that "Any encumbrance created by the erstwhile owner of the land after publication of the notification under Section 4(1) does not bind the State if the possession of the land is already taken over, after the award came to be passed." It was also held that such a purchaser does not acquire any valid title and in such circumstances, it was held that those subsequent purchasers have no right to challenge the acquisition proceedings, much less the Award.5. Under the Delhi Lands (Restrictions on Transfer) Act, 1972, restriction on transfer is only after the Declaration under Section 6(1) of the 1894 Act is published. There is also a prohibition under Section 3 which pertains to transfer of land already acquired by Central Government. What is relevant is Section 4, which reads as follows :-"4. Regulation on transfer of lands in relation to which acquisition proceedings have been initiated - No person shall, except with the previous permission in writing of the competent authority, transfer or purport to transfer by sale, mortgage, gift, lease or otherwise any land or part thereof situated in the Union Territory of Delhi, which is proposed to be acquired in connection with the Scheme and in relation to which a declaration to the effect that such land or part thereof is needed for a public purpose having been made by the Central Government under section 6 of the Land Acquisition Act, 1894, the Central Government has not withdrawn from the acquisition under section 48 of that Act."6. Section 9 deals with penalty for contravention of the provisions of Section 3 or Section 4. Therefore, under the statutory scheme, the restriction on transfer is only after publication of Notification under Section 6 of the 1894 Act. Being a special law as far as Delhi is concerned, this will, in no case, prevail over any other general law on restriction on transfer after initiation of acquisition proceedings.7. In the instant case, the property is situated in Delhi and the contention of the appellant on locus standi is based on the alleged void transfer after initiation of the land acquisition proceedings. Such transfers would be void in Delhi only in case the same is made after the declaration under Section 6(1). In the instant case, the transfer is prior to Section 6(1) declaration, though after Section 4(1). Therefore, there is no merit in the contention advanced by the appellant that the writ petitioners did not have any locus standi to challenge the land acquisition.8. The writ petitioner approached the High Court contending that neither the compensation was paid nor the possession taken and hence, sought for a declaration under Section 24(2) of the 2013 Act. The benefit under Section 24(2) of the 2013 Act is available in the event of two circumstances - (i) The compensation has not been paid though the Award has been passed under the provisions of the 1894 Act prior to 01.01.2014; (ii) Despite passing an Award and payment of compensation, possession had not been taken five years prior to 01.01.2014. As far as the compensation part is concerned, there is no dispute that the same has not been paid. Hence, the writ petitioner is entitled to have the declaration under Section 24(2) of the 2013 Act. Since the respondent cannot be non-suited on the ground that he has no locus standi, there is no merit in the appeal and it is, accordingly, dismissed.9. In the peculiar facts and circumstances of this case, the appellant is given a period of one year to exercise its liberty granted under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 for initiation of the acquisition proceedings afresh.
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7. In the instant case, the property is situated in Delhi and the contention of the appellant on locus standi is based on the alleged void transfer after initiation of the land acquisition proceedings. Such transfers would be void in Delhi only in case the same is made after the declaration under Section 6(1). In the instant case, the transfer is prior to Section 6(1) declaration, though after Section 4(1). Therefore, there is no merit in the contention advanced by the appellant that the writ petitioners did not have any locus standi to challenge the land acquisition.8. The writ petitioner approached the High Court contending that neither the compensation was paid nor the possession taken and hence, sought for a declaration under Section 24(2) of the 2013 Act. The benefit under Section 24(2) of the 2013 Act is available in the event of two circumstances - (i) The compensation has not been paid though the Award has been passed under the provisions of the 1894 Act prior to 01.01.2014; (ii) Despite passing an Award and payment of compensation, possession had not been taken five years prior to 01.01.2014. As far as the compensation part is concerned, there is no dispute that the same has not been paid. Hence, the writ petitioner is entitled to have the declaration under Section 24(2) of the 2013 Act. Since the respondent cannot be non-suited on the ground that he has no locus standi, there is no merit in the appeal and it is, accordingly, dismissed.9. In the peculiar facts and circumstances of this case, the appellant is given a period of one year to exercise its liberty granted under Section 24(2) of the Right to Fair Compensation and Transparency in Land Acquisition, Rehabilitation and Resettlement Act, 2013 for initiation of the acquisition proceedings afresh.
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HIRABAI (D) THR. LRS. Vs. RAMNIWAS BANSILAL LAKHOTIYA(D)BYLRS.&ORS | the suit property. 12. During pendency of the civil suit, wife, sons and daughters of defendant No.3/respondent No.3 also joined the civil suit, either as plaintiffs or as defendants, some since inception and others at a later stage. Defendant No.3, his wife, sons and daughters supported the plaintiffs case. 13. The suit was contested only by defendant Nos.1 and 2, who were the purchasers of the suit property from defendant No.3. 14. According to defendant Nos.1 and 2, first, the suit was barred by limitation because it was filed after three years from the date of decree dated 31.01.1975; Second, it was bad in law because the plaintiffs failed to seek partition in relation to the entire properties owned by the family; Third, it was a collusive suit filed at the instance of defendant No.3/respondent No.3 to avoid execution of the decree against him; Fourth, the decree dated 31.01.1975 passed in Civil Suit No.48/1971 was also binding on the two plaintiffs in the light of categorical finding recorded by the Civil Court in its judgment dated 31.01.1975; Fifth, in any case, the two plaintiffs had no right, title and interest in the suit property; Sixth, even otherwise, the sale of the suit property having been made by a Karta of the family, i.e., defendant No.3 for the benefit of the family and for legal necessity, it is binding on the two plaintiffs including all members of the family; Seventh, a suit to challenge the decree passed by a competent Civil Court is not maintainable. 15. The Trial Court, by judgment/decree dated 16.10.1981, dismissed the suit and answered all the issues against the plaintiffs by upholding the objections raised by defendant Nos.1 and 2. The plaintiffs felt aggrieved and filed first appeal before the 2 nd Additional District Judge. By judgment dated 09.05.1988, the first Appellate Court dismissed the appeal which gave rise to filing of second appeal by the plaintiffs in the High Court. By impugned order, the High Court dismissed the second appeal, which has given rise to filing of the present appeal by way of special leave by the plaintiffs in this Court. 16. So, the short question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing plaintiffs second appeal and thereby was justified in upholding the judgment of the Trial Court and first Appellate Court which resulted in dismissing the suit. 17. Heard Mr. Vinay Navare, learned senior counsel for the appellants and Mr. Nishant Ramakantrao Katneshwarkar, learned counsel for the respondents. 18. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal. 19. In our view, all the three Courts (Civil Judge, first Appellate Court and the High Court) were right in their reasoning and the conclusion on all the factual and legal issues raised by defendant Nos.1 and 2 and we find no good ground to differ with their reasoning and the conclusion. 20. First, the findings impugned in the appeal being concurrent in nature, were not only binding on the High Court while deciding the second appeal and were rightly held to be so binding but such findings are binding on this Court too; Second, even otherwise, all the findings have been recorded on proper appreciation of facts and law and hence do not call for any interference in this appeal as detailed infra. 21. Third, the suit in question was apparently a collusive suit filed at the behest of defendant No.3 through his two sisters and family members to avoid execution of a valid decree dated 31.01.1975 passed by the competent Civil Court against defendant No.3 in relation to the suit property. 22. Fourth, in the light of findings recorded by the Trial Court in the previous suit in Para 18, the present suit was rightly dismissed by all the Courts below. It is apposite to quote the finding of the Trial Court recorded in Para 18 which reads as under: 18. The sale deed has been executed by Shankarlal, who is admittedly the Karta of the family. According to the own statement of defendant No.1, he was in need of money for paying his dues to different persons. He, therefore, sold the house in favour of Bansilal. Defendant No.1 cannot raise the objection that, other heirs of Motilal should be impleaded as defendants. It is for the other heirs, if any, of late Motilal to take recourse to proper remedy in case they fell that, the alienation of the suit house was not in the interest of the family. Other heirs of Motilal are not necessary parties to this suit. Issue No.8 is decided against the defendants. 23. The aforesaid finding, in our view, not only binds defendant No.3 but also binds the two plaintiffs being the members of the same family. 24. Fifth, once it was held that the sale of the suit property was made by the Karta - defendant No.3 and it was made for legal necessity and the benefit of the family, the same was binding on all the members of the family including the plaintiffs. 25. Sixth, the plaintiffs failed to plead and prove that the sale in question was not for the benefit of family or that there was no legal necessity for such sale or as to on what basis, they claimed share in the suit property. On the other hand, defendant Nos.1 and 2 were able to prove that the sale was for the legal necessity and benefit of the family. 26. Seventh, the plaintiffs themselves admitted in their evidence that they filed a civil suit at the instigation of defendant No.3 - their real brother. This clearly indicates that the suit was not filed for a bona fide cause but it was a collusive suit filed by the plaintiffs to overcome the valid decree obtained by the defendant Nos.1 and 2 against defendant No.3 and to save defendant No.3 from its execution. | 0[ds]19. In our view, all the three Courts (Civil Judge, first Appellate Court and the High Court) were right in their reasoning and the conclusion on all the factual and legal issues raised by defendant Nos.1 and 2 and we find no good ground to differ with their reasoning and the conclusion20. First, the findings impugned in the appeal being concurrent in nature, were not only binding on the High Court while deciding the second appeal and were rightly held to be so binding but such findings are binding on this Court too; Second, even otherwise, all the findings have been recorded on proper appreciation of facts and law and hence do not call for any interference in this appeal as detailed infra21. Third, the suit in question was apparently a collusive suit filed at the behest of defendant No.3 through his two sisters and family members to avoid execution of a valid decree dated 31.01.1975 passed by the competent Civil Court against defendant No.3 in relation to the suit property22. Fourth, in the light of findings recorded by the Trial Court in the previous suit in Para 18, the present suit was rightly dismissed by all the Courts below. It is apposite to quote the finding of the Trial Court recorded in Para 18 which reads as under:18. The sale deed has been executed by Shankarlal, who is admittedly the Karta of the family. According to the own statement of defendant No.1, he was in need of money for paying his dues to different persons. He, therefore, sold the house in favour of Bansilal. Defendant No.1 cannot raise the objection that, other heirs of Motilal should be impleaded as defendants. It is for the other heirs, if any, of late Motilal to take recourse to proper remedy in case they fell that, the alienation of the suit house was not in the interest of the family. Other heirs of Motilal are not necessary parties to this suit. Issue No.8 is decided against the defendants23. The aforesaid finding, in our view, not only binds defendant No.3 but also binds the two plaintiffs being the members of the same family24. Fifth, once it was held that the sale of the suit property was made by the Karta - defendant No.3 and it was made for legal necessity and the benefit of the family, the same was binding on all the members of the family including the plaintiffs25. Sixth, the plaintiffs failed to plead and prove that the sale in question was not for the benefit of family or that there was no legal necessity for such sale or as to on what basis, they claimed share in the suit property. On the other hand, defendant Nos.1 and 2 were able to prove that the sale was for the legal necessity and benefit of the family26. Seventh, the plaintiffs themselves admitted in their evidence that they filed a civil suit at the instigation of defendant No.3 - their real brother. This clearly indicates that the suit was not filed for a bona fide cause but it was a collusive suit filed by the plaintiffs to overcome the valid decree obtained by the defendant Nos.1 and 2 against defendant No.3 and to save defendant No.3 from its execution. | 0 | 1,694 | 597 | ### Instruction:
Conjecture the end result of the case (acceptance (1) or non-acceptance (0) of the appeal), followed by a detailed explanation using crucial sentences from the case proceeding.
### Input:
the suit property. 12. During pendency of the civil suit, wife, sons and daughters of defendant No.3/respondent No.3 also joined the civil suit, either as plaintiffs or as defendants, some since inception and others at a later stage. Defendant No.3, his wife, sons and daughters supported the plaintiffs case. 13. The suit was contested only by defendant Nos.1 and 2, who were the purchasers of the suit property from defendant No.3. 14. According to defendant Nos.1 and 2, first, the suit was barred by limitation because it was filed after three years from the date of decree dated 31.01.1975; Second, it was bad in law because the plaintiffs failed to seek partition in relation to the entire properties owned by the family; Third, it was a collusive suit filed at the instance of defendant No.3/respondent No.3 to avoid execution of the decree against him; Fourth, the decree dated 31.01.1975 passed in Civil Suit No.48/1971 was also binding on the two plaintiffs in the light of categorical finding recorded by the Civil Court in its judgment dated 31.01.1975; Fifth, in any case, the two plaintiffs had no right, title and interest in the suit property; Sixth, even otherwise, the sale of the suit property having been made by a Karta of the family, i.e., defendant No.3 for the benefit of the family and for legal necessity, it is binding on the two plaintiffs including all members of the family; Seventh, a suit to challenge the decree passed by a competent Civil Court is not maintainable. 15. The Trial Court, by judgment/decree dated 16.10.1981, dismissed the suit and answered all the issues against the plaintiffs by upholding the objections raised by defendant Nos.1 and 2. The plaintiffs felt aggrieved and filed first appeal before the 2 nd Additional District Judge. By judgment dated 09.05.1988, the first Appellate Court dismissed the appeal which gave rise to filing of second appeal by the plaintiffs in the High Court. By impugned order, the High Court dismissed the second appeal, which has given rise to filing of the present appeal by way of special leave by the plaintiffs in this Court. 16. So, the short question, which arises for consideration in this appeal, is whether the High Court was justified in dismissing plaintiffs second appeal and thereby was justified in upholding the judgment of the Trial Court and first Appellate Court which resulted in dismissing the suit. 17. Heard Mr. Vinay Navare, learned senior counsel for the appellants and Mr. Nishant Ramakantrao Katneshwarkar, learned counsel for the respondents. 18. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in this appeal. 19. In our view, all the three Courts (Civil Judge, first Appellate Court and the High Court) were right in their reasoning and the conclusion on all the factual and legal issues raised by defendant Nos.1 and 2 and we find no good ground to differ with their reasoning and the conclusion. 20. First, the findings impugned in the appeal being concurrent in nature, were not only binding on the High Court while deciding the second appeal and were rightly held to be so binding but such findings are binding on this Court too; Second, even otherwise, all the findings have been recorded on proper appreciation of facts and law and hence do not call for any interference in this appeal as detailed infra. 21. Third, the suit in question was apparently a collusive suit filed at the behest of defendant No.3 through his two sisters and family members to avoid execution of a valid decree dated 31.01.1975 passed by the competent Civil Court against defendant No.3 in relation to the suit property. 22. Fourth, in the light of findings recorded by the Trial Court in the previous suit in Para 18, the present suit was rightly dismissed by all the Courts below. It is apposite to quote the finding of the Trial Court recorded in Para 18 which reads as under: 18. The sale deed has been executed by Shankarlal, who is admittedly the Karta of the family. According to the own statement of defendant No.1, he was in need of money for paying his dues to different persons. He, therefore, sold the house in favour of Bansilal. Defendant No.1 cannot raise the objection that, other heirs of Motilal should be impleaded as defendants. It is for the other heirs, if any, of late Motilal to take recourse to proper remedy in case they fell that, the alienation of the suit house was not in the interest of the family. Other heirs of Motilal are not necessary parties to this suit. Issue No.8 is decided against the defendants. 23. The aforesaid finding, in our view, not only binds defendant No.3 but also binds the two plaintiffs being the members of the same family. 24. Fifth, once it was held that the sale of the suit property was made by the Karta - defendant No.3 and it was made for legal necessity and the benefit of the family, the same was binding on all the members of the family including the plaintiffs. 25. Sixth, the plaintiffs failed to plead and prove that the sale in question was not for the benefit of family or that there was no legal necessity for such sale or as to on what basis, they claimed share in the suit property. On the other hand, defendant Nos.1 and 2 were able to prove that the sale was for the legal necessity and benefit of the family. 26. Seventh, the plaintiffs themselves admitted in their evidence that they filed a civil suit at the instigation of defendant No.3 - their real brother. This clearly indicates that the suit was not filed for a bona fide cause but it was a collusive suit filed by the plaintiffs to overcome the valid decree obtained by the defendant Nos.1 and 2 against defendant No.3 and to save defendant No.3 from its execution.
### Response:
0
### Explanation:
19. In our view, all the three Courts (Civil Judge, first Appellate Court and the High Court) were right in their reasoning and the conclusion on all the factual and legal issues raised by defendant Nos.1 and 2 and we find no good ground to differ with their reasoning and the conclusion20. First, the findings impugned in the appeal being concurrent in nature, were not only binding on the High Court while deciding the second appeal and were rightly held to be so binding but such findings are binding on this Court too; Second, even otherwise, all the findings have been recorded on proper appreciation of facts and law and hence do not call for any interference in this appeal as detailed infra21. Third, the suit in question was apparently a collusive suit filed at the behest of defendant No.3 through his two sisters and family members to avoid execution of a valid decree dated 31.01.1975 passed by the competent Civil Court against defendant No.3 in relation to the suit property22. Fourth, in the light of findings recorded by the Trial Court in the previous suit in Para 18, the present suit was rightly dismissed by all the Courts below. It is apposite to quote the finding of the Trial Court recorded in Para 18 which reads as under:18. The sale deed has been executed by Shankarlal, who is admittedly the Karta of the family. According to the own statement of defendant No.1, he was in need of money for paying his dues to different persons. He, therefore, sold the house in favour of Bansilal. Defendant No.1 cannot raise the objection that, other heirs of Motilal should be impleaded as defendants. It is for the other heirs, if any, of late Motilal to take recourse to proper remedy in case they fell that, the alienation of the suit house was not in the interest of the family. Other heirs of Motilal are not necessary parties to this suit. Issue No.8 is decided against the defendants23. The aforesaid finding, in our view, not only binds defendant No.3 but also binds the two plaintiffs being the members of the same family24. Fifth, once it was held that the sale of the suit property was made by the Karta - defendant No.3 and it was made for legal necessity and the benefit of the family, the same was binding on all the members of the family including the plaintiffs25. Sixth, the plaintiffs failed to plead and prove that the sale in question was not for the benefit of family or that there was no legal necessity for such sale or as to on what basis, they claimed share in the suit property. On the other hand, defendant Nos.1 and 2 were able to prove that the sale was for the legal necessity and benefit of the family26. Seventh, the plaintiffs themselves admitted in their evidence that they filed a civil suit at the instigation of defendant No.3 - their real brother. This clearly indicates that the suit was not filed for a bona fide cause but it was a collusive suit filed by the plaintiffs to overcome the valid decree obtained by the defendant Nos.1 and 2 against defendant No.3 and to save defendant No.3 from its execution.
|
Shaikh Kaisar & Others Vs. Forbes Gokak Limited & Others | joinder, mis-joinder and non-joinder as applicable to those types of litigations are not necessarily applicable to a writ petition. However, a common writ petition by several petitioners or a common writ petition against several respondents may not be maintainable or rather may not be desirable when there are different causes of action pertaining to each individual petitioner or respondent, when there are different sets of facts and when there are different remedies sought. Otherwise, as observed in paragraph No. 14 of the judgment in the case of Management, E.I.D. Parry India Ltd. (supra), there need not be a hard and fast rule that writ petition by or against several petitioners/ respondents is not maintainable.In the matter at hands, following observations of the learned Single Judge can be usefully reproduced."3. The questions raised in this petition do not relate to the questions of facts but a substantial question of law relating to the interpretation of Section 2(s) of the Payment of Gratuity Act, 1972 is involved in the instant petition.""4. Since the facts in respect of individual employees i.e. respondents Nos.1 to 42 do not fall for consideration in the instant petition and the petition merely raises a substantial question of law, it would not be in the interest of justice to direct the petitioners to file separate petitions. Even otherwise, the appellate authority i.e. respondent No. 44 has decided all the appeals filed by respondents Nos. 1 to 42 by a common order dated 12-09-2006."It thus appears that the dispute is within limited compass and learned Single Judge has issued Rule only for the purpose of determination as to whether payments of amounts under various heads which are given different names (not "Pay" and "Dearness Allowances") such as Additional Reward Scheme (ARS) and Other Reward Scheme (ORS), fall within the definition of "wages" as under section 2(s) of the Payment of Gratuity Act, 1972. No doubt, number of years of service may be different in case of different employees and the last pay drawn may also be different in case of different employees. Once the High Court records its finding as to whether these amounts titled as "ARS" and "ORS" are covered by the definition "wages" as under section 2(s) of the Payment of Gratuity Act, 1972, what remains is the ministerial calculations for the purpose of determining the amount payable to each individual employee. On this count, it cannot be said that there are different causes of action. It may not be incorrect to say that even if the Company files 42 writ petitions challenging the decision in favour of 42 employees (by common judgment and order), all the writ petitions would be clubbed together, heard together and decided by common judgment and order giving interpretation of the court of the definition of "wages" as under section 2(s) of the Payment of Gratuity Act, 1972.7. For the reasons discussed hereinabove, we find no hesitation to concur with the view taken by the learned Single Judge so far as challenge to the maintainability of single writ petition as against all 42 employees although they had come with 42 different complaints and appeals.8. As a second limb of argument, learned advocate Shri Singh, for the appellants expressed grievance because learned Single Judge while issuing Rule in favour of the Company has also granted stay to the order impugned in the writ petition. Consequently, the Company is not required to deposit the amount found due to the employees by the appellate authority. Shri Singh, for the purpose of submission of his argument, has placed reliance upon section second proviso to section 7 sub-section 7 of the Payment of Gratuity Act, 1972, which reads thus:-"Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount of equal to the amount of gratuity required to be deposited under sub-section (4), or deposits with the appellate authority such amount."The proviso relates to fact circumstances with the Controlling Authority deciding the applications in favour of the employees and the employer is required to deposit the amount before the appellate authority. Such is not the case before us. On reference to section 7 sub-section 4(a), it is evident that employer is required to deposit with the Controlling Authority such amount as he admits to be payable by him as gratuity, as and when any dispute as to the payment of gratuity payable to the employees arises. We are informed that the employer has already paid the amount which, according to him, is due to the employees. Therefore, we feel that section 7 sub-section 7 proviso second cannot render any assistance to present appellants. We are, therefore, not inclined to consider second prayer of learned advocate Shri Singh favourably.9. Learned Single Judge while granting interim relief has not discussed the reasons at length, but the reasons are not impossible to be visualized. Admittedly, the Company is functioning well and it is not a Company which has gone in liquidation or which is closed down. The amount if found due after the decision of the High Court can be directed to be paid within the reasonable time. Employees are already paid some amount which employer admits to be due to the employees by way of gratuity. We, therefore, do not find necessity to interfere with grant of stay during pendency of writ petition.10. At this stage, we have inquired learned advocate Shri Dankh as to whether he has paid requisite court fee taking into consideration that he has narrated cause of action pertaining to 42 respondents together when Shri Dankh has narrated that the employer Company would be willing and shall be depositing the requisite court fee as required for 42 writ petitions in the matter before learned Single Judge. We accept the assurance and believe the learned advocate for the Company to comply the same within reasonable time. | 1[ds]On going through the observations as borrowed from various judicial pronouncements by the learned Single Judge, in the matter of Management, E.I.D. Parry India Ltd. (supra) and the observations of the Honble Supreme Court relied upon by learned advocate Shri Singh, it can be seen that the writ petition cannot be treated at par either with civil suit or with criminal case and rules of joinder,er as applicable to those types of litigations are not necessarily applicable to a writ petition. However, a common writ petition by several petitioners or a common writ petition against several respondents may not be maintainable or rather may not be desirable when there are different causes of action pertaining to each individual petitioner or respondent, when there are different sets of facts and when there are different remedies sought. Otherwise, as observed in paragraph No. 14 of the judgment in the case of Management, E.I.D. Parry India Ltd. (supra), there need not be a hard and fast rule that writ petition by or against several petitioners/ respondents is notthus appears that the dispute is within limited compass and learned Single Judge has issued Rule only for the purpose of determination as to whether payments of amounts under various heads which are given different names (not "Pay" and "Dearness Allowances") such as Additional Reward Scheme (ARS) and Other Reward Scheme (ORS), fall within the definition of "wages" as under section 2(s) of the Payment of Gratuity Act, 1972. No doubt, number of years of service may be different in case of different employees and the last pay drawn may also be different in case of different employees. Once the High Court records its finding as to whether these amounts titled as "ARS" and "ORS" are covered by the definition "wages" as under section 2(s) of the Payment of Gratuity Act, 1972, what remains is the ministerial calculations for the purpose of determining the amount payable to each individual employee. On this count, it cannot be said that there are different causes of action. It may not be incorrect to say that even if the Company files 42 writ petitions challenging the decision in favour of 42 employees (by common judgment and order), all the writ petitions would be clubbed together, heard together and decided by common judgment and order giving interpretation of the court of the definition of "wages" as under section 2(s) of the Payment of Gratuity Act, 1972.7. For the reasons discussed hereinabove, we find no hesitation to concur with the view taken by the learned Single Judge so far as challenge to the maintainability of single writ petition as against all 42 employees although they had come with 42 different complaints and appeals.8. As a second limb of argument, learned advocate Shri Singh, for the appellants expressed grievance because learned Single Judge while issuing Rule in favour of the Company has also granted stay to the order impugned in the writ petition. Consequently, the Company is not required to deposit the amount found due to the employees by the appellate authority.The proviso relates to fact circumstances with the Controlling Authority deciding the applications in favour of the employees and the employer is required to deposit the amount before the appellate authority. Such is not the case before us. On reference to section 74(a), it is evident that employer is required to deposit with the Controlling Authority such amount as he admits to be payable by him as gratuity, as and when any dispute as to the payment of gratuity payable to the employees arises. We are informed that the employer has already paid the amount which, according to him, is due to the employees. Therefore, we feel that section 77 proviso second cannot render any assistance to present appellants. We are, therefore, not inclined to consider second prayer of learned advocate Shri Singh favourably.9. Learned Single Judge while granting interim relief has not discussed the reasons at length, but the reasons are not impossible to be visualized. Admittedly, the Company is functioning well and it is not a Company which has gone in liquidation or which is closed down. The amount if found due after the decision of the High Court can be directed to be paid within the reasonable time. Employees are already paid some amount which employer admits to be due to the employees by way of gratuity. We, therefore, do not find necessity to interfere with grant of stay during pendency of writ petition.10. At this stage, we have inquired learned advocate Shri Dankh as to whether he has paid requisite court fee taking into consideration that he has narrated cause of action pertaining to 42 respondents together when Shri Dankh has narrated that the employer Company would be willing and shall be depositing the requisite court fee as required for 42 writ petitions in the matter before learned Single Judge. We accept the assurance and believe the learned advocate for the Company to comply the same within reasonable time. | 1 | 2,113 | 936 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
joinder, mis-joinder and non-joinder as applicable to those types of litigations are not necessarily applicable to a writ petition. However, a common writ petition by several petitioners or a common writ petition against several respondents may not be maintainable or rather may not be desirable when there are different causes of action pertaining to each individual petitioner or respondent, when there are different sets of facts and when there are different remedies sought. Otherwise, as observed in paragraph No. 14 of the judgment in the case of Management, E.I.D. Parry India Ltd. (supra), there need not be a hard and fast rule that writ petition by or against several petitioners/ respondents is not maintainable.In the matter at hands, following observations of the learned Single Judge can be usefully reproduced."3. The questions raised in this petition do not relate to the questions of facts but a substantial question of law relating to the interpretation of Section 2(s) of the Payment of Gratuity Act, 1972 is involved in the instant petition.""4. Since the facts in respect of individual employees i.e. respondents Nos.1 to 42 do not fall for consideration in the instant petition and the petition merely raises a substantial question of law, it would not be in the interest of justice to direct the petitioners to file separate petitions. Even otherwise, the appellate authority i.e. respondent No. 44 has decided all the appeals filed by respondents Nos. 1 to 42 by a common order dated 12-09-2006."It thus appears that the dispute is within limited compass and learned Single Judge has issued Rule only for the purpose of determination as to whether payments of amounts under various heads which are given different names (not "Pay" and "Dearness Allowances") such as Additional Reward Scheme (ARS) and Other Reward Scheme (ORS), fall within the definition of "wages" as under section 2(s) of the Payment of Gratuity Act, 1972. No doubt, number of years of service may be different in case of different employees and the last pay drawn may also be different in case of different employees. Once the High Court records its finding as to whether these amounts titled as "ARS" and "ORS" are covered by the definition "wages" as under section 2(s) of the Payment of Gratuity Act, 1972, what remains is the ministerial calculations for the purpose of determining the amount payable to each individual employee. On this count, it cannot be said that there are different causes of action. It may not be incorrect to say that even if the Company files 42 writ petitions challenging the decision in favour of 42 employees (by common judgment and order), all the writ petitions would be clubbed together, heard together and decided by common judgment and order giving interpretation of the court of the definition of "wages" as under section 2(s) of the Payment of Gratuity Act, 1972.7. For the reasons discussed hereinabove, we find no hesitation to concur with the view taken by the learned Single Judge so far as challenge to the maintainability of single writ petition as against all 42 employees although they had come with 42 different complaints and appeals.8. As a second limb of argument, learned advocate Shri Singh, for the appellants expressed grievance because learned Single Judge while issuing Rule in favour of the Company has also granted stay to the order impugned in the writ petition. Consequently, the Company is not required to deposit the amount found due to the employees by the appellate authority. Shri Singh, for the purpose of submission of his argument, has placed reliance upon section second proviso to section 7 sub-section 7 of the Payment of Gratuity Act, 1972, which reads thus:-"Provided further that no appeal by an employer shall be admitted unless at the time of preferring the appeal, the appellant either produces a certificate of the controlling authority to the effect that the appellant has deposited with him an amount of equal to the amount of gratuity required to be deposited under sub-section (4), or deposits with the appellate authority such amount."The proviso relates to fact circumstances with the Controlling Authority deciding the applications in favour of the employees and the employer is required to deposit the amount before the appellate authority. Such is not the case before us. On reference to section 7 sub-section 4(a), it is evident that employer is required to deposit with the Controlling Authority such amount as he admits to be payable by him as gratuity, as and when any dispute as to the payment of gratuity payable to the employees arises. We are informed that the employer has already paid the amount which, according to him, is due to the employees. Therefore, we feel that section 7 sub-section 7 proviso second cannot render any assistance to present appellants. We are, therefore, not inclined to consider second prayer of learned advocate Shri Singh favourably.9. Learned Single Judge while granting interim relief has not discussed the reasons at length, but the reasons are not impossible to be visualized. Admittedly, the Company is functioning well and it is not a Company which has gone in liquidation or which is closed down. The amount if found due after the decision of the High Court can be directed to be paid within the reasonable time. Employees are already paid some amount which employer admits to be due to the employees by way of gratuity. We, therefore, do not find necessity to interfere with grant of stay during pendency of writ petition.10. At this stage, we have inquired learned advocate Shri Dankh as to whether he has paid requisite court fee taking into consideration that he has narrated cause of action pertaining to 42 respondents together when Shri Dankh has narrated that the employer Company would be willing and shall be depositing the requisite court fee as required for 42 writ petitions in the matter before learned Single Judge. We accept the assurance and believe the learned advocate for the Company to comply the same within reasonable time.
### Response:
1
### Explanation:
On going through the observations as borrowed from various judicial pronouncements by the learned Single Judge, in the matter of Management, E.I.D. Parry India Ltd. (supra) and the observations of the Honble Supreme Court relied upon by learned advocate Shri Singh, it can be seen that the writ petition cannot be treated at par either with civil suit or with criminal case and rules of joinder,er as applicable to those types of litigations are not necessarily applicable to a writ petition. However, a common writ petition by several petitioners or a common writ petition against several respondents may not be maintainable or rather may not be desirable when there are different causes of action pertaining to each individual petitioner or respondent, when there are different sets of facts and when there are different remedies sought. Otherwise, as observed in paragraph No. 14 of the judgment in the case of Management, E.I.D. Parry India Ltd. (supra), there need not be a hard and fast rule that writ petition by or against several petitioners/ respondents is notthus appears that the dispute is within limited compass and learned Single Judge has issued Rule only for the purpose of determination as to whether payments of amounts under various heads which are given different names (not "Pay" and "Dearness Allowances") such as Additional Reward Scheme (ARS) and Other Reward Scheme (ORS), fall within the definition of "wages" as under section 2(s) of the Payment of Gratuity Act, 1972. No doubt, number of years of service may be different in case of different employees and the last pay drawn may also be different in case of different employees. Once the High Court records its finding as to whether these amounts titled as "ARS" and "ORS" are covered by the definition "wages" as under section 2(s) of the Payment of Gratuity Act, 1972, what remains is the ministerial calculations for the purpose of determining the amount payable to each individual employee. On this count, it cannot be said that there are different causes of action. It may not be incorrect to say that even if the Company files 42 writ petitions challenging the decision in favour of 42 employees (by common judgment and order), all the writ petitions would be clubbed together, heard together and decided by common judgment and order giving interpretation of the court of the definition of "wages" as under section 2(s) of the Payment of Gratuity Act, 1972.7. For the reasons discussed hereinabove, we find no hesitation to concur with the view taken by the learned Single Judge so far as challenge to the maintainability of single writ petition as against all 42 employees although they had come with 42 different complaints and appeals.8. As a second limb of argument, learned advocate Shri Singh, for the appellants expressed grievance because learned Single Judge while issuing Rule in favour of the Company has also granted stay to the order impugned in the writ petition. Consequently, the Company is not required to deposit the amount found due to the employees by the appellate authority.The proviso relates to fact circumstances with the Controlling Authority deciding the applications in favour of the employees and the employer is required to deposit the amount before the appellate authority. Such is not the case before us. On reference to section 74(a), it is evident that employer is required to deposit with the Controlling Authority such amount as he admits to be payable by him as gratuity, as and when any dispute as to the payment of gratuity payable to the employees arises. We are informed that the employer has already paid the amount which, according to him, is due to the employees. Therefore, we feel that section 77 proviso second cannot render any assistance to present appellants. We are, therefore, not inclined to consider second prayer of learned advocate Shri Singh favourably.9. Learned Single Judge while granting interim relief has not discussed the reasons at length, but the reasons are not impossible to be visualized. Admittedly, the Company is functioning well and it is not a Company which has gone in liquidation or which is closed down. The amount if found due after the decision of the High Court can be directed to be paid within the reasonable time. Employees are already paid some amount which employer admits to be due to the employees by way of gratuity. We, therefore, do not find necessity to interfere with grant of stay during pendency of writ petition.10. At this stage, we have inquired learned advocate Shri Dankh as to whether he has paid requisite court fee taking into consideration that he has narrated cause of action pertaining to 42 respondents together when Shri Dankh has narrated that the employer Company would be willing and shall be depositing the requisite court fee as required for 42 writ petitions in the matter before learned Single Judge. We accept the assurance and believe the learned advocate for the Company to comply the same within reasonable time.
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Lanyard Foods Limited Vs. China Shipping Development Company Limited | only an additional ground available to the creditor who has obtained a decree against the company. Clause (b) of section 434(1) does not prevent the decree holder creditor to resort to a deeming provision of clause (a) thereof. In support of his submissions, learned counsel for the respondent referred to and relied upon the decisions of Single Judges of the Calcutta High Court in Re Unique Cardboard Box Mfg.Co.P. Ltd., reported in 1974, Vol.48 Co. Cases 599 Delhi High Court in Madhuban Pvt. Ltd. Vs. Narain Dass Gokal Chand reported in 1971 (Vol.41) Co. Cases 685, Calcutta High Court in All India General Transport Corp.Ltd. Vs. Raj Kumar Mittal reported in 1978 (Vol.48) Co. Cases 604, Madras High Court in Seethai Mills Ltd. Vs. N. Perumalsamy & Anr. reported in 1980 (Vol.50) Co. Cases 422 and Guwahati High Court in Investment of India Ltd. Vs. Everest Cycles Ltd. reported in 1984 (Vol.56) Co.Cases 165. He also submitted that this Court has also consistently taken the same view and referred to its decisions in Dhootpapeshwar Sales Pvt.Ltd. reported in 1972 (Vol.42) Co. Cases 139 and unreported decision in the case of Sugam Construction Pvt. Ltd. (Company Petition no.650 of 2004) decided on 29th April 2005 (Coram S.U. Kamdar, J).8. In our view, in the facts and circumstances of the case in hand, it is not necessary to consider whether a creditor whose claim has culminated into a decree and who has become a decree holder is entitled to file a petition for winding up under clause (a) of sub-section (1) of section 434 on failure of the company to pay the decretal amount within the statutory period on service of a demand notice or is required to resort to and file the petition only under clause (b) of sub-section (1) of section 434 of the Act on execution or any process issued on a decree being returned unsatisfied. In paragraph no.21 and 22 of the Company Petition, the respondent has averred the facts which disclose that the appellant company is clearly commercially insolvent and is unable to pay its debts. Contents of paragraph nos.21 and 22 of the petition has been extracted in detail in paragraph no.10 of the impugned judgment. The learned Judge has also noted that in its affidavit in reply, the appellant has not denied the averments made in paragraph nos.21 and 22 of the Company Petition and therefore they are deemed to be admitted. In paragraph no.22 of the Company Petition, the respondent has clearly averred the following:-(a) The appellant company has accumulated losses aggregated to Rs.225.94 crores. (b) Sales income of the appellant has come down drastically to Rs.11.83 crores from 123.78 crores in the previous year.(c) No provision is made by the appellant for interest liability on loans and dues of foreign creditors due to which loss for the year is understated in the profit and loss account.(d) Losses have resulted in the net worth of the appellant being completely eroded. A reference was filed by the appellant to the BIFR under the provisions of Sick Industrial Companies Act, 1985 2985.(g) Appellants cash flow was negligible and effectively negative. (h) Appellants current assets were negative at Rs.153.76 crores. (i) Appellants foreign creditor, Shweta International Pvt.Ltd. had filed a suit against the appellant for recovery of Rs.140 crores.(j) The liability of appellant to the creditors/customers alone (excluding bankers and others) was Rs.166 crores.(k) Appellants liabilities to its bankers and other creditors was Rs.49.07 crores. (l) Appellants bankers viz. State Bank of Saurashtra and Punjab National Bank had recalled the loan facilities and had filed proceedings before Debt Recovery Tribunal, Mumbai.9. None of the allegations made above were denied by the appellant in the affidavit in reply and must therefore be deemed to have been admitted. They disclose that the company has negative the net worth, the cash flow is negligible and effectively negative. Its business has practically come to a stand still. They also disclose that the creditors are to the extent of several hundreds of crores of rupees and that the substratum of the company has disappeared. Nothing was brought on record to show that the financial difficulties were only temporary and given some time. The appellant had the means of repaying the debts. No scheme for rehabilitation was sanctioned by the BIFR under the Sick Industrial Companies Act. In the circumstances, even without even resorting to the deeming provision about the inability of a company to pay its debts made under section 434 of the Companies Act, it must be held that the respondent had established that appellant is unable to pay its debts. Clause (e) of section 433 of the Act provides that the company may be wound up if it is unable to pay its debts. Section 434 of the Act only provides a few circumstances under which a presumption is drawn about the inability of a company to pay its debts. If the circumstances enumerated in section 434 of the Act exist it would be deemed that the company is unable to pay its debts. In our opinion, it is open for the creditor to prove without resorting to the fiction under section 434 of the Act that a company is unable to pay its debts. Of course in the absence of presumption under section 434 of the Act the burden of proving that the company is unable to pay its debts would be heavy when the company contests the claim of the creditor that the company is unable to pay its debts. The court would be slow to infer and hold that the company is unable to pay its debt and would ask for a strict proof. However in the present case, in the light of the averments made in paragraph no.21 and 22 of the petition, which have not been denied by the appellant company, we are satisfied that the respondent has discharged the burden and proved appellant company is commercially insolvent and is unable to pay its debts. | 0[ds]8. In our view, in the facts and circumstances of the case in hand, it is not necessary to consider whether a creditor whose claim has culminated into a decree and who has become a decree holder is entitled to file a petition for winding up under clause (a) of(1) of section 434 on failure of the company to pay the decretal amount within the statutory period on service of a demand notice or is required to resort to and file the petition only under clause (b) of(1) of section 434 of the Act on execution or any process issued on a decree being returned unsatisfied. In paragraph no.21 and 22 of the Company Petition, the respondent has averred the facts which disclose that the appellant company is clearly commercially insolvent and is unable to pay its debts. Contents of paragraph nos.21 and 22 of the petition has been extracted in detail in paragraph no.10 of the impugned judgment. The learned Judge has also noted that in its affidavit in reply, the appellant has not denied the averments made in paragraph nos.21 and 22 of the Company Petition and therefore they are deemed to be admitted. In paragraph no.22 of the Company Petition, the respondent has clearly averred theThe appellant company has accumulated losses aggregated to Rs.225.94Sales income of the appellant has come down drastically to Rs.11.83 crores from 123.78 crores in the previous year.(c) No provision is made by the appellant for interest liability on loans and dues of foreign creditors due to which loss for the year is understated in the profit and loss account.(d) Losses have resulted in the net worth of the appellant being completely eroded. A reference was filed by the appellant to the BIFR under the provisions of Sick Industrial Companies Act, 1985 2985.(g) Appellants cash flow was negligible and effectivelyAppellants current assets were negative at Rs.153.76Appellants foreign creditor, Shweta International Pvt.Ltd. had filed a suit against the appellant for recovery of Rs.140 crores.(j) The liability of appellant to the creditors/customers alone (excluding bankers and others) was Rs.166 crores.(k) Appellants liabilities to its bankers and other creditors was Rs.49.07Appellants bankers viz. State Bank of Saurashtra and Punjab National Bank had recalled the loan facilities and had filed proceedings before Debt Recovery Tribunal,the circumstances, even without even resorting to the deeming provision about the inability of a company to pay its debts made under section 434 of the Companies Act, it must be held that the respondent had established that appellant is unable to pay its(e) of section 433 of the Act provides that the company may be wound up if it is unable to pay its debts. Section 434 of the Act only provides a few circumstances under which a presumption is drawn about the inability of a company to pay its debts. If the circumstances enumerated in section 434 of the Act exist it would be deemed that the company is unable to pay its debts. In our opinion, it is open for the creditor to prove without resorting to the fiction under section 434 of the Act that a company is unable to pay its debts. Of course in the absence of presumption under section 434 of the Act the burden of proving that the company is unable to pay its debts would be heavy when the company contests the claim of the creditor that the company is unable to pay its debts. The court would be slow to infer and hold that the company is unable to pay its debt and would ask for a strict proof. However in the present case, in the light of the averments made in paragraph no.21 and 22 of the petition, which have not been denied by the appellant company, we are satisfied that the respondent has discharged the burden and proved appellant company is commercially insolvent and is unable to pay its debts. | 0 | 3,043 | 718 | ### 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:
only an additional ground available to the creditor who has obtained a decree against the company. Clause (b) of section 434(1) does not prevent the decree holder creditor to resort to a deeming provision of clause (a) thereof. In support of his submissions, learned counsel for the respondent referred to and relied upon the decisions of Single Judges of the Calcutta High Court in Re Unique Cardboard Box Mfg.Co.P. Ltd., reported in 1974, Vol.48 Co. Cases 599 Delhi High Court in Madhuban Pvt. Ltd. Vs. Narain Dass Gokal Chand reported in 1971 (Vol.41) Co. Cases 685, Calcutta High Court in All India General Transport Corp.Ltd. Vs. Raj Kumar Mittal reported in 1978 (Vol.48) Co. Cases 604, Madras High Court in Seethai Mills Ltd. Vs. N. Perumalsamy & Anr. reported in 1980 (Vol.50) Co. Cases 422 and Guwahati High Court in Investment of India Ltd. Vs. Everest Cycles Ltd. reported in 1984 (Vol.56) Co.Cases 165. He also submitted that this Court has also consistently taken the same view and referred to its decisions in Dhootpapeshwar Sales Pvt.Ltd. reported in 1972 (Vol.42) Co. Cases 139 and unreported decision in the case of Sugam Construction Pvt. Ltd. (Company Petition no.650 of 2004) decided on 29th April 2005 (Coram S.U. Kamdar, J).8. In our view, in the facts and circumstances of the case in hand, it is not necessary to consider whether a creditor whose claim has culminated into a decree and who has become a decree holder is entitled to file a petition for winding up under clause (a) of sub-section (1) of section 434 on failure of the company to pay the decretal amount within the statutory period on service of a demand notice or is required to resort to and file the petition only under clause (b) of sub-section (1) of section 434 of the Act on execution or any process issued on a decree being returned unsatisfied. In paragraph no.21 and 22 of the Company Petition, the respondent has averred the facts which disclose that the appellant company is clearly commercially insolvent and is unable to pay its debts. Contents of paragraph nos.21 and 22 of the petition has been extracted in detail in paragraph no.10 of the impugned judgment. The learned Judge has also noted that in its affidavit in reply, the appellant has not denied the averments made in paragraph nos.21 and 22 of the Company Petition and therefore they are deemed to be admitted. In paragraph no.22 of the Company Petition, the respondent has clearly averred the following:-(a) The appellant company has accumulated losses aggregated to Rs.225.94 crores. (b) Sales income of the appellant has come down drastically to Rs.11.83 crores from 123.78 crores in the previous year.(c) No provision is made by the appellant for interest liability on loans and dues of foreign creditors due to which loss for the year is understated in the profit and loss account.(d) Losses have resulted in the net worth of the appellant being completely eroded. A reference was filed by the appellant to the BIFR under the provisions of Sick Industrial Companies Act, 1985 2985.(g) Appellants cash flow was negligible and effectively negative. (h) Appellants current assets were negative at Rs.153.76 crores. (i) Appellants foreign creditor, Shweta International Pvt.Ltd. had filed a suit against the appellant for recovery of Rs.140 crores.(j) The liability of appellant to the creditors/customers alone (excluding bankers and others) was Rs.166 crores.(k) Appellants liabilities to its bankers and other creditors was Rs.49.07 crores. (l) Appellants bankers viz. State Bank of Saurashtra and Punjab National Bank had recalled the loan facilities and had filed proceedings before Debt Recovery Tribunal, Mumbai.9. None of the allegations made above were denied by the appellant in the affidavit in reply and must therefore be deemed to have been admitted. They disclose that the company has negative the net worth, the cash flow is negligible and effectively negative. Its business has practically come to a stand still. They also disclose that the creditors are to the extent of several hundreds of crores of rupees and that the substratum of the company has disappeared. Nothing was brought on record to show that the financial difficulties were only temporary and given some time. The appellant had the means of repaying the debts. No scheme for rehabilitation was sanctioned by the BIFR under the Sick Industrial Companies Act. In the circumstances, even without even resorting to the deeming provision about the inability of a company to pay its debts made under section 434 of the Companies Act, it must be held that the respondent had established that appellant is unable to pay its debts. Clause (e) of section 433 of the Act provides that the company may be wound up if it is unable to pay its debts. Section 434 of the Act only provides a few circumstances under which a presumption is drawn about the inability of a company to pay its debts. If the circumstances enumerated in section 434 of the Act exist it would be deemed that the company is unable to pay its debts. In our opinion, it is open for the creditor to prove without resorting to the fiction under section 434 of the Act that a company is unable to pay its debts. Of course in the absence of presumption under section 434 of the Act the burden of proving that the company is unable to pay its debts would be heavy when the company contests the claim of the creditor that the company is unable to pay its debts. The court would be slow to infer and hold that the company is unable to pay its debt and would ask for a strict proof. However in the present case, in the light of the averments made in paragraph no.21 and 22 of the petition, which have not been denied by the appellant company, we are satisfied that the respondent has discharged the burden and proved appellant company is commercially insolvent and is unable to pay its debts.
### Response:
0
### Explanation:
8. In our view, in the facts and circumstances of the case in hand, it is not necessary to consider whether a creditor whose claim has culminated into a decree and who has become a decree holder is entitled to file a petition for winding up under clause (a) of(1) of section 434 on failure of the company to pay the decretal amount within the statutory period on service of a demand notice or is required to resort to and file the petition only under clause (b) of(1) of section 434 of the Act on execution or any process issued on a decree being returned unsatisfied. In paragraph no.21 and 22 of the Company Petition, the respondent has averred the facts which disclose that the appellant company is clearly commercially insolvent and is unable to pay its debts. Contents of paragraph nos.21 and 22 of the petition has been extracted in detail in paragraph no.10 of the impugned judgment. The learned Judge has also noted that in its affidavit in reply, the appellant has not denied the averments made in paragraph nos.21 and 22 of the Company Petition and therefore they are deemed to be admitted. In paragraph no.22 of the Company Petition, the respondent has clearly averred theThe appellant company has accumulated losses aggregated to Rs.225.94Sales income of the appellant has come down drastically to Rs.11.83 crores from 123.78 crores in the previous year.(c) No provision is made by the appellant for interest liability on loans and dues of foreign creditors due to which loss for the year is understated in the profit and loss account.(d) Losses have resulted in the net worth of the appellant being completely eroded. A reference was filed by the appellant to the BIFR under the provisions of Sick Industrial Companies Act, 1985 2985.(g) Appellants cash flow was negligible and effectivelyAppellants current assets were negative at Rs.153.76Appellants foreign creditor, Shweta International Pvt.Ltd. had filed a suit against the appellant for recovery of Rs.140 crores.(j) The liability of appellant to the creditors/customers alone (excluding bankers and others) was Rs.166 crores.(k) Appellants liabilities to its bankers and other creditors was Rs.49.07Appellants bankers viz. State Bank of Saurashtra and Punjab National Bank had recalled the loan facilities and had filed proceedings before Debt Recovery Tribunal,the circumstances, even without even resorting to the deeming provision about the inability of a company to pay its debts made under section 434 of the Companies Act, it must be held that the respondent had established that appellant is unable to pay its(e) of section 433 of the Act provides that the company may be wound up if it is unable to pay its debts. Section 434 of the Act only provides a few circumstances under which a presumption is drawn about the inability of a company to pay its debts. If the circumstances enumerated in section 434 of the Act exist it would be deemed that the company is unable to pay its debts. In our opinion, it is open for the creditor to prove without resorting to the fiction under section 434 of the Act that a company is unable to pay its debts. Of course in the absence of presumption under section 434 of the Act the burden of proving that the company is unable to pay its debts would be heavy when the company contests the claim of the creditor that the company is unable to pay its debts. The court would be slow to infer and hold that the company is unable to pay its debt and would ask for a strict proof. However in the present case, in the light of the averments made in paragraph no.21 and 22 of the petition, which have not been denied by the appellant company, we are satisfied that the respondent has discharged the burden and proved appellant company is commercially insolvent and is unable to pay its debts.
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State Of U.P Vs. Ravindra Kumar Sharma | Singh v. Savitri Devi (2003) 8 SCC 319 it was held thus: “15. x x x Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together.16. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.x x x x x23. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous.x x x x x25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.26. In Shrisht Dhawan v. Shaw Bros. (1992) 1 SCC 534 , it has been held that: (SCC p. 553, para 20)“20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct.”x x x x x29. In Chittaranjan Das v. Durgapore Project Ltd. (1995) 99 CWN 897, it has been held: (Cal LJ p. 402, paras 57-58)“57. Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied with in such a situation.58. It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent company would be bound thereby.” 9. This Court in Express Newspapers (P) Ltd.& Ors. v. Union of India & Ors. (1986) 1 SCC 133 at para 119 has held thus: “119. Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Partap Singh v. State of Punjab AIR 1964 SC 72 . A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an ‘alien’ purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtoun (1904) AC 515, ‘that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purpose for which they are conferred’. It was said by Warrington, C.J. in Short v. Poole Corpn. (1926) Ch 66, that: ‘No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative.’” 10. The Division Bench of the High Court has ignored and overlooked the material fact that verification has already been done by the Medical Board and it has been found that certificates of 21% were fraudulently obtained. The High Court has issued a direction in the impugned order for physical verification of the candidate by the authorities and in case he does not suffer from disability so certified candidate can be subjected to fresh medical test. The High Court has overlooked that on mere physical verification it may not be possible to know various kinds of disabilities such as that of eyes, ear impairment etc. That can only be done by the medical examination and particularly when the High Court itself has observed that in case there is genuine suspicion and fraud has been committed medical certification can be reopened. Direction issued in this regard has not been questioned by the respondents and in fact process of re-verification was already over when High Court issued aforesaid directions.11. In our considered opinion in the peculiar facts of this case of such a fraud and genuine suspicion raised in the representation lodged by the Viklang Sangh and when 21% of such certificates have been found to be fraudulently obtained there was no scope for the Division Bench to interfere and issue order to perpetuate fraud, writ is to be declined in such a scenario and no equity can be claimed by the respondents. 12. In the circumstance we | 0[ds]10. The Division Bench of the High Court has ignored and overlooked the material fact that verification has already been done by the Medical Board and it has been found that certificates of 21% were fraudulently obtained. The High Court has issued a direction in the impugned order for physical verification of the candidate by the authorities and in case he does not suffer from disability so certified candidate can be subjected to fresh medical test. The High Court has overlooked that on mere physical verification it may not be possible to know various kinds of disabilities such as that of eyes, ear impairment etc. That can only be done by the medical examination and particularly when the High Court itself has observed that in case there is genuine suspicion and fraud has been committed medical certification can be reopened. Direction issued in this regard has not been questioned by the respondents and in fact process of re-verification was already over when High Court issued aforesaid directions.11. In our considered opinion in the peculiar facts of this case of such a fraud and genuine suspicion raised in the representation lodged by the Viklang Sangh and when 21% of such certificates have been found to be fraudulently obtained there was no scope for the Division Bench to interfere and issue order to perpetuate fraud, writ is to be declined in such a scenario and no equity can be claimed by the | 0 | 2,051 | 254 | ### 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:
Singh v. Savitri Devi (2003) 8 SCC 319 it was held thus: “15. x x x Fraud as is well known vitiates every solemn act. Fraud and justice never dwell together.16. Fraud is a conduct either by letter or words, which induces the other person or authority to take a definite determinative stand as a response to the conduct of the former either by word or letter.17. It is also well settled that misrepresentation itself amounts to fraud. Indeed, innocent misrepresentation may also give reason to claim relief against fraud.18. A fraudulent misrepresentation is called deceit and consists in leading a man into damage by wilfully or recklessly causing him to believe and act on falsehood. It is a fraud in law if a party makes representations which he knows to be false, and injury ensues therefrom although the motive from which the representations proceeded may not have been bad.x x x x x23. An act of fraud on court is always viewed seriously. A collusion or conspiracy with a view to deprive the rights of others in relation to a property would render the transaction void ab initio. Fraud and deception are synonymous.x x x x x25. Although in a given case a deception may not amount to fraud, fraud is anathema to all equitable principles and any affair tainted with fraud cannot be perpetuated or saved by the application of any equitable doctrine including res judicata.26. In Shrisht Dhawan v. Shaw Bros. (1992) 1 SCC 534 , it has been held that: (SCC p. 553, para 20)“20. Fraud and collusion vitiate even the most solemn proceedings in any civilized system of jurisprudence. It is a concept descriptive of human conduct.”x x x x x29. In Chittaranjan Das v. Durgapore Project Ltd. (1995) 99 CWN 897, it has been held: (Cal LJ p. 402, paras 57-58)“57. Suppression of a material document which affects the condition of service of the petitioner, would amount to fraud in such matters. Even the principles of natural justice are not required to be complied with in such a situation.58. It is now well known that a fraud vitiates all solemn acts. Thus, even if the date of birth of the petitioner had been recorded in the service returns on the basis of the certificate produced by the petitioner, the same is not sacrosanct nor the respondent company would be bound thereby.” 9. This Court in Express Newspapers (P) Ltd.& Ors. v. Union of India & Ors. (1986) 1 SCC 133 at para 119 has held thus: “119. Fraud on power voids the order if it is not exercised bona fide for the end design. There is a distinction between exercise of power in good faith and misuse in bad faith. The former arises when an authority misuses its power in breach of law, say, by taking into account bona fide, and with best of intentions, some extraneous matters or by ignoring relevant matters. That would render the impugned act or order ultra vires. It would be a case of fraud on powers. The misuse in bad faith arises when the power is exercised for an improper motive, say, to satisfy a private or personal grudge or for wreaking vengeance of a Minister as in S. Partap Singh v. State of Punjab AIR 1964 SC 72 . A power is exercised maliciously if its repository is motivated by personal animosity towards those who are directly affected by its exercise. Use of a power for an ‘alien’ purpose other than the one for which the power is conferred is mala fide use of that power. Same is the position when an order is made for a purpose other than that which finds place in the order. The ulterior or alien purpose clearly speaks of the misuse of the power and it was observed as early as in 1904 by Lord Lindley in General Assembly of Free Church of Scotland v. Overtoun (1904) AC 515, ‘that there is a condition implied in this as well as in other instruments which create powers, namely, that the powers shall be used bona fide for the purpose for which they are conferred’. It was said by Warrington, C.J. in Short v. Poole Corpn. (1926) Ch 66, that: ‘No public body can be regarded as having statutory authority to act in bad faith or from corrupt motives, and any action purporting to be of that body, but proved to be committed in bad faith or from corrupt motives, would certainly be held to be inoperative.’” 10. The Division Bench of the High Court has ignored and overlooked the material fact that verification has already been done by the Medical Board and it has been found that certificates of 21% were fraudulently obtained. The High Court has issued a direction in the impugned order for physical verification of the candidate by the authorities and in case he does not suffer from disability so certified candidate can be subjected to fresh medical test. The High Court has overlooked that on mere physical verification it may not be possible to know various kinds of disabilities such as that of eyes, ear impairment etc. That can only be done by the medical examination and particularly when the High Court itself has observed that in case there is genuine suspicion and fraud has been committed medical certification can be reopened. Direction issued in this regard has not been questioned by the respondents and in fact process of re-verification was already over when High Court issued aforesaid directions.11. In our considered opinion in the peculiar facts of this case of such a fraud and genuine suspicion raised in the representation lodged by the Viklang Sangh and when 21% of such certificates have been found to be fraudulently obtained there was no scope for the Division Bench to interfere and issue order to perpetuate fraud, writ is to be declined in such a scenario and no equity can be claimed by the respondents. 12. In the circumstance we
### Response:
0
### Explanation:
10. The Division Bench of the High Court has ignored and overlooked the material fact that verification has already been done by the Medical Board and it has been found that certificates of 21% were fraudulently obtained. The High Court has issued a direction in the impugned order for physical verification of the candidate by the authorities and in case he does not suffer from disability so certified candidate can be subjected to fresh medical test. The High Court has overlooked that on mere physical verification it may not be possible to know various kinds of disabilities such as that of eyes, ear impairment etc. That can only be done by the medical examination and particularly when the High Court itself has observed that in case there is genuine suspicion and fraud has been committed medical certification can be reopened. Direction issued in this regard has not been questioned by the respondents and in fact process of re-verification was already over when High Court issued aforesaid directions.11. In our considered opinion in the peculiar facts of this case of such a fraud and genuine suspicion raised in the representation lodged by the Viklang Sangh and when 21% of such certificates have been found to be fraudulently obtained there was no scope for the Division Bench to interfere and issue order to perpetuate fraud, writ is to be declined in such a scenario and no equity can be claimed by the
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MRS. SHAKUNTALA SAWHNEY Vs. MRS. KAUSHALYA SAWHNEY AND OTHERS | specific point of claim by stepsons and step-daughters to inherit to the estate of a deceased female has escaped Parliaments attention while fashioning the legislation. This is not surprising when we appreciate the push and pressure, hurry and worry of law-making modalities. In such a situation, when a sharp conflict has shown up in the rulings of courts, the matter should not be left in doubt or to forensic-linguistic exercises but must be settled by legislative action on the part of Parliament, making explicit its policy on this branch of the Hindu Succession Act. Inaction leads to more litigation, speculation and compulsion for judicial legislation by the Supreme Court. Drafting lapses are understandable but when differences of interpretation come into the open, delay in correctional parliamentary performance is fraught with negative litigative potential. We are hopeful that the Indian draftsmen will disprove the old English jingle: I am the parliamentary draftsman I compose the countrys laws And of half the litigation. I am undoubtedly the cause. 4. The sublime element which we adverted to in the beginning consists in the optimistic endeavour to bring parties together so that the litigation may not cut them asunder, especially when they are sisters. The purpose of law and justice (dharma) is promotion of cohesion and hot production of fission. From this angle, as the arguments proceeded and the legal tempers flared up, we suggested that instead of escalating estrangement the parties may as well compose themselves and their quarrels and re-establish their sisterly relations making a somewhat amicable adjustment of the his before us. Viewing the case from this perspective of tranquillity versus turbulence, but making it perfectly plain that suggestions from the court towards this end will not affect its unbiased adjudicatory duty in case it became necessary, we ventured tentative solutions. Counsel took up the suggestion in the proper spirit and we must record our admiration for the strenuous effort made by the young lawyer Shri M.L. Varma who did his best and successfully persuaded his client who had won in the High Court to come down to a compromise. We need hardly say that such a seasoned and senior counsel like Shri Lal Narain Sinha could be counted upon to aid in the process, and he did. The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion. In the present case, counsel today put in a joint statement On 2.4.79 an incohate compromise purporting to be a full-fledged compromise had been put into court by counsel signed by both sides, but the joint statement of settlement put in today is in complete supersession of the earlier one signed by the parties setting down the terms on which they have agreed. We consider it a success of the finer human spirit over its baser tendency for conflict. 5. Now we come to the hundrum part of the case. According to the compromise some landed properties are to be made over to the appellant. Some cash is also to be paid to the appellant by the respondent. The discretion to fix the sum has been left by the parties to us. We direct that the respondent shall pay a sum of Rs. 75,000/- to the appellant within two weeks of the attachment of the moneys by the trial court being withdrawn. The plaintiff/appellant undertakes that she will get the attachment withdrawn and we direct her to do so. We make it further clear that this withdrawal of the attachment is to facilitate the making of the payment of Rs. 75,000/- from out of the sum now lying in bank deposit. We also direct that landed property worth Rs. 25,000/- will in addition be made over to the appellant from out of the suit property. The further direction must justly follow-and we make-that all the rents due from the properties allotted to the appellant under the joint statement prior to this date and subsequent to this date shall be collectible by the appellant. If they have already been deposited in court, they will be withdrawn by the appellant. The actual allocation of the lands under the joint statement will be made by Mr. Prem Nath Handa within two months from today. Both sides agree on Shri Handa being impartial and competent to make the said allotment. His allotment once made will not be challengeable. Shri Handa pursuant to this direction will make the allocation and put in a statement to that effect in the trial court and that statement will be deemed to be part of this decree. 6. We need hardly mention-it is so obvious-that the land that remains will belong entirely to the respondent and there will be no more claims from the appellant on the respondent in regard to the estate of her step-mother, or in respect of its income or otherwise. 7. Before we part with the case we should like to emphasise that having regard to the merits of the claim, this is not merely a just adjustment of a bitter litigation but a path-finder for the subordinate courts in dealing with family or like disputes. Indeed, we have had to take the lead in giving shape to the settlement as it has finally emerged. Counsel on both sides have also, statesman-like, assisted in producing the settlement. We command this example to the judiciary and to the Bar and reinforce it with what Gandhiji has recorded in his autobiography: I have learnt the true practice of law. I had learnt to find out the better side of human nature and to enter mens hearts. I realised that the true function of a lawyer was to unite parties driven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing, thereby-not even money, certainly not my soul. | 1[ds]The text and the context and the application of traditional rules of statutory interpretation leave the position in an unsatisfactory dilemma of dual import. Even an equitable approach may not necessarily help reach a just solution, because equity shifts as the situation varies, as illustrations presented to us convinced us. Thus, the problem is a little tricky and may well arise frequently. Contradictory positions already taken by different High Courts add to the difficulty and result in the deleterious uncertainty of the law which may well incite, as it has done here, close relations to quarrel over property. Blood may be thicker than water, but wealth breaks all relations on a word of material value sets. The Supreme Court may, when the High Courts disagree, resolve the logomachic conflict by exercising its preference guided by the language and the milieu and following the customary canons of statutory interpretation. While its decision will be binding on account of Article 141 of the Constitution, it may still be fallible because the intendment of Parliament is best brought out by legislative clarification. In the present instance, we have a hunch that the specific point of claim by stepsons and step-daughters to inherit to the estate of a deceased female has escaped Parliaments attention while fashioning the legislation. This is not surprising when we appreciate the push and pressure, hurry and worry of law-making modalities. In such a situation, when a sharp conflict has shown up in the rulings of courts, the matter should not be left in doubt or to forensic-linguistic exercises but must be settled by legislative action on the part of Parliament, making explicit its policy on this branch of the Hindu Succession Act. Inaction leads to more litigation, speculation and compulsion for judicial legislation by the Supreme Court. Drafting lapses are understandable but when differences of interpretation come into the open, delay in correctional parliamentary performance is fraught with negative litigative potential. We are hopeful that the Indian draftsmen will disprove the old English jingle:I am the parliamentary draftsmanI compose the countrys lawsAnd of half the litigation.I am undoubtedly the cause.4. The sublime element which we adverted to in the beginning consists in the optimistic endeavour to bring parties together so that the litigation may not cut them asunder, especially when they are sisters. The purpose of law and justice (dharma) is promotion of cohesion and hot production of fission. From this angle, as the arguments proceeded and the legal tempers flared up, we suggested that instead of escalating estrangement the parties may as well compose themselves and their quarrels and re-establish their sisterly relations making a somewhat amicable adjustment of the his before us. Viewing the case from this perspective of tranquillity versus turbulence, but making it perfectly plain that suggestions from the court towards this end will not affect its unbiased adjudicatory duty in case it became necessary, we ventured tentative solutions. Counsel took up the suggestion in the proper spirit and we must record our admiration for the strenuous effort made by the young lawyer Shri M.L. Varma who did his best and successfully persuaded his client who had won in the High Court to come down to a compromise. We need hardly say that such a seasoned and senior counsel like Shri Lal Narain Sinha could be counted upon to aid in the process, and he did. The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion. In the present case, counsel today put in a joint statement On 2.4.79 an incohate compromise purporting to be a full-fledged compromise had been put into court by counsel signed by both sides, but the joint statement of settlement put in today is in complete supersession of the earlier one signed by the parties setting down the terms on which they have agreed. We consider it a success of the finer human spirit over its baser tendency for conflict.5. Now we come to the hundrum part of the case. According to the compromise some landed properties are to be made over to the appellant. Some cash is also to be paid to the appellant by the respondent. The discretion to fix the sum has been left by the parties to us. We direct that the respondent shall pay a sum of Rs. 75,000/- to the appellant within two weeks of the attachment of the moneys by the trial court being withdrawn. The plaintiff/appellant undertakes that she will get the attachment withdrawn and we direct her to do so. We make it further clear that this withdrawal of the attachment is to facilitate the making of the payment of Rs. 75,000/- from out of the sum now lying in bank deposit. We also direct that landed property worth Rs. 25,000/- will in addition be made over to the appellant from out of the suit property. The further direction must justly follow-and we make-that all the rents due from the properties allotted to the appellant under the joint statement prior to this date and subsequent to this date shall be collectible by the appellant. If they have already been deposited in court, they will be withdrawn by the appellant. The actual allocation of the lands under the joint statement will be made by Mr. Prem Nath Handa within two months from today. Both sides agree on Shri Handa being impartial and competent to make the said allotment. His allotment once made will not be challengeable. Shri Handa pursuant to this direction will make the allocation and put in a statement to that effect in the trial court and that statement will be deemed to be part of this decree.6. We need hardly mention-it is so obvious-that the land that remains will belong entirely to the respondent and there will be no more claims from the appellant on the respondent in regard to the estate of her step-mother, or in respect of its income or otherwise.7. Before we part with the case we should like to emphasise that having regard to the merits of the claim, this is not merely a just adjustment of a bitter litigation but a path-finder for the subordinate courts in dealing with family or like disputes. Indeed, we have had to take the lead in giving shape to the settlement as it has finally emerged. Counsel on both sides have also, statesman-like, assisted in producing the settlement. We command this example to the judiciary and to the Bar and reinforce it with what Gandhiji has recorded in his autobiography:I have learnt the true practice of law. I had learnt to find out the better side of human nature and to enter mens hearts. I realised that the true function of a lawyer was to unite parties driven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing, thereby-not even money, certainly not my soul. | 1 | 1,625 | 1,273 | ### 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:
specific point of claim by stepsons and step-daughters to inherit to the estate of a deceased female has escaped Parliaments attention while fashioning the legislation. This is not surprising when we appreciate the push and pressure, hurry and worry of law-making modalities. In such a situation, when a sharp conflict has shown up in the rulings of courts, the matter should not be left in doubt or to forensic-linguistic exercises but must be settled by legislative action on the part of Parliament, making explicit its policy on this branch of the Hindu Succession Act. Inaction leads to more litigation, speculation and compulsion for judicial legislation by the Supreme Court. Drafting lapses are understandable but when differences of interpretation come into the open, delay in correctional parliamentary performance is fraught with negative litigative potential. We are hopeful that the Indian draftsmen will disprove the old English jingle: I am the parliamentary draftsman I compose the countrys laws And of half the litigation. I am undoubtedly the cause. 4. The sublime element which we adverted to in the beginning consists in the optimistic endeavour to bring parties together so that the litigation may not cut them asunder, especially when they are sisters. The purpose of law and justice (dharma) is promotion of cohesion and hot production of fission. From this angle, as the arguments proceeded and the legal tempers flared up, we suggested that instead of escalating estrangement the parties may as well compose themselves and their quarrels and re-establish their sisterly relations making a somewhat amicable adjustment of the his before us. Viewing the case from this perspective of tranquillity versus turbulence, but making it perfectly plain that suggestions from the court towards this end will not affect its unbiased adjudicatory duty in case it became necessary, we ventured tentative solutions. Counsel took up the suggestion in the proper spirit and we must record our admiration for the strenuous effort made by the young lawyer Shri M.L. Varma who did his best and successfully persuaded his client who had won in the High Court to come down to a compromise. We need hardly say that such a seasoned and senior counsel like Shri Lal Narain Sinha could be counted upon to aid in the process, and he did. The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion. In the present case, counsel today put in a joint statement On 2.4.79 an incohate compromise purporting to be a full-fledged compromise had been put into court by counsel signed by both sides, but the joint statement of settlement put in today is in complete supersession of the earlier one signed by the parties setting down the terms on which they have agreed. We consider it a success of the finer human spirit over its baser tendency for conflict. 5. Now we come to the hundrum part of the case. According to the compromise some landed properties are to be made over to the appellant. Some cash is also to be paid to the appellant by the respondent. The discretion to fix the sum has been left by the parties to us. We direct that the respondent shall pay a sum of Rs. 75,000/- to the appellant within two weeks of the attachment of the moneys by the trial court being withdrawn. The plaintiff/appellant undertakes that she will get the attachment withdrawn and we direct her to do so. We make it further clear that this withdrawal of the attachment is to facilitate the making of the payment of Rs. 75,000/- from out of the sum now lying in bank deposit. We also direct that landed property worth Rs. 25,000/- will in addition be made over to the appellant from out of the suit property. The further direction must justly follow-and we make-that all the rents due from the properties allotted to the appellant under the joint statement prior to this date and subsequent to this date shall be collectible by the appellant. If they have already been deposited in court, they will be withdrawn by the appellant. The actual allocation of the lands under the joint statement will be made by Mr. Prem Nath Handa within two months from today. Both sides agree on Shri Handa being impartial and competent to make the said allotment. His allotment once made will not be challengeable. Shri Handa pursuant to this direction will make the allocation and put in a statement to that effect in the trial court and that statement will be deemed to be part of this decree. 6. We need hardly mention-it is so obvious-that the land that remains will belong entirely to the respondent and there will be no more claims from the appellant on the respondent in regard to the estate of her step-mother, or in respect of its income or otherwise. 7. Before we part with the case we should like to emphasise that having regard to the merits of the claim, this is not merely a just adjustment of a bitter litigation but a path-finder for the subordinate courts in dealing with family or like disputes. Indeed, we have had to take the lead in giving shape to the settlement as it has finally emerged. Counsel on both sides have also, statesman-like, assisted in producing the settlement. We command this example to the judiciary and to the Bar and reinforce it with what Gandhiji has recorded in his autobiography: I have learnt the true practice of law. I had learnt to find out the better side of human nature and to enter mens hearts. I realised that the true function of a lawyer was to unite parties driven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing, thereby-not even money, certainly not my soul.
### Response:
1
### Explanation:
the present instance, we have a hunch that the specific point of claim by stepsons and step-daughters to inherit to the estate of a deceased female has escaped Parliaments attention while fashioning the legislation. This is not surprising when we appreciate the push and pressure, hurry and worry of law-making modalities. In such a situation, when a sharp conflict has shown up in the rulings of courts, the matter should not be left in doubt or to forensic-linguistic exercises but must be settled by legislative action on the part of Parliament, making explicit its policy on this branch of the Hindu Succession Act. Inaction leads to more litigation, speculation and compulsion for judicial legislation by the Supreme Court. Drafting lapses are understandable but when differences of interpretation come into the open, delay in correctional parliamentary performance is fraught with negative litigative potential. We are hopeful that the Indian draftsmen will disprove the old English jingle:I am the parliamentary draftsmanI compose the countrys lawsAnd of half the litigation.I am undoubtedly the cause.4. The sublime element which we adverted to in the beginning consists in the optimistic endeavour to bring parties together so that the litigation may not cut them asunder, especially when they are sisters. The purpose of law and justice (dharma) is promotion of cohesion and hot production of fission. From this angle, as the arguments proceeded and the legal tempers flared up, we suggested that instead of escalating estrangement the parties may as well compose themselves and their quarrels and re-establish their sisterly relations making a somewhat amicable adjustment of the his before us. Viewing the case from this perspective of tranquillity versus turbulence, but making it perfectly plain that suggestions from the court towards this end will not affect its unbiased adjudicatory duty in case it became necessary, we ventured tentative solutions. Counsel took up the suggestion in the proper spirit and we must record our admiration for the strenuous effort made by the young lawyer Shri M.L. Varma who did his best and successfully persuaded his client who had won in the High Court to come down to a compromise. We need hardly say that such a seasoned and senior counsel like Shri Lal Narain Sinha could be counted upon to aid in the process, and he did. The finest hour of justice arrives propitiously when parties, despite falling apart, bury the hatchet and weave a sense of fellowship or reunion. In the present case, counsel today put in a joint statement On 2.4.79 an incohate compromise purporting to be a full-fledged compromise had been put into court by counsel signed by both sides, but the joint statement of settlement put in today is in complete supersession of the earlier one signed by the parties setting down the terms on which they have agreed. We consider it a success of the finer human spirit over its baser tendency for conflict.5. Now we come to the hundrum part of the case. According to the compromise some landed properties are to be made over to the appellant. Some cash is also to be paid to the appellant by the respondent. The discretion to fix the sum has been left by the parties to us. We direct that the respondent shall pay a sum of Rs. 75,000/- to the appellant within two weeks of the attachment of the moneys by the trial court being withdrawn. The plaintiff/appellant undertakes that she will get the attachment withdrawn and we direct her to do so. We make it further clear that this withdrawal of the attachment is to facilitate the making of the payment of Rs. 75,000/- from out of the sum now lying in bank deposit. We also direct that landed property worth Rs. 25,000/- will in addition be made over to the appellant from out of the suit property. The further direction must justly follow-and we make-that all the rents due from the properties allotted to the appellant under the joint statement prior to this date and subsequent to this date shall be collectible by the appellant. If they have already been deposited in court, they will be withdrawn by the appellant. The actual allocation of the lands under the joint statement will be made by Mr. Prem Nath Handa within two months from today. Both sides agree on Shri Handa being impartial and competent to make the said allotment. His allotment once made will not be challengeable. Shri Handa pursuant to this direction will make the allocation and put in a statement to that effect in the trial court and that statement will be deemed to be part of this decree.6. We need hardly mention-it is so obvious-that the land that remains will belong entirely to the respondent and there will be no more claims from the appellant on the respondent in regard to the estate of her step-mother, or in respect of its income or otherwise.7. Before we part with the case we should like to emphasise that having regard to the merits of the claim, this is not merely a just adjustment of a bitter litigation but a path-finder for the subordinate courts in dealing with family or like disputes. Indeed, we have had to take the lead in giving shape to the settlement as it has finally emerged. Counsel on both sides have also, statesman-like, assisted in producing the settlement. We command this example to the judiciary and to the Bar and reinforce it with what Gandhiji has recorded in his autobiography:I have learnt the true practice of law. I had learnt to find out the better side of human nature and to enter mens hearts. I realised that the true function of a lawyer was to unite parties driven asunder. The lesson was so indelibly burnt into me that a large part of my time during the twenty years of my practice as a lawyer was occupied in bringing about private compromises of hundreds of cases. I lost nothing, thereby-not even money, certainly not my soul.
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All Cargo Movers(I) Pvt.Ltd Vs. Dhanesh Badarmal Jain | or that the criminal proceedings were a gross abuse of the process of law, instead, it appears from the record that hearing of the present petition is unduly delayed after grant of ex-parte interim relief on 1.9.1998. Therefore, petition is dismissed, Rule is discharged and interim relief is vacated with no order as to costs.” 15. Mr. P.H. Parekh, learned counsel appearing on behalf of the respondents, has drawn our attention to several documents to show that it had all along been contended by the first respondent that the appellant was also guilty of violating the terms of the Bill of Lading. We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, This Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of the plaintiff-respondent No.1 in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simplicitor does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice. In G. Sagar Suri & Anr. v. State of U.P. & Ors. [(2000) 2 SCC 636, this Court opined: “8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” 16. There in also, having regard to the fact that a criminal complaint under Section 138 of the Negotiable Instruments Act had already been pending, a criminal complaint under Section 406/420 was initiated which was found to be an abuse of the due process of law. In Anil Mahajan v. Bhor Industries Ltd. & Anr. [(2005) 10 SCC 228] , this Court held: “8. The substance of the complaint is to be seen. Mere use of the expression “cheating” in the complaint is of no consequence. Except mention of the words “deceive” and “cheat” in the complaint filed before the Magistrate and “cheating” in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. According to the complainant, a sum of Rs.3,05,39,086 out of the total amount of Rs.3,38,62,860 was paid leaving balance of Rs.33,23,774. We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defence of the accused and the stand taken in reply to notice because the complainant’s own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above-noticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question.” 17. In Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2003) 5 SCC 257, this Court opined: “It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-bearers right at the time of making application for exemption. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the Indian Penal Code does not arise.” {See also Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2005) 3 SCC 670] and Indian Oil Corporation v. NEPC India Ltd. & Ors. [(2006) 6 SCC 736] . 18. For the reasons aforementioned, the | 1[ds]We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, This Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of the plaintiff-respondent No.1 in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simplicitor does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice. | 1 | 2,947 | 274 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
### Input:
or that the criminal proceedings were a gross abuse of the process of law, instead, it appears from the record that hearing of the present petition is unduly delayed after grant of ex-parte interim relief on 1.9.1998. Therefore, petition is dismissed, Rule is discharged and interim relief is vacated with no order as to costs.” 15. Mr. P.H. Parekh, learned counsel appearing on behalf of the respondents, has drawn our attention to several documents to show that it had all along been contended by the first respondent that the appellant was also guilty of violating the terms of the Bill of Lading. We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, This Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of the plaintiff-respondent No.1 in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simplicitor does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice. In G. Sagar Suri & Anr. v. State of U.P. & Ors. [(2000) 2 SCC 636, this Court opined: “8. Jurisdiction under Section 482 of the Code has to be exercised with great care. In exercise of its jurisdiction the High Court is not to examine the matter superficially. It is to be seen if a matter, which is essentially of a civil nature, has been given a cloak of criminal offence. Criminal proceedings are not a short cut of other remedies available in law. Before issuing process a criminal court has to exercise a great deal of caution. For the accused it is a serious matter. This Court has laid certain principles on the basis of which the High Court is to exercise its jurisdiction under Section 482 of the Code. Jurisdiction under this section has to be exercised to prevent abuse of the process of any court or otherwise to secure the ends of justice.” 16. There in also, having regard to the fact that a criminal complaint under Section 138 of the Negotiable Instruments Act had already been pending, a criminal complaint under Section 406/420 was initiated which was found to be an abuse of the due process of law. In Anil Mahajan v. Bhor Industries Ltd. & Anr. [(2005) 10 SCC 228] , this Court held: “8. The substance of the complaint is to be seen. Mere use of the expression “cheating” in the complaint is of no consequence. Except mention of the words “deceive” and “cheat” in the complaint filed before the Magistrate and “cheating” in the complaint filed before the police, there is no averment about the deceit, cheating or fraudulent intention of the accused at the time of entering into MOU wherefrom it can be inferred that the accused had the intention to deceive the complainant to pay. According to the complainant, a sum of Rs.3,05,39,086 out of the total amount of Rs.3,38,62,860 was paid leaving balance of Rs.33,23,774. We need not go into the question of the difference of the amounts mentioned in the complaint which is much more than what is mentioned in the notice and also the defence of the accused and the stand taken in reply to notice because the complainant’s own case is that over rupees three crores was paid and for balance, the accused was giving reasons as above-noticed. The additional reason for not going into these aspects is that a civil suit is pending inter se the parties for the amounts in question.” 17. In Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2003) 5 SCC 257, this Court opined: “It is settled law, by a catena of decisions, that for establishing the offence of cheating, the complainant is required to show that the accused had fraudulent or dishonest intention at the time of making promise or representation. From his making failure to keep promise subsequently, such a culpable intention right at the beginning that is at the time when the promise was made cannot be presumed. It is seen from the records that the exemption certificate contained necessary conditions which were required to be complied with after importation of the machine. Since the GCS could not comply with it, therefore, it rightly paid the necessary duties without taking advantage of the exemption certificate. The conduct of the GCS clearly indicates that there was no fraudulent or dishonest intention of either the GCS or the appellants in their capacities as office-bearers right at the time of making application for exemption. As there was absence of dishonest and fraudulent intention, the question of committing offence under Section 420 of the Indian Penal Code does not arise.” {See also Hira Lal Hari Lal Bhagwati v. CBI, New Delhi [(2005) 3 SCC 670] and Indian Oil Corporation v. NEPC India Ltd. & Ors. [(2006) 6 SCC 736] . 18. For the reasons aforementioned, the
### Response:
1
### Explanation:
We are of the opinion that the allegations made in the complaint petition, even if given face value and taken to be correct in its entirety, do not disclose an offence. For the said purpose, This Court may not only take into consideration the admitted facts but it is also permissible to look into the pleadings of the plaintiff-respondent No.1 in the suit. No allegation whatsoever was made against the appellants herein in the notice. What was contended was negligence and/or breach of contract on the part of the carriers and their agent. Breach of contract simplicitor does not constitute an offence. For the said purpose, allegations in the complaint petition must disclose the necessary ingredients therefor. Where a civil suit is pending and the complaint petition has been filed one year after filing of the civil suit, we may for the purpose of finding out as to whether the said allegations are prima facie cannot notice the correspondences exchanged by the parties and other admitted documents. It is one thing to say that the Court at this juncture would not consider the defence of the accused but it is another thing to say that for exercising the inherent jurisdiction of this Court, it is impermissible also to look to the admitted documents. Criminal proceedings should not be encouraged, when it is found to be mala fide or otherwise an abuse of the process of the Court. Superior Courts while exercising this power should also strive to serve the ends of justice.
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Mewar Sugar Mills Ltd., Bhopal Sagar Vs. Commissioner Of Income-Tax, Rajasthan, Jaipur | the Act", The passage extracted above shows a confusion of the principles applicable for determining what is an expenditure of a capital nature and that which is a revenue expenditure. This Court in a recent decision in R. B. Seth Moolchand Suganchand v. C. I. T. Delhi, Civ. Appeal No. 2020 of 19725 D/- 19-9-1972 (SC) to which two of us were a party (Jaganmohan Reddy and Khanna, JJ.) pointed out the difficulty which the judges are confronted with in the application of the principles and criteria for determining the nature of the expenditure incurred in bringing into existence an asset or advantage for the enduring benefit of the trade, in which context several cases of this Court and the English Courts were examined. It is unnecessary to traverse the same ground again except to say that none of the tests laid down in any of the cases is either exhaustive or universal because it is not always easy to determine whether a particular asset belongs to one category or the other nor does it depend in any way on what may be the nature of the asset in fact or in law. None of the tests suggested in decided cases affords a strict rule of guidance. In that case it was observed :-"The principles enunciated for determining the nature of the expenditure have been sought to be applied to different situations arising on the facts of each case, but the difficulty in matching them with the seeming irreconcilability is perhaps explicable only on the ground that the determination in any particular case is dependent on the character of the lease or agreement, the nature of the asset, the purpose for which the expenditure was incurred and such other factors as in the facts and circumstances of that case would indicate". The determining factor, therefore, will depend largely on the nature of the trade in which the asset is employed and the quality of the payment therefore. It appears to us that on the facts of each case it will have to be determined whether a particular expenditure is a capital expenditure or a revenue expenditure. In this case the payment made is directly related to the sugar manufactured by the appellant. The decision in Assam Bengal Cement Co. Ltd. v. C. L T, West Bengal, 27 ITR 34 .(AIR 1955 SC 89 ) which has been relied upon by the High Court and the Tribunal has in our view been misapplied. In that case the question was, whether in computing the profits of the appellant the sum of Rupees 5,000 and Rupees 35,000/- paid to the lessor by the appellant could be deducted under S. 10 (2) (xv) of the Act. This payment was in addition to the rents and royalties which were agreed to be paid by the lessor and was payable for obtaining a right to acquire an asset of an enduring nature which had necessarily to be incurred for initiation of the business or trading activity. Bhagwati, J., speaking for this Court observed at page 45 :-"It the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of bringing into existence any such asset (or) advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure." In Gotan Lime Syndicate v. Commr. of I. T., 59 ITR 718 = (AIR 1966 SC 1564 ) which was a case dealing with the amount of dead rent payable per acre and the amount of royalty payable for a maund of lump lime and per maund of limestone, it was held that in the absence of material to show that any part of the royalty had to be treated as premium and referable to the acquisition of the mining lease, the royalty payment including the dead rent, had relation only to the lime deposits to be got and had therefore to he treated as a revenue expenditure; and although the appellant did derive an advantage-assuming that that advantage was to last at least for a period of five years-there was only an annual payment of royalty or dead rent which was not a direct payment for securing an enduring advantage but was relatable to the raw material to be obtained. It was further emphasised that the reason why royalty has to be allowed as revenue expenditure is the relation which it has to the raw materials to be excavated or extracted; that the more you take the more royalty you pay and that the minimum payment or the dead rent also has the same characteristic i.e. it is an advance payment in respect of a certain amount of raw material to be excavated. In a similar case dealt with by the Andhra Pradesh High Court in Singareni Collieries Co. Ltd. v. Commr. of I. T., (1967) 66 ITR 553 (Andh Pra) to which one of us (Jaganmohan Reddy, C. J.) was a party dead rent payable under the lease was characterised as having a direct relation to the working of the coal from the mine and so it was a revenue expenditure. In another case Associated Stone Industries (Kotah) Ltd. v. C. 1 T. ( (1971) 82 ITR 896 ) = to which one of us (Hegde, J.) was a party, the royalty was payable at a certain rate or rates on the stone excavated and an additional royalty was leviable at a certain rate on polished stone. On these facts it was held that the nature of the payment was no different from that of the minimum royalty paid and the excess royalty was not paid for getting some additional capital asset or even an enduring benefit but was paid on the basis of commercial expediency not of a capital expenditure. | 1[ds]The determining factor, therefore, will depend largely on the nature of the trade in which the asset is employed and the quality of the payment therefore. It appears to us that on the facts of each case it will have to be determined whether a particular expenditure is a capital expenditure or a revenue expenditure. In this case the payment made is directly related to the sugar manufactured by the appellant. The decision in Assam Bengal Cement Co. Ltd. v. C. L T, West Bengal, 27 ITR 34 .(AIR 1955 SC 89 ) which has been relied upon by the High Court and the Tribunal has in our view been misapplied. In that case the question was, whether in computing the profits of the appellant the sum of Rupees 5,000 and Rupees 35,000/- paid to the lessor by the appellant could be deducted under S. 10 (2) (xv) of the Act. This payment was in addition to the rents and royalties which were agreed to be paid by the lessor and was payable for obtaining a right to acquire an asset of an enduring nature which had necessarily to be incurred for initiation of the business or trading activity. Bhagwati, J., speaking for this Court observed at page 45 :-"It the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of bringing into existence any such asset (or) advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure."In Gotan Lime Syndicate v. Commr. of I. T., 59 ITR 718 = (AIR 1966 SC 1564 ) which was a case dealing with the amount of dead rent payable per acre and the amount of royalty payable for a maund of lump lime and per maund of limestone, it was held that in the absence of material to show that any part of the royalty had to be treated as premium and referable to the acquisition of the mining lease, the royalty payment including the dead rent, had relation only to the lime deposits to be got and had therefore to he treated as a revenue expenditure; and although the appellant did derive an advantage-assuming that that advantage was to last at least for a period of five years-there was only an annual payment of royalty or dead rent which was not a direct payment for securing an enduring advantage but was relatable to the raw material to be obtained. It was further emphasised that the reason why royalty has to be allowed as revenue expenditure is the relation which it has to the raw materials to be excavated or extracted; that the more you take the more royalty you pay and that the minimum payment or the dead rent also has the same characteristic i.e. it is an advance payment in respect of a certain amount of raw material to be excavated. In a similar case dealt with by the Andhra Pradesh High Court in Singareni Collieries Co. Ltd. v. Commr. of I. T., (1967) 66 ITR 553 (Andh Pra) to which one of us (Jaganmohan Reddy, C. J.) was a party dead rent payable under the lease was characterised as having a direct relation to the working of the coal from the mine and so it was a revenue expenditure. In another case Associated Stone Industries (Kotah) Ltd. v. C. 1 T. ( (1971) 82 ITR 896 ) = to which one of us (Hegde, J.) was a party, the royalty was payable at a certain rate or rates on the stone excavated and an additional royalty was leviable at a certain rate on polished stone. On these facts it was held that the nature of the payment was no different from that of the minimum royalty paid and the excess royalty was not paid for getting some additional capital asset or even an enduring benefit but was paid on the basis of commercial expediency not of a capital expenditure. | 1 | 2,975 | 764 | ### Instruction:
Make a prediction on the court's ruling (acceptance (1) or rejection (0) of the petition), and then dissect the proceeding to provide a detailed explanation using key textual passages.
### Input:
the Act", The passage extracted above shows a confusion of the principles applicable for determining what is an expenditure of a capital nature and that which is a revenue expenditure. This Court in a recent decision in R. B. Seth Moolchand Suganchand v. C. I. T. Delhi, Civ. Appeal No. 2020 of 19725 D/- 19-9-1972 (SC) to which two of us were a party (Jaganmohan Reddy and Khanna, JJ.) pointed out the difficulty which the judges are confronted with in the application of the principles and criteria for determining the nature of the expenditure incurred in bringing into existence an asset or advantage for the enduring benefit of the trade, in which context several cases of this Court and the English Courts were examined. It is unnecessary to traverse the same ground again except to say that none of the tests laid down in any of the cases is either exhaustive or universal because it is not always easy to determine whether a particular asset belongs to one category or the other nor does it depend in any way on what may be the nature of the asset in fact or in law. None of the tests suggested in decided cases affords a strict rule of guidance. In that case it was observed :-"The principles enunciated for determining the nature of the expenditure have been sought to be applied to different situations arising on the facts of each case, but the difficulty in matching them with the seeming irreconcilability is perhaps explicable only on the ground that the determination in any particular case is dependent on the character of the lease or agreement, the nature of the asset, the purpose for which the expenditure was incurred and such other factors as in the facts and circumstances of that case would indicate". The determining factor, therefore, will depend largely on the nature of the trade in which the asset is employed and the quality of the payment therefore. It appears to us that on the facts of each case it will have to be determined whether a particular expenditure is a capital expenditure or a revenue expenditure. In this case the payment made is directly related to the sugar manufactured by the appellant. The decision in Assam Bengal Cement Co. Ltd. v. C. L T, West Bengal, 27 ITR 34 .(AIR 1955 SC 89 ) which has been relied upon by the High Court and the Tribunal has in our view been misapplied. In that case the question was, whether in computing the profits of the appellant the sum of Rupees 5,000 and Rupees 35,000/- paid to the lessor by the appellant could be deducted under S. 10 (2) (xv) of the Act. This payment was in addition to the rents and royalties which were agreed to be paid by the lessor and was payable for obtaining a right to acquire an asset of an enduring nature which had necessarily to be incurred for initiation of the business or trading activity. Bhagwati, J., speaking for this Court observed at page 45 :-"It the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of bringing into existence any such asset (or) advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure." In Gotan Lime Syndicate v. Commr. of I. T., 59 ITR 718 = (AIR 1966 SC 1564 ) which was a case dealing with the amount of dead rent payable per acre and the amount of royalty payable for a maund of lump lime and per maund of limestone, it was held that in the absence of material to show that any part of the royalty had to be treated as premium and referable to the acquisition of the mining lease, the royalty payment including the dead rent, had relation only to the lime deposits to be got and had therefore to he treated as a revenue expenditure; and although the appellant did derive an advantage-assuming that that advantage was to last at least for a period of five years-there was only an annual payment of royalty or dead rent which was not a direct payment for securing an enduring advantage but was relatable to the raw material to be obtained. It was further emphasised that the reason why royalty has to be allowed as revenue expenditure is the relation which it has to the raw materials to be excavated or extracted; that the more you take the more royalty you pay and that the minimum payment or the dead rent also has the same characteristic i.e. it is an advance payment in respect of a certain amount of raw material to be excavated. In a similar case dealt with by the Andhra Pradesh High Court in Singareni Collieries Co. Ltd. v. Commr. of I. T., (1967) 66 ITR 553 (Andh Pra) to which one of us (Jaganmohan Reddy, C. J.) was a party dead rent payable under the lease was characterised as having a direct relation to the working of the coal from the mine and so it was a revenue expenditure. In another case Associated Stone Industries (Kotah) Ltd. v. C. 1 T. ( (1971) 82 ITR 896 ) = to which one of us (Hegde, J.) was a party, the royalty was payable at a certain rate or rates on the stone excavated and an additional royalty was leviable at a certain rate on polished stone. On these facts it was held that the nature of the payment was no different from that of the minimum royalty paid and the excess royalty was not paid for getting some additional capital asset or even an enduring benefit but was paid on the basis of commercial expediency not of a capital expenditure.
### Response:
1
### Explanation:
The determining factor, therefore, will depend largely on the nature of the trade in which the asset is employed and the quality of the payment therefore. It appears to us that on the facts of each case it will have to be determined whether a particular expenditure is a capital expenditure or a revenue expenditure. In this case the payment made is directly related to the sugar manufactured by the appellant. The decision in Assam Bengal Cement Co. Ltd. v. C. L T, West Bengal, 27 ITR 34 .(AIR 1955 SC 89 ) which has been relied upon by the High Court and the Tribunal has in our view been misapplied. In that case the question was, whether in computing the profits of the appellant the sum of Rupees 5,000 and Rupees 35,000/- paid to the lessor by the appellant could be deducted under S. 10 (2) (xv) of the Act. This payment was in addition to the rents and royalties which were agreed to be paid by the lessor and was payable for obtaining a right to acquire an asset of an enduring nature which had necessarily to be incurred for initiation of the business or trading activity. Bhagwati, J., speaking for this Court observed at page 45 :-"It the expenditure is made for acquiring or bringing into existence an asset or advantage for the enduring benefit of the business it is properly attributable to capital and is of the nature of capital expenditure. If on the other hand it is made not for the purpose of bringing into existence any such asset (or) advantage but for running the business or working it with a view to produce the profits it is a revenue expenditure."In Gotan Lime Syndicate v. Commr. of I. T., 59 ITR 718 = (AIR 1966 SC 1564 ) which was a case dealing with the amount of dead rent payable per acre and the amount of royalty payable for a maund of lump lime and per maund of limestone, it was held that in the absence of material to show that any part of the royalty had to be treated as premium and referable to the acquisition of the mining lease, the royalty payment including the dead rent, had relation only to the lime deposits to be got and had therefore to he treated as a revenue expenditure; and although the appellant did derive an advantage-assuming that that advantage was to last at least for a period of five years-there was only an annual payment of royalty or dead rent which was not a direct payment for securing an enduring advantage but was relatable to the raw material to be obtained. It was further emphasised that the reason why royalty has to be allowed as revenue expenditure is the relation which it has to the raw materials to be excavated or extracted; that the more you take the more royalty you pay and that the minimum payment or the dead rent also has the same characteristic i.e. it is an advance payment in respect of a certain amount of raw material to be excavated. In a similar case dealt with by the Andhra Pradesh High Court in Singareni Collieries Co. Ltd. v. Commr. of I. T., (1967) 66 ITR 553 (Andh Pra) to which one of us (Jaganmohan Reddy, C. J.) was a party dead rent payable under the lease was characterised as having a direct relation to the working of the coal from the mine and so it was a revenue expenditure. In another case Associated Stone Industries (Kotah) Ltd. v. C. 1 T. ( (1971) 82 ITR 896 ) = to which one of us (Hegde, J.) was a party, the royalty was payable at a certain rate or rates on the stone excavated and an additional royalty was leviable at a certain rate on polished stone. On these facts it was held that the nature of the payment was no different from that of the minimum royalty paid and the excess royalty was not paid for getting some additional capital asset or even an enduring benefit but was paid on the basis of commercial expediency not of a capital expenditure.
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Harbans Lal & Ors Vs. State Of Himachal Pradesh & Ors | be allowed. 8. Meva Ram Kanojia ((1989) 2 SCC 235 ), is the most recent decision which has exhaustively dealt with all the principles bearing on the question of equal pay for equal work in the light of all the previous decisions of this Court. There the petitioner was a "Hearing Therapist" in the All India Institute of Medical Sciences. He claimed pay scale admissible to "Senior Speech Pathologist", "Senior Physiotherapist", "Senior Occupational Therapist", "Audiologist", and "Speech Pathologist". His case was based on the allegations that he was discharging same duties and performing similar functions as "Senior Speech Therapist", "Senior Physiotherapist", "Senior Occupational Therapist", "Audiologist" and "Speech Pathologist". But the court held that the principle of equal pay for equal work cannot be invoked invariably in every kind of service particularly in the area of professional services. It was also held that it is open to the State to classify employees on the basis of qualification, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scales. 9. Reference may also be made to the decision in Federation of All India Customs and Central Excise Stenographers (Recognised) v. Union of India ((1988) 3 SCC 91 ). There the Personal Assistants and Stenographers attached to the Heads of Department in Customs and Central Excise Department of the Ministry of Finance made a claim for parity of wages with the Personal Assistants and Stenographers attached to Joint Secretaries and officers above them in Ministry of Finance. The court while rejecting the claim expressed the view : (SCC p. 100, para 7) "But equal pay must depend upon the nature of the work done it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgments is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasize that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right." 10. Thus the law relating to equal pay for equal work has been practically hammered out and very little remains for further innovation. 11. In the light of the aforesaid principles, we may now consider whether the equality claims of the petitioners could be allowed. We have carefully perused the material on record and given our anxious consideration to the question urged. From the averments in the pleadings of the parties it will be clear that the Corporation has not regularly employed carpenters. Evidently the petitioners are claiming wages payable to the carpenters in government service. We do not think that we could accept their claim. In the first place, even assuming that the petitioners jobs are comparable with the counterparts in the government service, the petitioners cannot enforce the right to "equal pay for equal work". The discrimination complained of must be within the same establishment owned by the same management. A comparison cannot be made with counterparts in other establishments with different management, or even in establishments in different geographical locations though owned by the same master. Unless it is shown that there is a discrimination amongst the same set of employees by the same master in the same establishment, the principle of "equal pay for equal work" cannot be enforced. This was also the view expressed in Meva Ram Kanojia v. A.I.I.M.S. ((1989) 2 SCC 235 ), (SCC p. 245). In the instant case, the petitioners are employed by a company incorporated under the Companies Act. They cannot claim wage payable to their counterparts in government service. 12. Secondly, it may be noted that the petitioners are carpenters; better called as craftsmen. By the general description of their job, one cannot come to the conclusion that every carpenter or craftsman is equal to the other in the performance of his work. The two jobs by the mere nomenclature or by the volume of work performed cannot be rated as equal. It is not just a comparison of physical activity. It requires the consideration of various dimensions of the job. The accuracy required by the job and the dexterity it entails may differ from job to job. It cannot be evaluated by the mere averments in the self-serving affidavits or counter-affidavits of the parties. It must be left to be evaluated and determined by expert body. The principal claim of the petitioners therefore fails and is rejected. 13. The next contention that the petitioners should be paid at least the minimum wages prescribed by the Deputy Commissioner under Ex. P. 2 dated March 20, 1986 cannot also be accepted Ex. P. 2 was issued by the Deputy Commissioner in the exercise of his powers under the H.P. Financial Rules. It is applicable only to skilled and unskilled workers in class IV employees in government service. It has not been extended to employees of the Corporation. The petitioners have been treated as construction workers and they are being paid the minimum wages admissible to such workmen. The Court, therefore, cannot direct the Corporation to apply the rates prescribed under Ex. P. 2 unless the government makes it applicable to employees of the Corporation. 14. As to the claim for regularisation of services of the petitioners, we express no opinion, since the factual data is disputed and is insufficient. We leave the petitioners to work out their rights elsewhere in accordance with law applicable to them. | 0[ds]The principles was incorporated only under Article 39(d) of the Constitution as a Directive Principle of State Policy. Perhaps, for the first time, this Court in Randhir Singh v. Union of India has innovated that it is a constitutional goal capable of being achieved through constitutional remedies. There the court pointed out that that principle has to be read into Article 14 of the Constitution which enjoins the State not to deny any person equality before the law or the equal protection of the law and also into Article 16 which declares that there should be equality of opportunity for all citizens in matters relating to employment or appointment to any office under the State. Randhir Singh case ((1982) 1 SCC 618 : 1982 SCC (L&S) 119 : AIR 1982 SC 879 : (1982) 60 FJR 201), was concerned with a driver constable in the Delhi Police Force under the Delhi Administration. He claimed equal salary for equal work as that of other drivers. The Court found that the petitioner therein performed the same functions and duties as other drivers in the service of Delhi Administration. The court, therefore, directed the Central Government to fix the pay scale of the petitioner on par with his counterparts doing identical work under the sameIn the immediate aftermath of the decision in Randhir Singh case ((1982) 1 SCC 618 : 1982 SCC (L&S) 119 : AIR 1982 SC 879 : (1982) 60 FJR 201), there were bumper cases filed in this Court for enforcement of the right to "equal pay for equal work", perhaps little realising the in-built restrictions in that principle. It may not be necessary here to refer to all those decision since almost all of them have been considered and explained in the recent two decisions to which one of us was a party (K. Jagannatha Shetty, J.). Reference may be made to (i) State of U.P. v. J.P. Chaurasia ((1989) 1 SCC 121 ), and (ii) Meva Ram Kanojia v. All India Institute of Medical Sciences ((1989) 2 SCC 253). In Chaurasia case ((1989) 1 SCC 121 ), the question arose whether it was permissible to have two different pay scales in the same cadre of Bench Secretaries of the Allahabad High Court who were for all practical purpose performing similar duties and having same responsibilities. The court held that the principle of "equal pay for equal work" has no mechanical application in every case of similar work. Article 14 permits reasonable classification founded on rational basis. It is, therefore, not impermissible to provide two different pay scales in the same cadre on the basis of selection based on merit with due regard to experience and seniority. It was pointed out that in service, merit or experience could be the proper basis for classification to promote efficiency in administration and he or she learns also by experience as much as by other means. Apart from that, the court has expressly observed that the higher pay scale to avoid stagnation or resultant frustration for lack of promotional avenues may also beMeva Ram Kanojia ((1989) 2 SCC 235 ), is the most recent decision which has exhaustively dealt with all the principles bearing on the question of equal pay for equal work in the light of all the previous decisions of this Court. There the petitioner was a "Hearing Therapist" in the All India Institute of Medical Sciences. He claimed pay scale admissible to "Senior Speech Pathologist", "Senior Physiotherapist", "Senior Occupational Therapist", "Audiologist", and "Speech Pathologist". His case was based on the allegations that he was discharging same duties and performing similar functions as "Senior Speech Therapist", "Senior Physiotherapist", "Senior Occupational Therapist", "Audiologist" and "Speech Pathologist". But the court held that the principle of equal pay for equal work cannot be invoked invariably in every kind of service particularly in the area of professional services. It was also held that it is open to the State to classify employees on the basis of qualification, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different payReference may also be made to the decision in Federation of All India Customs and Central Excise Stenographers (Recognised) v. Union of India ((1988) 3 SCC 91 ). There the Personal Assistants and Stenographers attached to the Heads of Department in Customs and Central Excise Department of the Ministry of Finance made a claim for parity of wages with the Personal Assistants and Stenographers attached to Joint Secretaries and officers above them in Ministry of Finance. The court while rejecting the claim expressed the view : (SCC p. 100, paraequal pay must depend upon the nature of the work done it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgments is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasize that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right.Thus the law relating to equal pay for equal work has been practically hammered out and very little remains for furtherthe petitioners are claiming wages payable to the carpenters in government service. We do not think that we could accept their claim. In the first place, even assuming that the petitioners jobs are comparable with the counterparts in the government service, the petitioners cannot enforce the right to "equal pay for equal work". The discrimination complained of must be within the same establishment owned by the same management. A comparison cannot be made with counterparts in other establishments with different management, or even in establishments in different geographical locations though owned by the same master. Unless it is shown that there is a discrimination amongst the same set of employees by the same master in the same establishment, the principle of "equal pay for equal work" cannot be enforced. This was also the view expressed in Meva Ram Kanojia v. A.I.I.M.S. ((1989) 2 SCC 235 ), (SCC p. 245). In the instant case, the petitioners are employed by a company incorporated under the Companies Act. They cannot claim wage payable to their counterparts in government. In the light of the aforesaid principles, we may now consider whether the equality claims of the petitioners could be allowed.We have carefully perused the material on record and given our anxious consideration to the question urged. From the averments in the pleadings of the parties it will be clear that the Corporation has not regularly employed carpenters.the petitioners are claiming wages payable to the carpenters in government service. We do not think that we could accept their claim. In the first place, even assuming that the petitioners jobs are comparable with the counterparts in the government service, the petitioners cannot enforce the right to "equal pay for equal work". The discrimination complained of must be within the same establishment owned by the same management. A comparison cannot be made with counterparts in other establishments with different management, or even in establishments in different geographical locations though owned by the same master. Unless it is shown that there is a discrimination amongst the same set of employees by the same master in the same establishment, the principle of "equal pay for equal work" cannot be enforced. This was also the view expressed in Meva Ram Kanojia v. A.I.I.M.S. ((1989) 2 SCC 235 ), (SCC p. 245). In the instant case, the petitioners are employed by a company incorporated under the Companies Act. They cannot claim wage payable to their counterparts in government, it may be noted that the petitioners are carpenters; better called as craftsmen.By the general description of their job, one cannot come to the conclusion that every carpenter or craftsman is equal to the other in the performance of his work. The two jobs by the mere nomenclature or by the volume of work performed cannot be rated as equal. It is not just a comparison of physical activity. It requires the consideration of various dimensions of the job. The accuracy required by the job and the dexterity it entails may differ from job to job. It cannot be evaluated by the mere averments in the self-serving affidavits or counter-affidavits of the parties. It must be left to be evaluated and determined by expert body. The principal claim of the petitioners therefore fails and isis applicable only to skilled and unskilled workers in class IV employees in government service. It has not been extended to employees of the Corporation. The petitioners have been treated as construction workers and they are being paid the minimum wages admissible to such workmen. The Court, therefore, cannot direct the Corporation to apply the rates prescribed under Ex. P. 2 unless the government makes it applicable to employees of theAs to the claim for regularisation of services of the petitioners, we express no opinion, since the factual data is disputed and is insufficient. We leave the petitioners to work out their rights elsewhere in accordance with law applicable to them | 0 | 2,460 | 1,826 | ### 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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be allowed. 8. Meva Ram Kanojia ((1989) 2 SCC 235 ), is the most recent decision which has exhaustively dealt with all the principles bearing on the question of equal pay for equal work in the light of all the previous decisions of this Court. There the petitioner was a "Hearing Therapist" in the All India Institute of Medical Sciences. He claimed pay scale admissible to "Senior Speech Pathologist", "Senior Physiotherapist", "Senior Occupational Therapist", "Audiologist", and "Speech Pathologist". His case was based on the allegations that he was discharging same duties and performing similar functions as "Senior Speech Therapist", "Senior Physiotherapist", "Senior Occupational Therapist", "Audiologist" and "Speech Pathologist". But the court held that the principle of equal pay for equal work cannot be invoked invariably in every kind of service particularly in the area of professional services. It was also held that it is open to the State to classify employees on the basis of qualification, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different pay scales. 9. Reference may also be made to the decision in Federation of All India Customs and Central Excise Stenographers (Recognised) v. Union of India ((1988) 3 SCC 91 ). There the Personal Assistants and Stenographers attached to the Heads of Department in Customs and Central Excise Department of the Ministry of Finance made a claim for parity of wages with the Personal Assistants and Stenographers attached to Joint Secretaries and officers above them in Ministry of Finance. The court while rejecting the claim expressed the view : (SCC p. 100, para 7) "But equal pay must depend upon the nature of the work done it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgments is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasize that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right." 10. Thus the law relating to equal pay for equal work has been practically hammered out and very little remains for further innovation. 11. In the light of the aforesaid principles, we may now consider whether the equality claims of the petitioners could be allowed. We have carefully perused the material on record and given our anxious consideration to the question urged. From the averments in the pleadings of the parties it will be clear that the Corporation has not regularly employed carpenters. Evidently the petitioners are claiming wages payable to the carpenters in government service. We do not think that we could accept their claim. In the first place, even assuming that the petitioners jobs are comparable with the counterparts in the government service, the petitioners cannot enforce the right to "equal pay for equal work". The discrimination complained of must be within the same establishment owned by the same management. A comparison cannot be made with counterparts in other establishments with different management, or even in establishments in different geographical locations though owned by the same master. Unless it is shown that there is a discrimination amongst the same set of employees by the same master in the same establishment, the principle of "equal pay for equal work" cannot be enforced. This was also the view expressed in Meva Ram Kanojia v. A.I.I.M.S. ((1989) 2 SCC 235 ), (SCC p. 245). In the instant case, the petitioners are employed by a company incorporated under the Companies Act. They cannot claim wage payable to their counterparts in government service. 12. Secondly, it may be noted that the petitioners are carpenters; better called as craftsmen. By the general description of their job, one cannot come to the conclusion that every carpenter or craftsman is equal to the other in the performance of his work. The two jobs by the mere nomenclature or by the volume of work performed cannot be rated as equal. It is not just a comparison of physical activity. It requires the consideration of various dimensions of the job. The accuracy required by the job and the dexterity it entails may differ from job to job. It cannot be evaluated by the mere averments in the self-serving affidavits or counter-affidavits of the parties. It must be left to be evaluated and determined by expert body. The principal claim of the petitioners therefore fails and is rejected. 13. The next contention that the petitioners should be paid at least the minimum wages prescribed by the Deputy Commissioner under Ex. P. 2 dated March 20, 1986 cannot also be accepted Ex. P. 2 was issued by the Deputy Commissioner in the exercise of his powers under the H.P. Financial Rules. It is applicable only to skilled and unskilled workers in class IV employees in government service. It has not been extended to employees of the Corporation. The petitioners have been treated as construction workers and they are being paid the minimum wages admissible to such workmen. The Court, therefore, cannot direct the Corporation to apply the rates prescribed under Ex. P. 2 unless the government makes it applicable to employees of the Corporation. 14. As to the claim for regularisation of services of the petitioners, we express no opinion, since the factual data is disputed and is insufficient. We leave the petitioners to work out their rights elsewhere in accordance with law applicable to them.
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"Senior Physiotherapist", "Senior Occupational Therapist", "Audiologist" and "Speech Pathologist". But the court held that the principle of equal pay for equal work cannot be invoked invariably in every kind of service particularly in the area of professional services. It was also held that it is open to the State to classify employees on the basis of qualification, duties and responsibilities of the posts concerned. If the classification has reasonable nexus with the objective sought to be achieved, efficiency in the administration, the State would be justified in prescribing different payReference may also be made to the decision in Federation of All India Customs and Central Excise Stenographers (Recognised) v. Union of India ((1988) 3 SCC 91 ). There the Personal Assistants and Stenographers attached to the Heads of Department in Customs and Central Excise Department of the Ministry of Finance made a claim for parity of wages with the Personal Assistants and Stenographers attached to Joint Secretaries and officers above them in Ministry of Finance. The court while rejecting the claim expressed the view : (SCC p. 100, paraequal pay must depend upon the nature of the work done it cannot be judged by the mere volume of work, there may be qualitative difference as regards reliability and responsibility. Functions may be the same but the responsibilities make a difference. One cannot deny that often the difference is a matter of degree and that there is an element of value judgment by those who are charged with the administration in fixing the scales of pay and other conditions of service. So long as such value judgments is made bona fide, reasonably on an intelligible criterion which has a rational nexus with the object of differentiation, such differentiation will not amount to discrimination. It is important to emphasize that equal pay for equal work is a concomitant of Article 14 of the Constitution. But it follows naturally that equal pay for unequal work will be a negation of that right.Thus the law relating to equal pay for equal work has been practically hammered out and very little remains for furtherthe petitioners are claiming wages payable to the carpenters in government service. We do not think that we could accept their claim. In the first place, even assuming that the petitioners jobs are comparable with the counterparts in the government service, the petitioners cannot enforce the right to "equal pay for equal work". The discrimination complained of must be within the same establishment owned by the same management. A comparison cannot be made with counterparts in other establishments with different management, or even in establishments in different geographical locations though owned by the same master. Unless it is shown that there is a discrimination amongst the same set of employees by the same master in the same establishment, the principle of "equal pay for equal work" cannot be enforced. This was also the view expressed in Meva Ram Kanojia v. A.I.I.M.S. ((1989) 2 SCC 235 ), (SCC p. 245). In the instant case, the petitioners are employed by a company incorporated under the Companies Act. They cannot claim wage payable to their counterparts in government. In the light of the aforesaid principles, we may now consider whether the equality claims of the petitioners could be allowed.We have carefully perused the material on record and given our anxious consideration to the question urged. From the averments in the pleadings of the parties it will be clear that the Corporation has not regularly employed carpenters.the petitioners are claiming wages payable to the carpenters in government service. We do not think that we could accept their claim. In the first place, even assuming that the petitioners jobs are comparable with the counterparts in the government service, the petitioners cannot enforce the right to "equal pay for equal work". The discrimination complained of must be within the same establishment owned by the same management. A comparison cannot be made with counterparts in other establishments with different management, or even in establishments in different geographical locations though owned by the same master. Unless it is shown that there is a discrimination amongst the same set of employees by the same master in the same establishment, the principle of "equal pay for equal work" cannot be enforced. This was also the view expressed in Meva Ram Kanojia v. A.I.I.M.S. ((1989) 2 SCC 235 ), (SCC p. 245). In the instant case, the petitioners are employed by a company incorporated under the Companies Act. They cannot claim wage payable to their counterparts in government, it may be noted that the petitioners are carpenters; better called as craftsmen.By the general description of their job, one cannot come to the conclusion that every carpenter or craftsman is equal to the other in the performance of his work. The two jobs by the mere nomenclature or by the volume of work performed cannot be rated as equal. It is not just a comparison of physical activity. It requires the consideration of various dimensions of the job. The accuracy required by the job and the dexterity it entails may differ from job to job. It cannot be evaluated by the mere averments in the self-serving affidavits or counter-affidavits of the parties. It must be left to be evaluated and determined by expert body. The principal claim of the petitioners therefore fails and isis applicable only to skilled and unskilled workers in class IV employees in government service. It has not been extended to employees of the Corporation. The petitioners have been treated as construction workers and they are being paid the minimum wages admissible to such workmen. The Court, therefore, cannot direct the Corporation to apply the rates prescribed under Ex. P. 2 unless the government makes it applicable to employees of theAs to the claim for regularisation of services of the petitioners, we express no opinion, since the factual data is disputed and is insufficient. We leave the petitioners to work out their rights elsewhere in accordance with law applicable to them
|
Coal India Ltd. Vs. Saroj Kumar Mishra | vigilance enquiry should affect the promotion, confirmation et. Of an employee of CIL and its subsidiaries has not been clearly defined in the above. Quoted office memorandum. Vigilance inquiries take considerable time to complete and in absence of a clear indication regarding the point at which such inquiries should and stand in the ay of an officers promotion, there is scope for confusion on this score. This matter has been engaging the attention of the management for quite some time. Taking into consideration the existing orders of the Government of India in this regard, the following decision has been taken."All orders for promotions will be issued only after vigilance clearance. However, vigilance clearance shall not be withheld for the mere fact that a P.E. or R.C. has been registered by the CBI against an officer or that complaints are being looked into a preliminary enquiry departmentally but no conclusion has been reacted about the prima facie guilt of the officer. Vigilance clearance shall be withheld only when :1) In the case of a Preliminary Enquiry, either by the CBI or departmental agencies, the competent authority, on consideration of the results of the investigation, has formed the opinion that a charge-sheet may be issued on specific imputations for departmental action, and2) In case of a regular case, the competent authority has decided to accord sanction for prosecution of the officer in Court.Until the competent authority arrives at such a conclusion, the officer may be treated at par as per with orders in the matter of promotion, confirmation etc.These instructions, shall come into force with immediate effect." 14. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the vigilance department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a charge sheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise. 15. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They therefore, are, required to be construed strictly. So construed there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard. 16. We may also notice that a revised guideline was also issued on or about 14.5.2002, wherein it was stated; "The Vigilance clearance shall be withheld only on the ground (a) when officer is under suspension (b) when the officer, in respect of whom a charge sheet has been issued and disciplinary proceedings are pending; and (c) when an officer in respect of whom prosecution for a criminal charge is pending." 17. The said circular although is not ipso facto applicable in this case, clearly laws down the law otherwise prevailing. 18. Reliance placed by Mr. Sinha on Manoj Kumar Singh (supra) is wholly misplaced. Therein no law was laid down. It does not contain any ratio decidendi. The question as to whether in absence of any charge-sheet or at least in absence of any satisfaction having been arrived by the disciplinary authority that a prima facie case has been made out for proceeding against an employee, the Vigilance clearance can be given or not, did not fall for consideration at all therein. No issue in that behalf was framed; no argument was advanced; no reason has been assigned in support of the said order. This Court merely stated; "In the present case, the decision to take action against the appellant had been formed on 20.1.99. Therefore, the appellant could not have been granted vigilance clearance. In the circumstances, we see no reason to interfere with the order under challenge. The appeal is, accordingly, dismissed. There shall be no order as to costs." 19. It is surprising that although the appellant is a `State within the meaning of Article 12 of the Constitution of India, it failed even to be fair to this Court inasmuch as the subsequent office memorandum dated 8.1.1981 and/or 14.5.2002 were not brought to its notice. Had the subsequent office memorandums and in particular the one dated 8.1.1981 been brought to the notice of the Court, we have no doubt in our mind that the terms of the order passed in Manoj Kumar Singh (supra) would have been different.20. Similarly, reliance placed on Srikant Chaphekar (supra) by Mr. Sinha, is equally mis-placed. Therein a Departmental Promotion Committee considered the adverse remarks passed against the employee concerned. In this case, a departmental promotion committee did not take into consideration the case of the respondents at all. They were indisputably entitled to be considered for promotion having regard to the rule of seniority-cum-merit. Although, in the said rule, merit has some role to play, but the promotion would not be based only on merit.21. See State of Kerala and Another v. N.M. Thomas and Others [AIR 1976 SC 490 ], E.V. Chinnaiah v. State of Andhra Pradesh & Ors. [(2005) 1 SCC 394] , Bhagwandas Tiwari and Ors. vs. Dewas Shajapur Kshetriya Gramin Bank and Ors. [2006 (11) SCALE 593 ], B.V. Sivaiah and Ors. vs. K. Addanki Babu and Ors. etc. [(1998) 6 SCC 720] .22. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.23. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because, there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties.24. See Zee Telefilms Ltd. and Anr. vs. Union of India and Ors. [(2005) 4 SCC 649] , Guruvayoor Devaswom Managing Committee and Anr. vs. C.K. Rajan and Ors., [(2003) 7 SCC 546] .25. Even, in such a case, the Employer is not in a helpless situation. Despite such promotion if the delinquent employee has suffered punishment, subsequently appropriate steps may be taken on the basis thereof. | 0[ds]19. It is surprising that although the appellant is a `State within the meaning of Article 12 of the Constitution of India, it failed even to be fair to this Court inasmuch as the subsequent office memorandum dated 8.1.1981 and/or 14.5.2002 were not brought to its notice. Had the subsequent office memorandums and in particular the one dated 8.1.1981 been brought to the notice of the Court, we have no doubt in our mind that the terms of the order passed in Manoj Kumar Singh (supra) would have been different.20. Similarly, reliance placed on Srikant Chaphekar (supra) by Mr. Sinha, is equallyTherein a Departmental Promotion Committee considered the adverse remarks passed against the employee concerned. In this case, a departmental promotion committee did not take into consideration the case of the respondents at all. They were indisputably entitled to be considered for promotion having regard to the rule ofAlthough, in the said rule, merit has some role to play, but the promotion would not be based only on merit.21. See State of Kerala and Another v. N.M. Thomas and Others [AIR 1976 SC 490 ], E.V. Chinnaiah v. State of Andhra Pradesh & Ors. [(2005) 1 SCC 394] , Bhagwandas Tiwari and Ors. vs. Dewas Shajapur Kshetriya Gramin Bank and Ors. [2006 (11) SCALE 593 ], B.V. Sivaiah and Ors. vs. K. Addanki Babu and Ors. etc. [(1998) 6 SCC 720] .22. A departmental proceeding is ordinarily said to be initiated only when ais issued.23. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because, there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties.24. See Zee Telefilms Ltd. and Anr. vs. Union of India and Ors. [(2005) 4 SCC 649] , Guruvayoor Devaswom Managing Committee and Anr. vs. C.K. Rajan and Ors., [(2003) 7 SCC 546] .25. Even, in such a case, the Employer is not in a helpless situation. Despite such promotion if the delinquent employee has suffered punishment, subsequently appropriate steps may be taken on the basis thereof. | 0 | 2,722 | 435 | ### 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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vigilance enquiry should affect the promotion, confirmation et. Of an employee of CIL and its subsidiaries has not been clearly defined in the above. Quoted office memorandum. Vigilance inquiries take considerable time to complete and in absence of a clear indication regarding the point at which such inquiries should and stand in the ay of an officers promotion, there is scope for confusion on this score. This matter has been engaging the attention of the management for quite some time. Taking into consideration the existing orders of the Government of India in this regard, the following decision has been taken."All orders for promotions will be issued only after vigilance clearance. However, vigilance clearance shall not be withheld for the mere fact that a P.E. or R.C. has been registered by the CBI against an officer or that complaints are being looked into a preliminary enquiry departmentally but no conclusion has been reacted about the prima facie guilt of the officer. Vigilance clearance shall be withheld only when :1) In the case of a Preliminary Enquiry, either by the CBI or departmental agencies, the competent authority, on consideration of the results of the investigation, has formed the opinion that a charge-sheet may be issued on specific imputations for departmental action, and2) In case of a regular case, the competent authority has decided to accord sanction for prosecution of the officer in Court.Until the competent authority arrives at such a conclusion, the officer may be treated at par as per with orders in the matter of promotion, confirmation etc.These instructions, shall come into force with immediate effect." 14. It is not the case of the appellants that pursuant to or in furtherance of the complaint received by the vigilance department, the competent authority had arrived at a satisfaction as is required in terms of the said circulars that a charge sheet was likely to be issued on the basis of a preliminary enquiry held in that behalf or otherwise. 15. The circular letters issued by the appellants put restrictions on a valuable right of an employee. They therefore, are, required to be construed strictly. So construed there cannot be any doubt whatsoever that the conditions precedent contained therein must be satisfied before any action can be taken in that regard. 16. We may also notice that a revised guideline was also issued on or about 14.5.2002, wherein it was stated; "The Vigilance clearance shall be withheld only on the ground (a) when officer is under suspension (b) when the officer, in respect of whom a charge sheet has been issued and disciplinary proceedings are pending; and (c) when an officer in respect of whom prosecution for a criminal charge is pending." 17. The said circular although is not ipso facto applicable in this case, clearly laws down the law otherwise prevailing. 18. Reliance placed by Mr. Sinha on Manoj Kumar Singh (supra) is wholly misplaced. Therein no law was laid down. It does not contain any ratio decidendi. The question as to whether in absence of any charge-sheet or at least in absence of any satisfaction having been arrived by the disciplinary authority that a prima facie case has been made out for proceeding against an employee, the Vigilance clearance can be given or not, did not fall for consideration at all therein. No issue in that behalf was framed; no argument was advanced; no reason has been assigned in support of the said order. This Court merely stated; "In the present case, the decision to take action against the appellant had been formed on 20.1.99. Therefore, the appellant could not have been granted vigilance clearance. In the circumstances, we see no reason to interfere with the order under challenge. The appeal is, accordingly, dismissed. There shall be no order as to costs." 19. It is surprising that although the appellant is a `State within the meaning of Article 12 of the Constitution of India, it failed even to be fair to this Court inasmuch as the subsequent office memorandum dated 8.1.1981 and/or 14.5.2002 were not brought to its notice. Had the subsequent office memorandums and in particular the one dated 8.1.1981 been brought to the notice of the Court, we have no doubt in our mind that the terms of the order passed in Manoj Kumar Singh (supra) would have been different.20. Similarly, reliance placed on Srikant Chaphekar (supra) by Mr. Sinha, is equally mis-placed. Therein a Departmental Promotion Committee considered the adverse remarks passed against the employee concerned. In this case, a departmental promotion committee did not take into consideration the case of the respondents at all. They were indisputably entitled to be considered for promotion having regard to the rule of seniority-cum-merit. Although, in the said rule, merit has some role to play, but the promotion would not be based only on merit.21. See State of Kerala and Another v. N.M. Thomas and Others [AIR 1976 SC 490 ], E.V. Chinnaiah v. State of Andhra Pradesh & Ors. [(2005) 1 SCC 394] , Bhagwandas Tiwari and Ors. vs. Dewas Shajapur Kshetriya Gramin Bank and Ors. [2006 (11) SCALE 593 ], B.V. Sivaiah and Ors. vs. K. Addanki Babu and Ors. etc. [(1998) 6 SCC 720] .22. A departmental proceeding is ordinarily said to be initiated only when a charge-sheet is issued.23. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because, there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties.24. See Zee Telefilms Ltd. and Anr. vs. Union of India and Ors. [(2005) 4 SCC 649] , Guruvayoor Devaswom Managing Committee and Anr. vs. C.K. Rajan and Ors., [(2003) 7 SCC 546] .25. Even, in such a case, the Employer is not in a helpless situation. Despite such promotion if the delinquent employee has suffered punishment, subsequently appropriate steps may be taken on the basis thereof.
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19. It is surprising that although the appellant is a `State within the meaning of Article 12 of the Constitution of India, it failed even to be fair to this Court inasmuch as the subsequent office memorandum dated 8.1.1981 and/or 14.5.2002 were not brought to its notice. Had the subsequent office memorandums and in particular the one dated 8.1.1981 been brought to the notice of the Court, we have no doubt in our mind that the terms of the order passed in Manoj Kumar Singh (supra) would have been different.20. Similarly, reliance placed on Srikant Chaphekar (supra) by Mr. Sinha, is equallyTherein a Departmental Promotion Committee considered the adverse remarks passed against the employee concerned. In this case, a departmental promotion committee did not take into consideration the case of the respondents at all. They were indisputably entitled to be considered for promotion having regard to the rule ofAlthough, in the said rule, merit has some role to play, but the promotion would not be based only on merit.21. See State of Kerala and Another v. N.M. Thomas and Others [AIR 1976 SC 490 ], E.V. Chinnaiah v. State of Andhra Pradesh & Ors. [(2005) 1 SCC 394] , Bhagwandas Tiwari and Ors. vs. Dewas Shajapur Kshetriya Gramin Bank and Ors. [2006 (11) SCALE 593 ], B.V. Sivaiah and Ors. vs. K. Addanki Babu and Ors. etc. [(1998) 6 SCC 720] .22. A departmental proceeding is ordinarily said to be initiated only when ais issued.23. The floodgate argument also does not appeal to us. The same appears to be an argument of desperation. Only because, there is a possibility of floodgate litigation, a valuable right of a citizen cannot be permitted to be taken away. This Court is bound to determine the respective rights of the parties.24. See Zee Telefilms Ltd. and Anr. vs. Union of India and Ors. [(2005) 4 SCC 649] , Guruvayoor Devaswom Managing Committee and Anr. vs. C.K. Rajan and Ors., [(2003) 7 SCC 546] .25. Even, in such a case, the Employer is not in a helpless situation. Despite such promotion if the delinquent employee has suffered punishment, subsequently appropriate steps may be taken on the basis thereof.
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BABU RAM Vs. SANTOKH SINGH (DECEASED) THROUGH HIS LRS | 21 of List II and Entry 7 of List III make the position very clear. The present Entry 5 of List III shows ?succession? in its fullest sense to be a topic in the Concurrent List. The concept of succession will take within its fold testamentary as well as intestate succession. The idea is, therefore, clear that when it comes to ?transfer, alienation of agricultural land? which are transfers inter vivos, the competence under Entry 18 of List II is with the State legislatures but when it comes to ?intestacy and succession? which are essentially transfers by operation of law as per law applicable to the person upon whose death the succession is to open, both the Union as well as State legislatures are competent to deal with the topic. Consequently, going by the principles of Article 254 of the Constitution of India the matter will have to be dealt with. 16. In the present case it is nobody?s case that the matter relating to succession to an interest in agricultural lands is in any way dealt with by any State legislation operating in the State of Himachal Pradesh or that such legislation must prevail in accordance with the principles under Article 254 of the Constitution of India. The field is occupied only by Section 22 of the Act insofar as State of Himachal Pradesh is concerned. The High Court was, therefore, absolutely right in holding that Section 22 of the Act would operate in respect of succession to agricultural lands in the State. 17. Though, succession to an agricultural land is otherwise dealt with under Section 22 of the Act, the provisions of Section 4(2) of the Act, before its omission, had made it clear that the provisions of the Act would not apply in cases inter alia of devolution of tenancy rights in respect of agricultural holdings. Thus, the effect of Section 4(2) of the Act before its deletion was quite clear that, though the general field of succession including in respect of agricultural lands was dealt with under Section 22 of the Act, insofar as devolution of tenancy rights with respect to agricultural holdings were concerned, the provisions of Section 22 would be inapplicable. The High Court of Bombay was, therefore, absolutely right in its conclusion. However, with the deletion of Section 4(2) of the Act, now there is no exception to the applicability of Section 22 of the Act. But we are not called upon to consider that facet of the matter. 18. We now turn to the next stage of discussion. Even if it be accepted that the provisions of Section 22 would apply in respect of succession to agricultural lands, the question still remains whether the preferential right could be enjoyed by one or more of the heirs. Would that part also be within the competence of the Parliament? The ?right in or over land, land tenures …..? are within the exclusive competence of the State legislatures under Entry 18 of List II of the Constitution. Pre-emption laws enacted by State legislatures are examples where preferential rights have been conferred upon certain categories and classes of holders in cases of certain transfers of agricultural lands. Whether conferring a preferential right by Section 22 would be consistent with the basic idea and principles is the question. 19. We may consider the matter with following three illustrations:- a) Three persons, unrelated to each other, had jointly purchased an agricultural holding, whereafter one of them wished to dispose of his interest. The normal principle of pre-emption may apply in the matter and any of the other joint holders could pre-empt the sale in accordance with rights conferred in that behalf by appropriate State legislation. b) If those three persons were real brothers or sisters and had jointly purchased an agricultural holding, investing their own funds, again like the above scenario, the right of pre-emption will have to be purely in accordance with the relevant provisions of the State legislation. c) But, if, the very same three persons in illustration (b) had inherited an agricultural holding and one of them was desirous of disposing of his or her interest in the holding, the principles of Section 22 of the Act would step in. The reason is clear. The source of title or interest of any of the heirs in the third illustration, is purely through the succession which is recognized in terms of the provisions of the Act. Since the right or interest itself is conferred by the provisions of the Act, the manner in which said right can be exercised has also been specified in the very same legislation. Therefore, the content of preferential right cannot be disassociated in the present case from the principles of succession. They are both part of the same concept. 20. When the Parliament thought of conferring the rights of succession in respect of various properties including agricultural holdings, it put a qualification on the right to transfer to an outsider and gave preferential rights to the other heirs with a designed object. Under the Shastrik Law, the interest of a coparcener would devolve by principles of survivorship to which an exception was made by virtue of Section 6 of the Act. If the conditions stipulated in Section 6 were satisfied, the devolution of such interest of the deceased would not go by survivorship but in accordance with the provisions of the Act. Since the right itself in certain cases was created for the first time by the provisions of the Act, it was thought fit to put a qualification so that the properties belonging to the family would be held within the family, to the extent possible and no outsider would easily be planted in the family properties. In our view, it is with this objective that a preferential right was conferred upon the remaining heirs, in case any of the heirs was desirous of transferring his interest in the property that he received by way of succession under the Act. | 0[ds]11. The decisions rendered by various High Courts show the divergent views in the matter. Some High Courts have held that the provisions of Section 22 of the Act would apply to agricultural lands and in the process have followed the reasoning that weighed with the Orissa High Court in Laxmi Debi AIR 1957 Orissa 1 = 22 (1956) CLT 466 . On the other hand, some High Courts have held to the contrary and have followed the decisions of the Punjab High Court in Jaswant9 and of the Allahabad High Court in Prema Devi AIR 1970 Allahabad 238 . It is the latter line of cases which is relied upon by the learned counsel for the appellant in support of his submissions. It must also be stated that wherever there was question of succession to tenancy rights in respect of agricultural holdings, reference was made by some of the High Courts viz. the High Court of Bombay in Tukaram Genba Jadhav and Ors. vs. Laxman Genba Jadhav and Anr.AIR 1994 Bombay 247 = (1994) 96 Bombay Law Reporter 227 to the effect of the then existing provision under Section 4(2) of the Act. We are not going into the reasoning that weighed with various High Courts in every case, but suffice it to say that the following chart may indicate how the question was answered by some of the High Courts.As regards the High Court of Himachal Pradesh, from which the present matter arises, the Division Bench of the High Court in Roshan Lal (deceased) through his LRs. vs. Pritam Singh and ors. R.S.A.No. 258 of 2012 decided on 1.3.2018had considered all relevant decisions on the point and concluded that the provisions of Section 22 of the Act would apply in relation to succession to agricultural lands. The conclusion arrived at in the leading judgment with which the other learned Judge concurred, was:-Thus, ?succession? falls within the scope of entry No. 5 of List-III and in case a narrow and pedantic or myopic view of interpretation is adopted by accepting succession to an agricultural land, bringing it within the scope of ?rights in and over land?, impliedly no meaning would be attached to entry No.5 as each and every word of the list must be given effect to. If there is no local law on the subject, then the special law will prevail which in the instant case is the Succession Act. The scope, object and purpose of codifying Hindu Law is different. It is to achieve the Constitutional mandate. There is no provincial law dealing with the subject. As such, the Central Act mustview taken by the Division Bench was followed by the High Court in the present matter.changes indicated above as against what was earlier available in Entry 21 of List II and Entry 7 of List III make the position very clear. The present Entry 5 of List III shows ?succession? in its fullest sense to be a topic in the Concurrent List. The concept of succession will take within its fold testamentary as well as intestate succession. The idea is, therefore, clear that when it comes to ?transfer, alienation of agricultural land? which are transfers inter vivos, the competence under Entry 18 of List II is with the State legislatures but when it comes to ?intestacy and succession? which are essentially transfers by operation of law as per law applicable to the person upon whose death the succession is to open, both the Union as well as State legislatures are competent to deal with the topic. Consequently, going by the principles of Article 254 of the Constitution of India the matter will have to be dealt with.In the present case it is nobody?s case that the matter relating to succession to an interest in agricultural lands is in any way dealt with by any State legislation operating in the State of Himachal Pradesh or that such legislation must prevail in accordance with the principles under Article 254 of the Constitution of India. The field is occupied only by Section 22 of the Act insofar as State of Himachal Pradesh is concerned. The High Court was, therefore, absolutely right in holding that Section 22 of the Act would operate in respect of succession to agricultural lands in the State.Though, succession to an agricultural land is otherwise dealt with under Section 22 of the Act, the provisions of Section 4(2) of the Act, before its omission, had made it clear that the provisions of the Act would not apply in cases inter alia of devolution of tenancy rights in respect of agricultural holdings. Thus, the effect of Section 4(2) of the Act before its deletion was quite clear that, though the general field of succession including in respect of agricultural lands was dealt with under Section 22 of the Act, insofar as devolution of tenancy rights with respect to agricultural holdings were concerned, the provisions of Section 22 would be inapplicable. The High Court of Bombay was, therefore, absolutely right in its conclusion. However, with the deletion of Section 4(2) of the Act, now there is no exception to the applicability of Section 22 of the Act. But we are not called upon to consider that facet of the matter.We now turn to the next stage of discussion. Even if it be accepted that the provisions of Section 22 would apply in respect of succession to agricultural lands, the question still remains whether the preferential right could be enjoyed by one or more of the heirs. Would that part also be within the competence of the Parliament? The ?right in or over land, land tenures …..? are within the exclusive competence of the State legislatures under Entry 18 of List II of the Constitution. Pre-emption laws enacted by State legislatures are examples where preferential rights have been conferred upon certain categories and classes of holders in cases of certain transfers of agricultural lands. Whether conferring a preferential right by Section 22 would be consistent with the basic idea and principles is the question.We may consider the matter with following three illustrations:-Three persons, unrelated to each other, had jointly purchased an agricultural holding, whereafter one of them wished to dispose of his interest. The normal principle of pre-emption may apply in the matter and any of the other joint holders could pre-empt the sale in accordance with rights conferred in that behalf by appropriate StateIf those three persons were real brothers or sisters and had jointly purchased an agricultural holding, investing their own funds, again like the above scenario, the right of pre-emption will have to be purely in accordance with the relevant provisions of the StateBut, if, the very same three persons in illustration (b) had inherited an agricultural holding and one of them was desirous of disposing of his or her interest in the holding, the principles of Section 22 of the Act would step in.reason is clear. The source of title or interest of any of the heirs in the third illustration, is purely through the succession which is recognized in terms of the provisions of the Act. Since the right or interest itself is conferred by the provisions of the Act, the manner in which said right can be exercised has also been specified in the very same legislation.the content of preferential right cannot be disassociated in the present case from the principles of succession. They are both part of the same concept.When the Parliament thought of conferring the rights of succession in respect of various properties including agricultural holdings, it put a qualification on the right to transfer to an outsider and gave preferential rights to the other heirs with a designed object. Under the Shastrik Law, the interest of a coparcener would devolve by principles of survivorship to which an exception was made by virtue of Section 6 of the Act. If the conditions stipulated in Section 6 were satisfied, the devolution of such interest of the deceased would not go by survivorship but in accordance with the provisions of the Act. Since the right itself in certain cases was created for the first time by the provisions of the Act, it was thought fit to put a qualification so that the properties belonging to the family would be held within the family, to the extent possible and no outsider would easily be planted in the family properties. In our view, it is with this objective that a preferential right was conferred upon the remaining heirs, in case any of the heirs was desirous of transferring his interest in the property that he received by way of succession under the Act. | 0 | 5,494 | 1,575 | ### Instruction:
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21 of List II and Entry 7 of List III make the position very clear. The present Entry 5 of List III shows ?succession? in its fullest sense to be a topic in the Concurrent List. The concept of succession will take within its fold testamentary as well as intestate succession. The idea is, therefore, clear that when it comes to ?transfer, alienation of agricultural land? which are transfers inter vivos, the competence under Entry 18 of List II is with the State legislatures but when it comes to ?intestacy and succession? which are essentially transfers by operation of law as per law applicable to the person upon whose death the succession is to open, both the Union as well as State legislatures are competent to deal with the topic. Consequently, going by the principles of Article 254 of the Constitution of India the matter will have to be dealt with. 16. In the present case it is nobody?s case that the matter relating to succession to an interest in agricultural lands is in any way dealt with by any State legislation operating in the State of Himachal Pradesh or that such legislation must prevail in accordance with the principles under Article 254 of the Constitution of India. The field is occupied only by Section 22 of the Act insofar as State of Himachal Pradesh is concerned. The High Court was, therefore, absolutely right in holding that Section 22 of the Act would operate in respect of succession to agricultural lands in the State. 17. Though, succession to an agricultural land is otherwise dealt with under Section 22 of the Act, the provisions of Section 4(2) of the Act, before its omission, had made it clear that the provisions of the Act would not apply in cases inter alia of devolution of tenancy rights in respect of agricultural holdings. Thus, the effect of Section 4(2) of the Act before its deletion was quite clear that, though the general field of succession including in respect of agricultural lands was dealt with under Section 22 of the Act, insofar as devolution of tenancy rights with respect to agricultural holdings were concerned, the provisions of Section 22 would be inapplicable. The High Court of Bombay was, therefore, absolutely right in its conclusion. However, with the deletion of Section 4(2) of the Act, now there is no exception to the applicability of Section 22 of the Act. But we are not called upon to consider that facet of the matter. 18. We now turn to the next stage of discussion. Even if it be accepted that the provisions of Section 22 would apply in respect of succession to agricultural lands, the question still remains whether the preferential right could be enjoyed by one or more of the heirs. Would that part also be within the competence of the Parliament? The ?right in or over land, land tenures …..? are within the exclusive competence of the State legislatures under Entry 18 of List II of the Constitution. Pre-emption laws enacted by State legislatures are examples where preferential rights have been conferred upon certain categories and classes of holders in cases of certain transfers of agricultural lands. Whether conferring a preferential right by Section 22 would be consistent with the basic idea and principles is the question. 19. We may consider the matter with following three illustrations:- a) Three persons, unrelated to each other, had jointly purchased an agricultural holding, whereafter one of them wished to dispose of his interest. The normal principle of pre-emption may apply in the matter and any of the other joint holders could pre-empt the sale in accordance with rights conferred in that behalf by appropriate State legislation. b) If those three persons were real brothers or sisters and had jointly purchased an agricultural holding, investing their own funds, again like the above scenario, the right of pre-emption will have to be purely in accordance with the relevant provisions of the State legislation. c) But, if, the very same three persons in illustration (b) had inherited an agricultural holding and one of them was desirous of disposing of his or her interest in the holding, the principles of Section 22 of the Act would step in. The reason is clear. The source of title or interest of any of the heirs in the third illustration, is purely through the succession which is recognized in terms of the provisions of the Act. Since the right or interest itself is conferred by the provisions of the Act, the manner in which said right can be exercised has also been specified in the very same legislation. Therefore, the content of preferential right cannot be disassociated in the present case from the principles of succession. They are both part of the same concept. 20. When the Parliament thought of conferring the rights of succession in respect of various properties including agricultural holdings, it put a qualification on the right to transfer to an outsider and gave preferential rights to the other heirs with a designed object. Under the Shastrik Law, the interest of a coparcener would devolve by principles of survivorship to which an exception was made by virtue of Section 6 of the Act. If the conditions stipulated in Section 6 were satisfied, the devolution of such interest of the deceased would not go by survivorship but in accordance with the provisions of the Act. Since the right itself in certain cases was created for the first time by the provisions of the Act, it was thought fit to put a qualification so that the properties belonging to the family would be held within the family, to the extent possible and no outsider would easily be planted in the family properties. In our view, it is with this objective that a preferential right was conferred upon the remaining heirs, in case any of the heirs was desirous of transferring his interest in the property that he received by way of succession under the Act.
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### Explanation:
Division Bench was followed by the High Court in the present matter.changes indicated above as against what was earlier available in Entry 21 of List II and Entry 7 of List III make the position very clear. The present Entry 5 of List III shows ?succession? in its fullest sense to be a topic in the Concurrent List. The concept of succession will take within its fold testamentary as well as intestate succession. The idea is, therefore, clear that when it comes to ?transfer, alienation of agricultural land? which are transfers inter vivos, the competence under Entry 18 of List II is with the State legislatures but when it comes to ?intestacy and succession? which are essentially transfers by operation of law as per law applicable to the person upon whose death the succession is to open, both the Union as well as State legislatures are competent to deal with the topic. Consequently, going by the principles of Article 254 of the Constitution of India the matter will have to be dealt with.In the present case it is nobody?s case that the matter relating to succession to an interest in agricultural lands is in any way dealt with by any State legislation operating in the State of Himachal Pradesh or that such legislation must prevail in accordance with the principles under Article 254 of the Constitution of India. The field is occupied only by Section 22 of the Act insofar as State of Himachal Pradesh is concerned. The High Court was, therefore, absolutely right in holding that Section 22 of the Act would operate in respect of succession to agricultural lands in the State.Though, succession to an agricultural land is otherwise dealt with under Section 22 of the Act, the provisions of Section 4(2) of the Act, before its omission, had made it clear that the provisions of the Act would not apply in cases inter alia of devolution of tenancy rights in respect of agricultural holdings. Thus, the effect of Section 4(2) of the Act before its deletion was quite clear that, though the general field of succession including in respect of agricultural lands was dealt with under Section 22 of the Act, insofar as devolution of tenancy rights with respect to agricultural holdings were concerned, the provisions of Section 22 would be inapplicable. The High Court of Bombay was, therefore, absolutely right in its conclusion. However, with the deletion of Section 4(2) of the Act, now there is no exception to the applicability of Section 22 of the Act. But we are not called upon to consider that facet of the matter.We now turn to the next stage of discussion. Even if it be accepted that the provisions of Section 22 would apply in respect of succession to agricultural lands, the question still remains whether the preferential right could be enjoyed by one or more of the heirs. Would that part also be within the competence of the Parliament? The ?right in or over land, land tenures …..? are within the exclusive competence of the State legislatures under Entry 18 of List II of the Constitution. Pre-emption laws enacted by State legislatures are examples where preferential rights have been conferred upon certain categories and classes of holders in cases of certain transfers of agricultural lands. Whether conferring a preferential right by Section 22 would be consistent with the basic idea and principles is the question.We may consider the matter with following three illustrations:-Three persons, unrelated to each other, had jointly purchased an agricultural holding, whereafter one of them wished to dispose of his interest. The normal principle of pre-emption may apply in the matter and any of the other joint holders could pre-empt the sale in accordance with rights conferred in that behalf by appropriate StateIf those three persons were real brothers or sisters and had jointly purchased an agricultural holding, investing their own funds, again like the above scenario, the right of pre-emption will have to be purely in accordance with the relevant provisions of the StateBut, if, the very same three persons in illustration (b) had inherited an agricultural holding and one of them was desirous of disposing of his or her interest in the holding, the principles of Section 22 of the Act would step in.reason is clear. The source of title or interest of any of the heirs in the third illustration, is purely through the succession which is recognized in terms of the provisions of the Act. Since the right or interest itself is conferred by the provisions of the Act, the manner in which said right can be exercised has also been specified in the very same legislation.the content of preferential right cannot be disassociated in the present case from the principles of succession. They are both part of the same concept.When the Parliament thought of conferring the rights of succession in respect of various properties including agricultural holdings, it put a qualification on the right to transfer to an outsider and gave preferential rights to the other heirs with a designed object. Under the Shastrik Law, the interest of a coparcener would devolve by principles of survivorship to which an exception was made by virtue of Section 6 of the Act. If the conditions stipulated in Section 6 were satisfied, the devolution of such interest of the deceased would not go by survivorship but in accordance with the provisions of the Act. Since the right itself in certain cases was created for the first time by the provisions of the Act, it was thought fit to put a qualification so that the properties belonging to the family would be held within the family, to the extent possible and no outsider would easily be planted in the family properties. In our view, it is with this objective that a preferential right was conferred upon the remaining heirs, in case any of the heirs was desirous of transferring his interest in the property that he received by way of succession under the Act.
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Helios & Matheson Inform.Tech.Ltd.&Ors Vs. Rajeev Sawhney & Anr | documents referred to in Sections 239 and 240 of the Cr.P.C and that the Court could not quash the charges on the basis of documents which the accused may produce except in exceptional cases where the documents are of unimpeachable character and can be legally translated into evidence. The following passage is, in this regard, apposite: 7. If charges are framed in accordance with Section 240 CrPC on a finding that a prima facie case has been made out -- as has been done in the instant case the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence. 10. It is interesting to note that even in the present SLPs the petitioner has filed an unsigned copy of the alleged minutes of the meeting dated 19th July, 2005. We do not think that we can possibly look into that document without proper proof and without verification of its genuineness. There was and is no clear and unequivocal admission on the record, at least none was brought to our notice, regarding the genuineness of the document or its probative value. The complainant-respondent in this petition was also not willing to concede that the document relied upon could possibly result in the ratification of an act which was non est being a mere forgery. At any rate the document could not be said to be of unimpeachable character nor was there any judicial compulsion much less an exceptional or formidable one to allow its production in revisional proceedings or to accept it as legally admissible evidence for determining the correctness of the order passed by the trial Court. That apart whether or not document dated 19th July, 2005, could possibly have the effect of ratifying the resolution allegedly passed on 28th June, 2005 was also a matter that could not be dealt with summarily, especially when the former did not even make a reference to the latter. 11. The alternative contention urged by learned counsel for the petitioners that there was suppression of information by the complainant as regards filing of a previous complaint before the Magistrate at Bangalore is also without any substance. The fact that the complaint previously filed had been quashed by the High Court on account of filing of a comprehensive complaint out of which these proceedings arise is, in our opinion, a complete answer to the charge of suppression. As on the date the Additional Chief Metropolitan Magistrate, Mumbai, took cognizance of the offences in the complaint filed before him no other complaint was pending in any other Court, the complaint before the Magistrate at Bangalore having had been quashed without a trial on merits. Mere filing of a previous complaint could not in the above circumstances be a bar to the filing of another complaint or for proceedings based on such complaint being taken to their logical conclusion. So also the High Court was, in our opinion, correct in holding that there was no violation of the provision of Section 202 Cr.P.C. to warrant interference in exercise of revisional powers by the Sessions Judge. 12. Reliance placed by learned counsel for the petitioners upon the decisions of this Court in Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. (1998) 5 SCC 749 and State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568 is of no avail. In the former case this Court simply recognized that taking of cognizance is a serious matter and that the magistrate must apply his mind to the nature of the allegations in the complaint, and the material placed before him while issuing process. The complaint in the present case, as noticed earlier, does make specific allegations which would call for a proper inquiry and trial and the magistrate had indeed recorded a prima facie conclusion to that effect. So also the decision in Debendra Nath Padhi (supra) does not help the petitioner. That was a case where the question was whether at the stage of framing of charge, the accused could seek production of documents to prove his innocence. Answering the question in the negative this Court held: The law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. No provision in the Code of Criminal Procedure, 1973 (for short the Code) grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. Satish Mehra case, (1996) 9 SCC 766 holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. 13. | 0[ds]The fact that the complaint previously filed had been quashed by the High Court on account of filing of a comprehensive complaint out of which these proceedings arise is, in our opinion, a complete answer to the charge of suppression. As on the date the Additional Chief Metropolitan Magistrate, Mumbai, took cognizance of the offences in the complaint filed before him no other complaint was pending in any other Court, the complaint before the Magistrate at Bangalore having had been quashed without a trial on merits. Mere filing of a previous complaint could not in the above circumstances be a bar to the filing of another complaint or for proceedings based on such complaint being taken to their logical conclusion. So also the High Court was, in our opinion, correct in holding that there was no violation of the provision of Section 202 Cr.P.C. to warrant interference in exercise of revisional powers by the Sessions Judge. | 0 | 2,939 | 172 | ### Instruction:
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documents referred to in Sections 239 and 240 of the Cr.P.C and that the Court could not quash the charges on the basis of documents which the accused may produce except in exceptional cases where the documents are of unimpeachable character and can be legally translated into evidence. The following passage is, in this regard, apposite: 7. If charges are framed in accordance with Section 240 CrPC on a finding that a prima facie case has been made out -- as has been done in the instant case the person arraigned may, if he feels aggrieved, invoke the revisional jurisdiction of the High Court or the Sessions Judge to contend that the charge-sheet submitted under Section 173 CrPC and documents sent with it did not disclose any ground to presume that he had committed any offence for which he is charged and the revisional court if so satisfied can quash the charges framed against him. To put it differently, once charges are framed under Section 240 CrPC the High Court in its revisional jurisdiction would not be justified in relying upon documents other than those referred to in Sections 239 and 240 CrPC; nor would it be justified in invoking its inherent jurisdiction under Section 482 CrPC to quash the same except in those rare cases where forensic exigencies and formidable compulsions justify such a course. We hasten to add even in such exceptional cases the High Court can look into only those documents which are unimpeachable and can be legally translated into relevant evidence. 10. It is interesting to note that even in the present SLPs the petitioner has filed an unsigned copy of the alleged minutes of the meeting dated 19th July, 2005. We do not think that we can possibly look into that document without proper proof and without verification of its genuineness. There was and is no clear and unequivocal admission on the record, at least none was brought to our notice, regarding the genuineness of the document or its probative value. The complainant-respondent in this petition was also not willing to concede that the document relied upon could possibly result in the ratification of an act which was non est being a mere forgery. At any rate the document could not be said to be of unimpeachable character nor was there any judicial compulsion much less an exceptional or formidable one to allow its production in revisional proceedings or to accept it as legally admissible evidence for determining the correctness of the order passed by the trial Court. That apart whether or not document dated 19th July, 2005, could possibly have the effect of ratifying the resolution allegedly passed on 28th June, 2005 was also a matter that could not be dealt with summarily, especially when the former did not even make a reference to the latter. 11. The alternative contention urged by learned counsel for the petitioners that there was suppression of information by the complainant as regards filing of a previous complaint before the Magistrate at Bangalore is also without any substance. The fact that the complaint previously filed had been quashed by the High Court on account of filing of a comprehensive complaint out of which these proceedings arise is, in our opinion, a complete answer to the charge of suppression. As on the date the Additional Chief Metropolitan Magistrate, Mumbai, took cognizance of the offences in the complaint filed before him no other complaint was pending in any other Court, the complaint before the Magistrate at Bangalore having had been quashed without a trial on merits. Mere filing of a previous complaint could not in the above circumstances be a bar to the filing of another complaint or for proceedings based on such complaint being taken to their logical conclusion. So also the High Court was, in our opinion, correct in holding that there was no violation of the provision of Section 202 Cr.P.C. to warrant interference in exercise of revisional powers by the Sessions Judge. 12. Reliance placed by learned counsel for the petitioners upon the decisions of this Court in Pepsi Foods Ltd. and Anr. v. Special Judicial Magistrate and Ors. (1998) 5 SCC 749 and State of Orissa v. Debendra Nath Padhi (2005) 1 SCC 568 is of no avail. In the former case this Court simply recognized that taking of cognizance is a serious matter and that the magistrate must apply his mind to the nature of the allegations in the complaint, and the material placed before him while issuing process. The complaint in the present case, as noticed earlier, does make specific allegations which would call for a proper inquiry and trial and the magistrate had indeed recorded a prima facie conclusion to that effect. So also the decision in Debendra Nath Padhi (supra) does not help the petitioner. That was a case where the question was whether at the stage of framing of charge, the accused could seek production of documents to prove his innocence. Answering the question in the negative this Court held: The law is that at the time of framing charge or taking cognizance the accused has no right to produce any material. No provision in the Code of Criminal Procedure, 1973 (for short the Code) grants to the accused any right to file any material or document at the stage of framing of charge. That right is granted only at the stage of the trial. Satish Mehra case, (1996) 9 SCC 766 holding that the trial court has powers to consider even materials which the accused may produce at the stage of Section 227 of the Code has not been correctly decided. It is well settled that at the stage of framing of charge the defence of the accused cannot be put forth. The acceptance of the contention of the accused would mean permitting the accused to adduce his defence at the stage of framing of charge and for examination thereof at that stage which is against the criminal jurisprudence. 13.
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### Explanation:
The fact that the complaint previously filed had been quashed by the High Court on account of filing of a comprehensive complaint out of which these proceedings arise is, in our opinion, a complete answer to the charge of suppression. As on the date the Additional Chief Metropolitan Magistrate, Mumbai, took cognizance of the offences in the complaint filed before him no other complaint was pending in any other Court, the complaint before the Magistrate at Bangalore having had been quashed without a trial on merits. Mere filing of a previous complaint could not in the above circumstances be a bar to the filing of another complaint or for proceedings based on such complaint being taken to their logical conclusion. So also the High Court was, in our opinion, correct in holding that there was no violation of the provision of Section 202 Cr.P.C. to warrant interference in exercise of revisional powers by the Sessions Judge.
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Msr Leathers Vs. S. Palaniappan | observed: It is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning, the Court would be justified in assuming that the Legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its power invalid. 28. Reference may also be made to the decision of this Court in Deputy Custodian, Evacuee Property v. Official Receiver (AIR 1965 SC 951 ), where this Court observed: The rules of grammar may suggest that when the section says that the property is evacuee property, it prima facie indicates that the property should bear that character at the time when the opinion is formed. But Mr. Ganapathy Iyer for the appellants has strenuously contended that the construction of s. 7(1) should not be based solely or primarily on the mechanical application of the rules of grammar. He urges that the construction for which Mr. Pathak contents and which, in substance, has been accepted by the High Court, would lead to very anomalous results; and his arguments is that it is open to the Court to take into account the obvious aim and object of the statutory provision when attempting the task of construing its words. If it appears that the obvious aim and object of the statutory provisions would be frustrated by accepting the literal construction suggested by the respondent, then it may be open to the Court to enquire whether an alternative construction which would serve the purpose of achieving the aim and object of the Act, is reasonably possible. 29. The decision of this Court in Nathi Devi v. Radha Devi (2005) 2 SCC 271 , reiterates the rule of purposive construction in the following words: Even if there exists some ambiguity in the language or the same is capable of two interpretations, it is trite the interpretation which serves the object and purport of the Act must be given effect to. In such a case the doctrine of purposive construction should be adopted. 30. To the same effect is the decision of this Court in S.P. Jain v. Krishan Mohan Gupta (1987) 1 SCC 191 , where this Court observed: We are of the opinion that law should take a pragmatic view of the matter and respond to the purpose for which it was made and also take cognizance of the current capabilities of technology and life- style of the community. It is well settled that the purpose of law provides a good guide to the interpretation of the meaning of the Act. We agree with the views of Justice Krishna Iyer in Busching Schmitz Private Ltds case (supra) that legislative futility is to be ruled out so long as interpretative possibility permits. 31. Applying the above rule of interpretation and the provisions of Section 138, we have no hesitation in holding that a prosecution based on a second or successive default in payment of the cheque amount should not be impermissible simply because no prosecution based on the first default which was followed by a statutory notice and a failure to pay had not been launched. If the entire purpose underlying Section 138 of the Negotiable Instruments Act is to compel the drawers to honour their commitments made in the course of their business or other affairs, there is no reason why a person who has issued a cheque which is dishonoured and who fails to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque has not rushed to the court with a complaint based on such default or simply because the drawer has made the holder defer prosecution promising to make arrangements for funds or for any other similar reason. There is in our opinion no real or qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time. 32. The controversy, in our opinion, can be seen from another angle also. If the decision in Sadanandan Bhadrans case (supra) is correct, there is no option for the holder to defer institution of judicial proceedings even when he may like to do so for so simple and innocuous a reason as to extend certain accommodation to the drawer to arrange the payment of the amount. Apart from the fact that an interpretation which curtails the right of the parties to negotiate a possible settlement without prejudice to the right of holder to institute proceedings within the outer period of limitation stipulated by law should be avoided we see no reason why parties should, by a process of interpretation, be forced to launch complaints where they can or may like to defer such action for good and valid reasons. After all, neither the courts nor the parties stand to gain by institution of proceedings which may become unnecessary if cheque amount is paid by the drawer. The magistracy in this country is over-burdened by an avalanche of cases under Section 138 of Negotiable Instruments Act. If the first default itself must in terms of the decision in Sadanandan Bhadrans case (supra) result in filing of prosecution, avoidable litigation would become an inevitable bane of the legislation that was intended only to bring solemnity to cheques without forcing parties to resort to proceedings in the courts of law. While there is no empirical data to suggest that the problems of overburdened magistracy and judicial system at the district level is entirely because of the compulsions arising out of the decisions in Sadanandan Bhadrans case (supra), it is difficult to say that the law declared in that decision has not added to court congestion. | 1[ds]16. With utmost respect to the Judges who decided Sadanandan Bhadrans case (supra) we regret our inability to fall in line with the above line of reasoning to hold that while a cheque is presented afresh the right to prosecute the drawer, if the cheque is dishonoured, is forfeited only because the previous dishonour had not resulted in immediate prosecution of the offender even when a notice under clause (b) of proviso to Section 138 had been served upon the drawer. We are conscious of the fact that Sadanandan Bhadrans case (supra) has been followed in several subsequent decisions of this Court such as in Sil Import, USA v. Exim Aides Silk Exporters, Bangalore, (1999) 4 SCC 567 , Uniplas India Ltd. and Ors. v. State (Govt. of NCT Delhi) and Anr., (2001) 6 SCC 8, Dalmia Cement (Bharat) Ltd. v. Galaxy Traders & Agencies Ltd. and Anr., (2001) 6 SCC 463 , Prem Chand Vijay Kumar v. Yashpal Singh and Anr., (2005) 4 SCC 417 , S.L. Constructions and Anr. v. Alapati Srinivasa Rao and Anr., (2009) 1 SCC 500 , Tameshwar Vaishnav v. Ramvishal Gupta, (2010) 2 SCC 329 17. All these decisions have without disturbing or making any addition to the rationale behind the decision in Sadanandan Bhadrans case (supra) followed the conclusion drawn in the same. We, therefore, propose to deal with the three dimensions that have been highlighted in that case while holding that successive causes of action are not within the comprehension of Sections 138 and 142 of the ActA careful reading of Sections 138 and 142, as noticed above, makes it abundantly clear that the cause of action to institute a complaint comprises the three different factual prerequisites for the institution of a complaint to which we have already referred in the earlier part of this order. None of these prerequisites is in itself sufficient to constitute a complete cause of action for an offence under Section 13821. There is, in our view, nothing either in Section 138 or Section 142 to curtail the said right of the payee, leave alone a forfeiture of the said right for no better reason than the failure of the holder of the cheque to institute prosecution against the drawer when the cause of action to do so had first arisen. Simply because the prosecution for an offence under Section 138 must on the language of Section 142 be instituted within one month from the date of the failure of the drawer to make the payment does not in our view militate against the accrual of multiple causes of action to the holder of the cheque upon failure of the drawer to make the payment of the cheque amount. In the absence of any juristic principle on which such failure to prosecute on the basis of the first default in payment should result in forfeiture, we find it difficult to hold that the payee would lose his right to institute such proceedings on a subsequent default that satisfies all the three requirements of Section 138It is true that a dishonour of the cheque can be made a basis for prosecution of the offender but once, but that is far from saying that the holder of the cheque does not have the discretion to choose out of several such defaults, one default, on which to launch such a prosecution. The omission or the failure of the holder to institute prosecution does not, therefore, give any immunity to the drawer so long as the cheque is dishonoured within its validity period and the conditions precedent for prosecution in terms of the proviso to Section 138 are satisfiedwe need only mention that the limitation which Sadanandan Bhadrans case (supra) reads into that provision does not appear to us to arise. We say so because while a complaint based on a default and notice to pay must be filed within a period of one month from the date the cause of action accrues, which implies the date on which the period of 15 days granted to the drawer to arrange the payment expires, there is nothing in Section 142 to suggest that expiry of any such limitation would absolve him of his criminal liability should the cheque continue to get dishonoured by the bank on subsequent presentations. So long as the cheque is valid and so long as it is dishonoured upon presentation to the bank, the holders right to prosecute the drawer for the default committed by him remains valid and exercisable. The argument that the holder takes advantage by not filing a prosecution against the drawer has not impressed us. By reason of a fresh presentation of a cheque followed by a fresh notice in terms of Section 138, proviso (b), the drawer gets an extended period to make the payment and thereby benefits in terms of further opportunity to pay to avoid prosecution. Such fresh opportunity cannot help the defaulter on any juristic principle, to get a complete absolution from prosecution31. Applying the above rule of interpretation and the provisions of Section 138, we have no hesitation in holding that a prosecution based on a second or successive default in payment of the cheque amount should not be impermissible simply because no prosecution based on the first default which was followed by a statutory notice and a failure to pay had not been launched. If the entire purpose underlying Section 138 of the Negotiable Instruments Act is to compel the drawers to honour their commitments made in the course of their business or other affairs, there is no reason why a person who has issued a cheque which is dishonoured and who fails to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque has not rushed to the court with a complaint based on such default or simply because the drawer has made the holder defer prosecution promising to make arrangements for funds or for any other similar reason. There is in our opinion no real or qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time32. The controversy, in our opinion, can be seen from another angle also. If the decision in Sadanandan Bhadrans case (supra) is correct, there is no option for the holder to defer institution of judicial proceedings even when he may like to do so for so simple and innocuous a reason as to extend certain accommodation to the drawer to arrange the payment of the amount. Apart from the fact that an interpretation which curtails the right of the parties to negotiate a possible settlement without prejudice to the right of holder to institute proceedings within the outer period of limitation stipulated by law should be avoided we see no reason why parties should, by a process of interpretation, be forced to launch complaints where they can or may like to defer such action for good and valid reasons. After all, neither the courts nor the parties stand to gain by institution of proceedings which may become unnecessary if cheque amount is paid by the drawer. The magistracy in this country isby an avalanche of cases under Section 138 of Negotiable Instruments Act. If the first default itself must in terms of the decision in Sadanandan Bhadrans case (supra) result in filing of prosecution, avoidable litigation would become an inevitable bane of the legislation that was intended only to bring solemnity to cheques without forcing parties to resort to proceedings in the courts of law. While there is no empirical data to suggest that the problems of overburdened magistracy and judicial system at the district level is entirely because of the compulsions arising out of the decisions in Sadanandan Bhadrans case (supra), it is difficult to say that the law declared in that decision has not added to court congestion. | 1 | 7,247 | 1,440 | ### Instruction:
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observed: It is a recognised rule of interpretation of statutes that expressions used therein should ordinarily be understood in a sense in which they best harmonise with the object of the statute, and which effectuate the object of the Legislature. If an expression is susceptible of a narrow or technical meaning, as well as a popular meaning, the Court would be justified in assuming that the Legislature used the expression in the sense which would carry out its object and reject that which renders the exercise of its power invalid. 28. Reference may also be made to the decision of this Court in Deputy Custodian, Evacuee Property v. Official Receiver (AIR 1965 SC 951 ), where this Court observed: The rules of grammar may suggest that when the section says that the property is evacuee property, it prima facie indicates that the property should bear that character at the time when the opinion is formed. But Mr. Ganapathy Iyer for the appellants has strenuously contended that the construction of s. 7(1) should not be based solely or primarily on the mechanical application of the rules of grammar. He urges that the construction for which Mr. Pathak contents and which, in substance, has been accepted by the High Court, would lead to very anomalous results; and his arguments is that it is open to the Court to take into account the obvious aim and object of the statutory provision when attempting the task of construing its words. If it appears that the obvious aim and object of the statutory provisions would be frustrated by accepting the literal construction suggested by the respondent, then it may be open to the Court to enquire whether an alternative construction which would serve the purpose of achieving the aim and object of the Act, is reasonably possible. 29. The decision of this Court in Nathi Devi v. Radha Devi (2005) 2 SCC 271 , reiterates the rule of purposive construction in the following words: Even if there exists some ambiguity in the language or the same is capable of two interpretations, it is trite the interpretation which serves the object and purport of the Act must be given effect to. In such a case the doctrine of purposive construction should be adopted. 30. To the same effect is the decision of this Court in S.P. Jain v. Krishan Mohan Gupta (1987) 1 SCC 191 , where this Court observed: We are of the opinion that law should take a pragmatic view of the matter and respond to the purpose for which it was made and also take cognizance of the current capabilities of technology and life- style of the community. It is well settled that the purpose of law provides a good guide to the interpretation of the meaning of the Act. We agree with the views of Justice Krishna Iyer in Busching Schmitz Private Ltds case (supra) that legislative futility is to be ruled out so long as interpretative possibility permits. 31. Applying the above rule of interpretation and the provisions of Section 138, we have no hesitation in holding that a prosecution based on a second or successive default in payment of the cheque amount should not be impermissible simply because no prosecution based on the first default which was followed by a statutory notice and a failure to pay had not been launched. If the entire purpose underlying Section 138 of the Negotiable Instruments Act is to compel the drawers to honour their commitments made in the course of their business or other affairs, there is no reason why a person who has issued a cheque which is dishonoured and who fails to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque has not rushed to the court with a complaint based on such default or simply because the drawer has made the holder defer prosecution promising to make arrangements for funds or for any other similar reason. There is in our opinion no real or qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time. 32. The controversy, in our opinion, can be seen from another angle also. If the decision in Sadanandan Bhadrans case (supra) is correct, there is no option for the holder to defer institution of judicial proceedings even when he may like to do so for so simple and innocuous a reason as to extend certain accommodation to the drawer to arrange the payment of the amount. Apart from the fact that an interpretation which curtails the right of the parties to negotiate a possible settlement without prejudice to the right of holder to institute proceedings within the outer period of limitation stipulated by law should be avoided we see no reason why parties should, by a process of interpretation, be forced to launch complaints where they can or may like to defer such action for good and valid reasons. After all, neither the courts nor the parties stand to gain by institution of proceedings which may become unnecessary if cheque amount is paid by the drawer. The magistracy in this country is over-burdened by an avalanche of cases under Section 138 of Negotiable Instruments Act. If the first default itself must in terms of the decision in Sadanandan Bhadrans case (supra) result in filing of prosecution, avoidable litigation would become an inevitable bane of the legislation that was intended only to bring solemnity to cheques without forcing parties to resort to proceedings in the courts of law. While there is no empirical data to suggest that the problems of overburdened magistracy and judicial system at the district level is entirely because of the compulsions arising out of the decisions in Sadanandan Bhadrans case (supra), it is difficult to say that the law declared in that decision has not added to court congestion.
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in Section 138 or Section 142 to curtail the said right of the payee, leave alone a forfeiture of the said right for no better reason than the failure of the holder of the cheque to institute prosecution against the drawer when the cause of action to do so had first arisen. Simply because the prosecution for an offence under Section 138 must on the language of Section 142 be instituted within one month from the date of the failure of the drawer to make the payment does not in our view militate against the accrual of multiple causes of action to the holder of the cheque upon failure of the drawer to make the payment of the cheque amount. In the absence of any juristic principle on which such failure to prosecute on the basis of the first default in payment should result in forfeiture, we find it difficult to hold that the payee would lose his right to institute such proceedings on a subsequent default that satisfies all the three requirements of Section 138It is true that a dishonour of the cheque can be made a basis for prosecution of the offender but once, but that is far from saying that the holder of the cheque does not have the discretion to choose out of several such defaults, one default, on which to launch such a prosecution. The omission or the failure of the holder to institute prosecution does not, therefore, give any immunity to the drawer so long as the cheque is dishonoured within its validity period and the conditions precedent for prosecution in terms of the proviso to Section 138 are satisfiedwe need only mention that the limitation which Sadanandan Bhadrans case (supra) reads into that provision does not appear to us to arise. We say so because while a complaint based on a default and notice to pay must be filed within a period of one month from the date the cause of action accrues, which implies the date on which the period of 15 days granted to the drawer to arrange the payment expires, there is nothing in Section 142 to suggest that expiry of any such limitation would absolve him of his criminal liability should the cheque continue to get dishonoured by the bank on subsequent presentations. So long as the cheque is valid and so long as it is dishonoured upon presentation to the bank, the holders right to prosecute the drawer for the default committed by him remains valid and exercisable. The argument that the holder takes advantage by not filing a prosecution against the drawer has not impressed us. By reason of a fresh presentation of a cheque followed by a fresh notice in terms of Section 138, proviso (b), the drawer gets an extended period to make the payment and thereby benefits in terms of further opportunity to pay to avoid prosecution. Such fresh opportunity cannot help the defaulter on any juristic principle, to get a complete absolution from prosecution31. Applying the above rule of interpretation and the provisions of Section 138, we have no hesitation in holding that a prosecution based on a second or successive default in payment of the cheque amount should not be impermissible simply because no prosecution based on the first default which was followed by a statutory notice and a failure to pay had not been launched. If the entire purpose underlying Section 138 of the Negotiable Instruments Act is to compel the drawers to honour their commitments made in the course of their business or other affairs, there is no reason why a person who has issued a cheque which is dishonoured and who fails to make payment despite statutory notice served upon him should be immune to prosecution simply because the holder of the cheque has not rushed to the court with a complaint based on such default or simply because the drawer has made the holder defer prosecution promising to make arrangements for funds or for any other similar reason. There is in our opinion no real or qualitative difference between a case where default is committed and prosecution immediately launched and another where the prosecution is deferred till the cheque presented again gets dishonoured for the second or successive time32. The controversy, in our opinion, can be seen from another angle also. If the decision in Sadanandan Bhadrans case (supra) is correct, there is no option for the holder to defer institution of judicial proceedings even when he may like to do so for so simple and innocuous a reason as to extend certain accommodation to the drawer to arrange the payment of the amount. Apart from the fact that an interpretation which curtails the right of the parties to negotiate a possible settlement without prejudice to the right of holder to institute proceedings within the outer period of limitation stipulated by law should be avoided we see no reason why parties should, by a process of interpretation, be forced to launch complaints where they can or may like to defer such action for good and valid reasons. After all, neither the courts nor the parties stand to gain by institution of proceedings which may become unnecessary if cheque amount is paid by the drawer. The magistracy in this country isby an avalanche of cases under Section 138 of Negotiable Instruments Act. If the first default itself must in terms of the decision in Sadanandan Bhadrans case (supra) result in filing of prosecution, avoidable litigation would become an inevitable bane of the legislation that was intended only to bring solemnity to cheques without forcing parties to resort to proceedings in the courts of law. While there is no empirical data to suggest that the problems of overburdened magistracy and judicial system at the district level is entirely because of the compulsions arising out of the decisions in Sadanandan Bhadrans case (supra), it is difficult to say that the law declared in that decision has not added to court congestion.
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Krishan Lal Vs. Food Corpn. Of India | suffered or incurred by the corporation due the contractors negligence or unworkment like performance of any of the services under the contract. XI (f) In the event of termination of the contract envisaged in clause X, of the Senior Regional Manager shall have the rights of forfeit the entire or part of the amount of security deposit lodged by the contractors or to appropriate the Security Deposit or any part thereof in or towards the satisfaction of any sum due to be claimed for any damages, losses, charged expenses or cost that may be suffered or incurred by the Corporation. 8. It was argued on behalf of the appellant that even the widest and most favourable interpretation of the above terms would not entitle the respondent-Corporation to forfeit any amount besides the security deposit and recover any damages, losses or cost that may be suffered or incurred by the respondent-Corporation in getting the contracted work executed through some other agency. Such being the position the respondent-Corporation could at best forfeit the sum of Rs.3,09,500/- towards security deposit and a sum of Rs.2,17,274/- which the respondent- Corporation claimed to have incurred towards extra expenditure in getting the work executed at the risk and cost of the appellant. The extra expenditure incurred by the respondent-Corporation after termination of the contract allotted to the appellant, it is noteworthy, has been quantified by the respondent-Corporation in para 5(i) & (ii) of the counter-affidavit filed on its behalf. The respondent- Corporation has inter alia said: I say that during the contract period of six months of the petitioner, the Respondent Corporation had to incur an extra expenditure of Rs.2,17,274/- and suffered heavy losses. I say that security amount of Rs.10 lakhs was furnished by the petitioner as security for fulfilment of contract in terms of High Court order. Even after depositing Rs.10 lakhs as per the High Court Orders, the petitioner did not resume the work and the entire amount of Rs. 10 lakhs was rightly forfeited against excess payment made towards alternative arrangements made at the risk and cost of the petitioner. I say that the amount of Rs.10lakhs was stand forfeited under Clause X(b) read with Clause XI(f) of the contract. 9. It was in the light of the above assertions, argued Mr. Jha, learned counsel for the appellant, that the respondent- Corporation could not lay any claim against the amount in question in excess of Rs.3,09,500/ plus Rs.2,17,274/- and that the balance amount was liable to be refunded to the appellant. 10. On behalf of the respondent-Corporation it was argued that the appellant ought to have resorted to the arbitration clause under the agreement instead of filing a writ petition in the High Court. Alternatively, it was argued that the security deposit having been made under the orders of the High Court, the entire amount of Rs.10 lakhs was liable to be forfeited on the failure of the appellant to work once the same was allotted to him. 11. It is true that there was an arbitration clause in the agreement executed between the parties. It is equally true that, keeping in view the nature of the controversy, any claim for refund of the amount deposited by the appellant could be and ought to have been raised before the Arbitrator under the said arbitration. The fact, however, remains that the High Court had entertained the writ petition as early as in the year 2002 and the present appeals have been pending in this Court for the past ten years or so. Relegating the parties to arbitration will not be feasible at this stage especially when the proceedings before the Arbitrator may also drag on for another decade. Availability of an alternative remedy for adjudication of the disputes is, therefore, not a ground that can be pressed into service at this belated stage and is accordingly rejected. 12. Equally untenable is the alternative argument that since the amount of Rs.10 lakhs had been deposited pursuant to the order passed by the High Court the same was liable to be forfeited in toto in the event of any breach of the agreement between the parties. The deposit was, no doubt, made pursuant to the direction of the High Court but the said direction did not go further to say that in case the appellant committed a breach of the agreement executed between the parties, any such breach would result in the forfeiture of the entire amount of Rs.10 lakhs. A closer reading of the order passed by the High Court leaves no manner of doubt that the amount was deposited but was refundable in case the contract was not allotted and was adjustable towards security if the appellant succeeded in emerging as the successful tenderer. In the event of adjustment of the amount towards security the breach of the contract would have led to the forfeiture of the security amount alone and not the entire amount deposited by the appellant. 13. Even so, the terms of the contract provided for execution of the contracted work through another agency at the risk and cost of the appellant. It is not in dispute that the respondent-Corporation had engaged an alternative agency for getting the work executed. It is also not in dispute that an extra amount was incurred by the respondent-Corporation in that regard. If that be so, the amount lying with the respondent-Corporation could be utilised for recovery of the loss. The respondent- Corporation could therefore make a claim for recovery of the extra expenditure, incurred by it. We must mention, in fairness to Mr. Jha, that the respondent-Corporations right to forfeit the security amount or to recover the extra expenditure incurred in getting the work executed from alternative agency was not disputed by him. 14. That being the position, the respondent-Corporation would be entitled to retain a sum of Rs.3,09,500/ plus Rs.2,17,274/- = Rs.5,26,774/-. The balance amount of Rs.4,73,226/- ought to have been refunded to the appellant on the admitted factual and contractual premise. | 1[ds]11. It is true that there was an arbitration clause in the agreement executed between the parties. It is equally true that, keeping in view the nature of the controversy, any claim for refund of the amount deposited by the appellant could be and ought to have been raised before the Arbitrator under the said arbitration. The fact, however, remains that the High Court had entertained the writ petition as early as in the year 2002 and the present appeals have been pending in this Court for the past ten years or so. Relegating the parties to arbitration will not be feasible at this stage especially when the proceedings before the Arbitrator may also drag on for another decade. Availability of an alternative remedy for adjudication of the disputes is, therefore, not a ground that can be pressed into service at this belated stage and is accordingly rejected12. Equally untenable is the alternative argument that since the amount of Rs.10 lakhs had been deposited pursuant to the order passed by the High Court the same was liable to be forfeited in toto in the event of any breach of the agreement between the parties. The deposit was, no doubt, made pursuant to the direction of the High Court but the said direction did not go further to say that in case the appellant committed a breach of the agreement executed between the parties, any such breach would result in the forfeiture of the entire amount of Rs.10 lakhs. A closer reading of the order passed by the High Court leaves no manner of doubt that the amount was deposited but was refundable in case the contract was not allotted and was adjustable towards security if the appellant succeeded in emerging as the successful tenderer. In the event of adjustment of the amount towards security the breach of the contract would have led to the forfeiture of the security amount alone and not the entire amount deposited by the appellant13. Even so, the terms of the contract provided for execution of the contracted work through another agency at the risk and cost of the appellant. It is not in dispute that the respondent-Corporation had engaged an alternative agency for getting the work executed. It is also not in dispute that an extra amount was incurred by the respondent-Corporation in that regard. If that be so, the amount lying with the respondent-Corporation could be utilised for recovery of the loss. The respondent- Corporation could therefore make a claim for recovery of the extra expenditure, incurred by it. We must mention, in fairness to Mr. Jha, that the respondent-Corporations right to forfeit the security amount or to recover the extra expenditure incurred in getting the work executed from alternative agency was not disputed by him14. That being the position, the respondent-Corporation would be entitled to retain a sum of Rs.3,09,500/ plus Rs.2,17,274/- = Rs.5,26,774/-. The balance amount of Rs.4,73,226/- ought to have been refunded to the appellant on the admitted factual and contractual premise. | 1 | 2,739 | 538 | ### Instruction:
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suffered or incurred by the corporation due the contractors negligence or unworkment like performance of any of the services under the contract. XI (f) In the event of termination of the contract envisaged in clause X, of the Senior Regional Manager shall have the rights of forfeit the entire or part of the amount of security deposit lodged by the contractors or to appropriate the Security Deposit or any part thereof in or towards the satisfaction of any sum due to be claimed for any damages, losses, charged expenses or cost that may be suffered or incurred by the Corporation. 8. It was argued on behalf of the appellant that even the widest and most favourable interpretation of the above terms would not entitle the respondent-Corporation to forfeit any amount besides the security deposit and recover any damages, losses or cost that may be suffered or incurred by the respondent-Corporation in getting the contracted work executed through some other agency. Such being the position the respondent-Corporation could at best forfeit the sum of Rs.3,09,500/- towards security deposit and a sum of Rs.2,17,274/- which the respondent- Corporation claimed to have incurred towards extra expenditure in getting the work executed at the risk and cost of the appellant. The extra expenditure incurred by the respondent-Corporation after termination of the contract allotted to the appellant, it is noteworthy, has been quantified by the respondent-Corporation in para 5(i) & (ii) of the counter-affidavit filed on its behalf. The respondent- Corporation has inter alia said: I say that during the contract period of six months of the petitioner, the Respondent Corporation had to incur an extra expenditure of Rs.2,17,274/- and suffered heavy losses. I say that security amount of Rs.10 lakhs was furnished by the petitioner as security for fulfilment of contract in terms of High Court order. Even after depositing Rs.10 lakhs as per the High Court Orders, the petitioner did not resume the work and the entire amount of Rs. 10 lakhs was rightly forfeited against excess payment made towards alternative arrangements made at the risk and cost of the petitioner. I say that the amount of Rs.10lakhs was stand forfeited under Clause X(b) read with Clause XI(f) of the contract. 9. It was in the light of the above assertions, argued Mr. Jha, learned counsel for the appellant, that the respondent- Corporation could not lay any claim against the amount in question in excess of Rs.3,09,500/ plus Rs.2,17,274/- and that the balance amount was liable to be refunded to the appellant. 10. On behalf of the respondent-Corporation it was argued that the appellant ought to have resorted to the arbitration clause under the agreement instead of filing a writ petition in the High Court. Alternatively, it was argued that the security deposit having been made under the orders of the High Court, the entire amount of Rs.10 lakhs was liable to be forfeited on the failure of the appellant to work once the same was allotted to him. 11. It is true that there was an arbitration clause in the agreement executed between the parties. It is equally true that, keeping in view the nature of the controversy, any claim for refund of the amount deposited by the appellant could be and ought to have been raised before the Arbitrator under the said arbitration. The fact, however, remains that the High Court had entertained the writ petition as early as in the year 2002 and the present appeals have been pending in this Court for the past ten years or so. Relegating the parties to arbitration will not be feasible at this stage especially when the proceedings before the Arbitrator may also drag on for another decade. Availability of an alternative remedy for adjudication of the disputes is, therefore, not a ground that can be pressed into service at this belated stage and is accordingly rejected. 12. Equally untenable is the alternative argument that since the amount of Rs.10 lakhs had been deposited pursuant to the order passed by the High Court the same was liable to be forfeited in toto in the event of any breach of the agreement between the parties. The deposit was, no doubt, made pursuant to the direction of the High Court but the said direction did not go further to say that in case the appellant committed a breach of the agreement executed between the parties, any such breach would result in the forfeiture of the entire amount of Rs.10 lakhs. A closer reading of the order passed by the High Court leaves no manner of doubt that the amount was deposited but was refundable in case the contract was not allotted and was adjustable towards security if the appellant succeeded in emerging as the successful tenderer. In the event of adjustment of the amount towards security the breach of the contract would have led to the forfeiture of the security amount alone and not the entire amount deposited by the appellant. 13. Even so, the terms of the contract provided for execution of the contracted work through another agency at the risk and cost of the appellant. It is not in dispute that the respondent-Corporation had engaged an alternative agency for getting the work executed. It is also not in dispute that an extra amount was incurred by the respondent-Corporation in that regard. If that be so, the amount lying with the respondent-Corporation could be utilised for recovery of the loss. The respondent- Corporation could therefore make a claim for recovery of the extra expenditure, incurred by it. We must mention, in fairness to Mr. Jha, that the respondent-Corporations right to forfeit the security amount or to recover the extra expenditure incurred in getting the work executed from alternative agency was not disputed by him. 14. That being the position, the respondent-Corporation would be entitled to retain a sum of Rs.3,09,500/ plus Rs.2,17,274/- = Rs.5,26,774/-. The balance amount of Rs.4,73,226/- ought to have been refunded to the appellant on the admitted factual and contractual premise.
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11. It is true that there was an arbitration clause in the agreement executed between the parties. It is equally true that, keeping in view the nature of the controversy, any claim for refund of the amount deposited by the appellant could be and ought to have been raised before the Arbitrator under the said arbitration. The fact, however, remains that the High Court had entertained the writ petition as early as in the year 2002 and the present appeals have been pending in this Court for the past ten years or so. Relegating the parties to arbitration will not be feasible at this stage especially when the proceedings before the Arbitrator may also drag on for another decade. Availability of an alternative remedy for adjudication of the disputes is, therefore, not a ground that can be pressed into service at this belated stage and is accordingly rejected12. Equally untenable is the alternative argument that since the amount of Rs.10 lakhs had been deposited pursuant to the order passed by the High Court the same was liable to be forfeited in toto in the event of any breach of the agreement between the parties. The deposit was, no doubt, made pursuant to the direction of the High Court but the said direction did not go further to say that in case the appellant committed a breach of the agreement executed between the parties, any such breach would result in the forfeiture of the entire amount of Rs.10 lakhs. A closer reading of the order passed by the High Court leaves no manner of doubt that the amount was deposited but was refundable in case the contract was not allotted and was adjustable towards security if the appellant succeeded in emerging as the successful tenderer. In the event of adjustment of the amount towards security the breach of the contract would have led to the forfeiture of the security amount alone and not the entire amount deposited by the appellant13. Even so, the terms of the contract provided for execution of the contracted work through another agency at the risk and cost of the appellant. It is not in dispute that the respondent-Corporation had engaged an alternative agency for getting the work executed. It is also not in dispute that an extra amount was incurred by the respondent-Corporation in that regard. If that be so, the amount lying with the respondent-Corporation could be utilised for recovery of the loss. The respondent- Corporation could therefore make a claim for recovery of the extra expenditure, incurred by it. We must mention, in fairness to Mr. Jha, that the respondent-Corporations right to forfeit the security amount or to recover the extra expenditure incurred in getting the work executed from alternative agency was not disputed by him14. That being the position, the respondent-Corporation would be entitled to retain a sum of Rs.3,09,500/ plus Rs.2,17,274/- = Rs.5,26,774/-. The balance amount of Rs.4,73,226/- ought to have been refunded to the appellant on the admitted factual and contractual premise.
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State Of Kerala Vs. M/S Kerala Rare Earth & Minerals Limited | royalty, surface rent or dead rent, as the case may be, from time to time at the same rate at which it would have been payable under this Act if such prospecting or mining operations had been undertaken by a private person under prospecting licence or mining lease." 14. There is no gainsaying that the State Government can reserve any area not already held under any prospecting licence or mining lease for undertaking prospecting or mining operations through a Government company or corporation owned or controlled by it, but, in terms of sub-Section(2) of Section 17A (supra) where the Government proposes to do so, it shall by notification in the official gazette specify the boundaries of such area and the mineral or minerals in respect of which such areas will be reserved. Three distinct requirements emerge from Section 17A(2) for a valid reservation viz.: (i) the reservation can only be with the approval of the Central Government and must confine to areas not already held under any prospecting licence or mining lease;(ii) the reservation must be made by a notification in the official gazette; and(iii) the notification must specify the boundaries of such areas and the mineral or minerals in respect of which such areas will be reserved. 15. Mr. Parasaran was unable to show us any notification issued by the Government under Section 17A (2) (supra) nor was it possible for him to exalt the States industrial policy extracted above to the status of a statutory reservation within the contemplation of Section 17A. The net result, therefore, is that while the power to reserve an area not already held under any prospecting licence or mining lease is squarely and specifically vested in the State Government, the exercise of that power is not demonstrable in the case at hand. It is common ground that there is no approval of the Central Government nor is there a notification duly published in the official gazette specifying boundaries of the reserved area and mineral or minerals in respect of which such area will be or has been reserved. 16. It is well settled that if the law requires a particular thing to be done in a particular manner, then, in order to be valid the act must be done in the prescribed manner alone [See: Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and ors. (2002) 1 SCC 633 ; Captain Sube Singh and Ors. v. Lt. Governor of Delhi and Ors. (2004) 6 SCC 440 ; State of U.P. v. Singhara Singh AIR 1964 SC 358 ; and Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405 ]. Absence of the Central Governments approval to reservation and a notification as required by Section 17A, therefore, renders the State Governments claim of reservation untenable till such time a valid reservation is made in accordance with law. It is trite that the State Governments general executive power cannot be invoked to make a reservation dehors Section 17A. In Sandur Manganese and Iron Ores Ltd. v. State of Karnataka and Ors. (2010) 13 SCC 1 this Court held that the State Government is denuded of its executive power in the light of Section 2 of the aforementioned Act. To the same effect is the decision of this Court in Bharat Coking Coal Ltd. v. State of Bihar (1990) 4 SCC 557 , where this Court observed that the State is denuded of its executive power in regard to matters covered by the MMDR Act and the Rules. Reference may also be made to the decision of this Court in State of Tamil Nadu v. Hind Stone (1981) 2 SCC 205 where this Court observed: "10. ... The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed ... at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you must prohibit in the present." 17. The upshot of the above discussion then is that while the State Government is the owner of the mineral deposits in the lands which vest in the Government as is the position in the case at hand, the Parliament has by reason of the declaration made in Section 2 of the 1957 Act acquired complete dominion over the legislative field covered by the said legislation. The Act does not denude the State of the ownership of the minerals situate within its territories but there is no manner of doubt that it regulates to the extent set out in the provisions of the Act the development of mines and minerals in the country. It follows that if the State Government proposes to reserve any area for exploitation by the State owned corporation or company, it must resort to making of such reservation in terms of Section 17A with the approval of the Central Government and by a notification specifying boundaries of the area and mineral or minerals in respect of which such areas will be reserved. Inasmuch as the State Government have not so far issued any notification in terms of Section 17A, the Industrial Policy - 2007 of the Kerala State Government does not have the effect of making a valid reservation within the comprehension of Section 17A. The High Court was, therefore, justified in holding that there is no valid reservation as at present no matter the government can make such a reservation if so advised in the manner prescribed by law. In other words, the dismissal of this appeal shall not prevent the State from invoking its right under Section 17(A)(2) of the Act by issuing notification in respect of the mineral deposits in question. There is, in that view, no reason for us to interfere with the judgment and order passed by the High Court. | 0[ds]while the State Government is the owner of the mineral deposits in the lands which vest in the Government as is the position in the case at hand, the Parliament has by reason of the declaration made in Section 2 of the 1957 Act acquired complete dominion over the legislative field covered by the said legislation. The Act does not denude the State of the ownership of the minerals situate within its territories but there is no manner of doubt that it regulates to the extent set out in the provisions of the Act the development of mines and minerals in the country. It follows that if the State Government proposes to reserve any area for exploitation by the State owned corporation or company, it must resort to making of such reservation in terms of Section 17A with the approval of the Central Government and by a notification specifying boundaries of the area and mineral or minerals in respect of which such areas will be reserved. Inasmuch as the State Government have not so far issued any notification in terms of Section 17A, the Industrial Policy - 2007 of the Kerala State Government does not have the effect of making a valid reservation within the comprehension of Section 17A. The High Court was, therefore, justified in holding that there is no valid reservation as at present no matter the government can make such a reservation if so advised in the manner prescribed by law. In other words, the dismissal of this appeal shall not prevent the State from invoking its right under Section 17(A)(2) of the Act by issuing notification in respect of the mineral deposits in question. There is, in that view, no reason for us to interfere with the judgment and order passed by the High Court. | 0 | 4,922 | 324 | ### Instruction:
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royalty, surface rent or dead rent, as the case may be, from time to time at the same rate at which it would have been payable under this Act if such prospecting or mining operations had been undertaken by a private person under prospecting licence or mining lease." 14. There is no gainsaying that the State Government can reserve any area not already held under any prospecting licence or mining lease for undertaking prospecting or mining operations through a Government company or corporation owned or controlled by it, but, in terms of sub-Section(2) of Section 17A (supra) where the Government proposes to do so, it shall by notification in the official gazette specify the boundaries of such area and the mineral or minerals in respect of which such areas will be reserved. Three distinct requirements emerge from Section 17A(2) for a valid reservation viz.: (i) the reservation can only be with the approval of the Central Government and must confine to areas not already held under any prospecting licence or mining lease;(ii) the reservation must be made by a notification in the official gazette; and(iii) the notification must specify the boundaries of such areas and the mineral or minerals in respect of which such areas will be reserved. 15. Mr. Parasaran was unable to show us any notification issued by the Government under Section 17A (2) (supra) nor was it possible for him to exalt the States industrial policy extracted above to the status of a statutory reservation within the contemplation of Section 17A. The net result, therefore, is that while the power to reserve an area not already held under any prospecting licence or mining lease is squarely and specifically vested in the State Government, the exercise of that power is not demonstrable in the case at hand. It is common ground that there is no approval of the Central Government nor is there a notification duly published in the official gazette specifying boundaries of the reserved area and mineral or minerals in respect of which such area will be or has been reserved. 16. It is well settled that if the law requires a particular thing to be done in a particular manner, then, in order to be valid the act must be done in the prescribed manner alone [See: Commissioner of Income Tax, Mumbai v. Anjum M.H. Ghaswala and ors. (2002) 1 SCC 633 ; Captain Sube Singh and Ors. v. Lt. Governor of Delhi and Ors. (2004) 6 SCC 440 ; State of U.P. v. Singhara Singh AIR 1964 SC 358 ; and Mohinder Singh Gill v. Chief Election Commissioner (1978) 1 SCC 405 ]. Absence of the Central Governments approval to reservation and a notification as required by Section 17A, therefore, renders the State Governments claim of reservation untenable till such time a valid reservation is made in accordance with law. It is trite that the State Governments general executive power cannot be invoked to make a reservation dehors Section 17A. In Sandur Manganese and Iron Ores Ltd. v. State of Karnataka and Ors. (2010) 13 SCC 1 this Court held that the State Government is denuded of its executive power in the light of Section 2 of the aforementioned Act. To the same effect is the decision of this Court in Bharat Coking Coal Ltd. v. State of Bihar (1990) 4 SCC 557 , where this Court observed that the State is denuded of its executive power in regard to matters covered by the MMDR Act and the Rules. Reference may also be made to the decision of this Court in State of Tamil Nadu v. Hind Stone (1981) 2 SCC 205 where this Court observed: "10. ... The statute with which we are concerned, the Mines and Minerals (Development and Regulation) Act, is aimed ... at the conservation and the prudent and discriminating exploitation of minerals. Surely, in the case of a scarce mineral, to permit exploitation by the State or its agency and to prohibit exploitation by private agencies is the most effective method of conservation and prudent exploitation. If you want to conserve for the future, you must prohibit in the present." 17. The upshot of the above discussion then is that while the State Government is the owner of the mineral deposits in the lands which vest in the Government as is the position in the case at hand, the Parliament has by reason of the declaration made in Section 2 of the 1957 Act acquired complete dominion over the legislative field covered by the said legislation. The Act does not denude the State of the ownership of the minerals situate within its territories but there is no manner of doubt that it regulates to the extent set out in the provisions of the Act the development of mines and minerals in the country. It follows that if the State Government proposes to reserve any area for exploitation by the State owned corporation or company, it must resort to making of such reservation in terms of Section 17A with the approval of the Central Government and by a notification specifying boundaries of the area and mineral or minerals in respect of which such areas will be reserved. Inasmuch as the State Government have not so far issued any notification in terms of Section 17A, the Industrial Policy - 2007 of the Kerala State Government does not have the effect of making a valid reservation within the comprehension of Section 17A. The High Court was, therefore, justified in holding that there is no valid reservation as at present no matter the government can make such a reservation if so advised in the manner prescribed by law. In other words, the dismissal of this appeal shall not prevent the State from invoking its right under Section 17(A)(2) of the Act by issuing notification in respect of the mineral deposits in question. There is, in that view, no reason for us to interfere with the judgment and order passed by the High Court.
### Response:
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### Explanation:
while the State Government is the owner of the mineral deposits in the lands which vest in the Government as is the position in the case at hand, the Parliament has by reason of the declaration made in Section 2 of the 1957 Act acquired complete dominion over the legislative field covered by the said legislation. The Act does not denude the State of the ownership of the minerals situate within its territories but there is no manner of doubt that it regulates to the extent set out in the provisions of the Act the development of mines and minerals in the country. It follows that if the State Government proposes to reserve any area for exploitation by the State owned corporation or company, it must resort to making of such reservation in terms of Section 17A with the approval of the Central Government and by a notification specifying boundaries of the area and mineral or minerals in respect of which such areas will be reserved. Inasmuch as the State Government have not so far issued any notification in terms of Section 17A, the Industrial Policy - 2007 of the Kerala State Government does not have the effect of making a valid reservation within the comprehension of Section 17A. The High Court was, therefore, justified in holding that there is no valid reservation as at present no matter the government can make such a reservation if so advised in the manner prescribed by law. In other words, the dismissal of this appeal shall not prevent the State from invoking its right under Section 17(A)(2) of the Act by issuing notification in respect of the mineral deposits in question. There is, in that view, no reason for us to interfere with the judgment and order passed by the High Court.
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M/S.Northern Coalfields Ltd Vs. Heavy Engineering Corp.Ltd. | Court entitled to institute the proceedings to save limitation. The High Court has, all the same, rejected the plaint on the ground that permission from COD was not obtained. In doing so the High Court obviously understood the direction of this Court to mean as though absence of such permission was a fatal defect which it was not. The orders of this Court to which we have made a reference earlier unequivocally make it clear that filing of the suit in itself was not barred. What was restrained was further progress in the suit till such time permission from the COD was obtained. In as much as the High Court considered the absence of permission from COD to be a mandatory legal requirement for the institution of the suit it committed a mistake. No such legal requirement could be read into the judgment of this Court nor has any such requirement been pointed out by Mr. Ranjit Kumar, learned Solicitor General appearing before us. 24. The question then is whether the requirement of the clearance of COD could be insisted upon even at this stage. Our answer is in the negative. We say so because COD stands abrogated/dissolved and the orders directing constitution of such a Committee reversed. Since there is no COD at present there is no question of either obtaining or insisting upon any clearance from the same. The upshot of the above discussion is that the orders passed by the High Court rejecting the plaint on the ground that the same was not preceded or accompanied by permission from COD is unsustainable, are hence, liable to be set aside. 25. That brings us to the question whether we ought to remand the matter back to the Civil Court for adjudication and if that were not a desirable course of action whether adjudication of the matters in dispute by way of arbitration would be a better option. It was argued by Mr. Ranjit Kumar, learned Solicitor General that the respondent has an award in its favour made in terms of the Permanent Machinery of Arbitration and that so long as that award stands there is no need for any fresh or further arbitration on the claims already adjudicated upon under the said mechanism. The argument appears to be attractive at first blush but does not survive a closer scrutiny. That is so because an arbitral award under the Permanent Machinery of Arbitration may give quietus to the controversy if the same is accepted by the parties to the dispute. In cases, however, a party does not accept the award, as is the position in the case at hand, the arbitral award may not put an end to the controversy. Such an award being outside the framework of the law governing arbitration will not be legally enforceable in a court of law. In fairness to Mr. Ranjit Kumar, learned Additional Solicitor General, we must mention that he did not dispute that the award made by the arbitrator under the Permanent Machinery of Arbitration was outside the statute regulating arbitration in this country and was not, therefore, executable in law. What he argued was that since both sides to the disputes were government corporations the Government could adopt administrative mechanism for recovering the amount held payable to the respondent. That does not, in our opinion, answer the question. Remedies which are available to the Government on the administrative side cannot substitute remedies that are available to a losing party according to the law of the land. The appellant has lost before the arbitrators in terms of the Permanent Machinery of Arbitration and is stoutly disputing its liability on several grounds. The dispute regarding liability of the appellant under the contract, therefore, continues to loom large so long as it is not resolved finally and effectually in accordance with law. No such effective adjudication recognized by law has so far taken place. That being so, the right of the appellant to demand such an adjudication cannot be denied simply because it happens to be a Government owned company for even when the appellant is a government company, it has its legal character as an entity separate from the Government. Just because it had resorted to the permanent procedure or taken part in the proceedings there can be no estoppel against its seeking redress in accordance with law. That is precisely what it did when it filed a suit for declaration that the award was bad for a variety of reasons and also that the contract stood annulled on account of the breach committed by the respondents. 26. Having said that, Mr. Patwalia made a candid statement after instructions that the appellant would have no difficulty in having all the claims and counter-claims of the appellants and the respondent-corporation referred to adjudication in accordance with law to a sole arbitrator to be nominated by this Court. To facilitate such a reference Mr. Patwalia has on instructions sought deletion of respondent No.2 from the array of respondents which prayer we see no reason to decline especially because the dispute is between the two corporations which alone ought to be referred to adjudication in accordance with law. Respondent No.2 shall accordingly stand deleted from the array of parties.27. Mr. Ranjit Kumar was, however, somewhat diffident in making a concession that the claim could be referred for a fresh round of arbitration in accordance with provisions of Arbitration and Conciliation Act, 1996. That diffidence does not prevent us from making a suitable order of reference to a sole arbitrator for adjudication of all outstanding disputes between the two corporations especially because the alternative to such arbitration is a long drawn expensive and cumbersome trial of the suit filed by the appellant before a civil court and the difficulties that beset the execution of an award made under a non-statutory administrative mechanism. Both these courses are unattractive with no prospects of an early fruition even after the parties have fought each other for nearly twenty years. | 1[ds]Remedies which are available to the Government on the administrative side cannot substitute remedies that are available to a losing party according to the law of the land. The appellant has lost before the arbitrators in terms of the Permanent Machinery of Arbitration and is stoutly disputing its liability on several grounds. The dispute regarding liability of the appellant under the contract, therefore, continues to loom large so long as it is not resolved finally and effectually in accordance with law. No such effective adjudication recognized by law has so far taken place. That being so, the right of the appellant to demand such an adjudication cannot be denied simply because it happens to be a Government owned company for even when the appellant is a government company, it has its legal character as an entity separate from the Government. Just because it had resorted to the permanent procedure or taken part in the proceedings there can be no estoppel against its seeking redress in accordance with law. That is precisely what it did when it filed a suit for declaration that the award was bad for a variety of reasons and also that the contract stood annulled on account of the breach committed by thediffidence does not prevent us from making a suitable order of reference to a sole arbitrator for adjudication of all outstanding disputes between the two corporations especially because the alternative to such arbitration is a long drawn expensive and cumbersome trial of the suit filed by the appellant before a civil court and the difficulties that beset the execution of an award made under a non-statutory administrative mechanism. Both these courses are unattractive with no prospects of an early fruition even after the parties have fought each other for nearly twenty years. | 1 | 7,168 | 315 | ### Instruction:
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Court entitled to institute the proceedings to save limitation. The High Court has, all the same, rejected the plaint on the ground that permission from COD was not obtained. In doing so the High Court obviously understood the direction of this Court to mean as though absence of such permission was a fatal defect which it was not. The orders of this Court to which we have made a reference earlier unequivocally make it clear that filing of the suit in itself was not barred. What was restrained was further progress in the suit till such time permission from the COD was obtained. In as much as the High Court considered the absence of permission from COD to be a mandatory legal requirement for the institution of the suit it committed a mistake. No such legal requirement could be read into the judgment of this Court nor has any such requirement been pointed out by Mr. Ranjit Kumar, learned Solicitor General appearing before us. 24. The question then is whether the requirement of the clearance of COD could be insisted upon even at this stage. Our answer is in the negative. We say so because COD stands abrogated/dissolved and the orders directing constitution of such a Committee reversed. Since there is no COD at present there is no question of either obtaining or insisting upon any clearance from the same. The upshot of the above discussion is that the orders passed by the High Court rejecting the plaint on the ground that the same was not preceded or accompanied by permission from COD is unsustainable, are hence, liable to be set aside. 25. That brings us to the question whether we ought to remand the matter back to the Civil Court for adjudication and if that were not a desirable course of action whether adjudication of the matters in dispute by way of arbitration would be a better option. It was argued by Mr. Ranjit Kumar, learned Solicitor General that the respondent has an award in its favour made in terms of the Permanent Machinery of Arbitration and that so long as that award stands there is no need for any fresh or further arbitration on the claims already adjudicated upon under the said mechanism. The argument appears to be attractive at first blush but does not survive a closer scrutiny. That is so because an arbitral award under the Permanent Machinery of Arbitration may give quietus to the controversy if the same is accepted by the parties to the dispute. In cases, however, a party does not accept the award, as is the position in the case at hand, the arbitral award may not put an end to the controversy. Such an award being outside the framework of the law governing arbitration will not be legally enforceable in a court of law. In fairness to Mr. Ranjit Kumar, learned Additional Solicitor General, we must mention that he did not dispute that the award made by the arbitrator under the Permanent Machinery of Arbitration was outside the statute regulating arbitration in this country and was not, therefore, executable in law. What he argued was that since both sides to the disputes were government corporations the Government could adopt administrative mechanism for recovering the amount held payable to the respondent. That does not, in our opinion, answer the question. Remedies which are available to the Government on the administrative side cannot substitute remedies that are available to a losing party according to the law of the land. The appellant has lost before the arbitrators in terms of the Permanent Machinery of Arbitration and is stoutly disputing its liability on several grounds. The dispute regarding liability of the appellant under the contract, therefore, continues to loom large so long as it is not resolved finally and effectually in accordance with law. No such effective adjudication recognized by law has so far taken place. That being so, the right of the appellant to demand such an adjudication cannot be denied simply because it happens to be a Government owned company for even when the appellant is a government company, it has its legal character as an entity separate from the Government. Just because it had resorted to the permanent procedure or taken part in the proceedings there can be no estoppel against its seeking redress in accordance with law. That is precisely what it did when it filed a suit for declaration that the award was bad for a variety of reasons and also that the contract stood annulled on account of the breach committed by the respondents. 26. Having said that, Mr. Patwalia made a candid statement after instructions that the appellant would have no difficulty in having all the claims and counter-claims of the appellants and the respondent-corporation referred to adjudication in accordance with law to a sole arbitrator to be nominated by this Court. To facilitate such a reference Mr. Patwalia has on instructions sought deletion of respondent No.2 from the array of respondents which prayer we see no reason to decline especially because the dispute is between the two corporations which alone ought to be referred to adjudication in accordance with law. Respondent No.2 shall accordingly stand deleted from the array of parties.27. Mr. Ranjit Kumar was, however, somewhat diffident in making a concession that the claim could be referred for a fresh round of arbitration in accordance with provisions of Arbitration and Conciliation Act, 1996. That diffidence does not prevent us from making a suitable order of reference to a sole arbitrator for adjudication of all outstanding disputes between the two corporations especially because the alternative to such arbitration is a long drawn expensive and cumbersome trial of the suit filed by the appellant before a civil court and the difficulties that beset the execution of an award made under a non-statutory administrative mechanism. Both these courses are unattractive with no prospects of an early fruition even after the parties have fought each other for nearly twenty years.
### Response:
1
### Explanation:
Remedies which are available to the Government on the administrative side cannot substitute remedies that are available to a losing party according to the law of the land. The appellant has lost before the arbitrators in terms of the Permanent Machinery of Arbitration and is stoutly disputing its liability on several grounds. The dispute regarding liability of the appellant under the contract, therefore, continues to loom large so long as it is not resolved finally and effectually in accordance with law. No such effective adjudication recognized by law has so far taken place. That being so, the right of the appellant to demand such an adjudication cannot be denied simply because it happens to be a Government owned company for even when the appellant is a government company, it has its legal character as an entity separate from the Government. Just because it had resorted to the permanent procedure or taken part in the proceedings there can be no estoppel against its seeking redress in accordance with law. That is precisely what it did when it filed a suit for declaration that the award was bad for a variety of reasons and also that the contract stood annulled on account of the breach committed by thediffidence does not prevent us from making a suitable order of reference to a sole arbitrator for adjudication of all outstanding disputes between the two corporations especially because the alternative to such arbitration is a long drawn expensive and cumbersome trial of the suit filed by the appellant before a civil court and the difficulties that beset the execution of an award made under a non-statutory administrative mechanism. Both these courses are unattractive with no prospects of an early fruition even after the parties have fought each other for nearly twenty years.
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THE STATE OF BIHAR & ORS Vs. ARBIND JEE | field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted. 11. To challenge the conferment of retrospective seniority, the learned counsel for the appellant has cited Shitla Prasad Shukla vs. State of UP and Ors. (1986)(Supp.) SCC 185 where this court speaking through Justice M. P. Thakkar rightly held that: 10. ……The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the Court will not overturn the determination unless it would be unfair not to do so… 12. The principles enunciated in Shitla Prasad Shukla (supra) are applicable to the case at hand. The compassionate appointment of the respondent is not being questioned here but importantly he is claiming seniority benefit for 10 years without working for a single day during that period. In other words, precedence is being claimed over other regular employees who have entered service between 1985 to 1996. In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous. Such view was expressed in many cases and most recently in Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan and Ors. (2019) 16 SCC 28. Justice Dr. D. Y. Chandrachud speaking for the Court opined as under:- 41. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers Association v State of Maharashtra (1990) 2 SCC 715. The principle was reiterated by this Court in State of Bihar v Akhouri Sachindra Nath 1991 Supp. (1) SCC 334 and State of Uttaranchal v Dinesh Kumar Sharma. (2007) 1 SCC 683. 13. The learned counsel for respondent relies on C. Jayachandran vs. State of Kerala (2020) 5 SCC 230 , to argue for retrospective seniority. The bench speaking through Justice Hemant Gupta in the context of a diligent litigant observed that: 41 ……..The appellant has submitted the representation on 11-4-2012 i.e. within 1 year and 2 months of his joining and submitted reminder on 18-9-2014. It is the High Court which has taken time to take a final call on the representation of the appellant and other direct recruits. The appellant was prosecuting his grievances in a legitimate manner of redressal of grievances. Therefore, it cannot be said that the claim of the appellant was delayed as he has not claimed the date of appointment as 30-3-2009. The appellant having been factually appointed vide communication dated 22-12-2010, he could not assume or claim to assume charge prior to such offer of appointment. The appellant has to be granted notional seniority from the date the other candidates were appointed in pursuance of the same select list prepared on the basis of the common appointment process. As can be seen from the above extracted passage, the benefit of notional seniority was claimed within 1 year from date of actual appointment. This was also a case where the contesting parties were recruited through a common competitive process. But the present is not a case of recruitment by selection and is a compassionate appointment made on this courts order. The courts direction to the State was to appoint within 1 month without specifying that the appointment should have a retrospective effect. The respondent never raised any claim for relating his appointment to an earlier date from this Court. Post appointment, he never raised any grievance within reasonable time, for fixing his date of appointment as 20.11.1985. Six years later, only on 10.9.2002, he made a representation and the same was rejected with the observation that on 1.8.1985, the respondent was yet to enter service. Proceeding with these facts, it is clearly discernible that the respondent has slept over his rights, and never earlier pointedly addressed his present claim either to the Supreme Court (in the earlier round) or to the State, soon after his appointment. Moreover, his was a compassionate appointment without any element of competitive recruitment where the similarly recruited has stolen a march over him. Therefore, the ratio in C. Jayachandran (supra) will be of no assistance to the respondent as that case is distinguishable on facts. 14. The records here reflects that the State have faithfully implemented the direction issued by this Court and appointed the respondent. Moreover, the action of the authorities in determination of the respondents seniority from the date of entering service is found to be consistent with the applicable laws. There could be individual cases where a bunch of applicants are recruited through a common competitive process but for one reason or another, one of them is left out while others get appointed. When the denial of analogous appointment is founded to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual. However, the present is not a case of that category. | 1[ds]9. In the previous round before this Court, the respondent was concerned about securing appointment as Adhinayak Lipik and direction was issued to appoint him, specifying the time limit of one month. But there was no direction for allowing retrospective benefit to the appointee. In such circumstances, the High Court in our view should not have travelled beyond the order passed by this Court to hold in favour of the respondent that his seniority should be counted from 5.12.1985 although he entered service a decade later only on 10.2.1996. Moreover, the respondent even after entering service did not immediately claim the benefit of retrospective appointment, and only on 10.9.2002 he applied to the Commandant to claim seniority from 5.12.1985 which claim was however rejected by the Authority on 20.11.2002.10. As earlier noted, the respondent entered service only on 10.2.1996 and yet under the impugned judgment, the High Court directed counting of his seniority from 20.11.1985 when he was not borne in service. The jurisprudence in the field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted.12. The principles enunciated in Shitla Prasad Shukla (supra) are applicable to the case at hand. The compassionate appointment of the respondent is not being questioned here but importantly he is claiming seniority benefit for 10 years without working for a single day during that period. In other words, precedence is being claimed over other regular employees who have entered service between 1985 to 1996. In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous. Such view was expressed in many cases and most recently in Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan and Ors. (2019) 16 SCC 28. Justice Dr. D. Y. Chandrachud speaking for the Court opined as under:-41. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers Association v State of Maharashtra (1990) 2 SCC 715. The principle was reiterated by this Court in State of Bihar v Akhouri Sachindra Nath 1991 Supp. (1) SCC 334 and State of Uttaranchal v Dinesh Kumar Sharma. (2007) 1 SCC 683. As can be seen from the above extracted passage, the benefit of notional seniority was claimed within 1 year from date of actual appointment. This was also a case where the contesting parties were recruited through a common competitive process. But the present is not a case of recruitment by selection and is a compassionate appointment made on this courts order. The courts direction to the State was to appoint within 1 month without specifying that the appointment should have a retrospective effect. The respondent never raised any claim for relating his appointment to an earlier date from this Court. Post appointment, he never raised any grievance within reasonable time, for fixing his date of appointment as 20.11.1985. Six years later, only on 10.9.2002, he made a representation and the same was rejected with the observation that on 1.8.1985, the respondent was yet to enter service. Proceeding with these facts, it is clearly discernible that the respondent has slept over his rights, and never earlier pointedly addressed his present claim either to the Supreme Court (in the earlier round) or to the State, soon after his appointment. Moreover, his was a compassionate appointment without any element of competitive recruitment where the similarly recruited has stolen a march over him. Therefore, the ratio in C. Jayachandran (supra) will be of no assistance to the respondent as that case is distinguishable on facts.14. The records here reflects that the State have faithfully implemented the direction issued by this Court and appointed the respondent. Moreover, the action of the authorities in determination of the respondents seniority from the date of entering service is found to be consistent with the applicable laws. There could be individual cases where a bunch of applicants are recruited through a common competitive process but for one reason or another, one of them is left out while others get appointed. When the denial of analogous appointment is founded to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual. However, the present is not a case of that category. | 1 | 2,000 | 921 | ### 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:
field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted. 11. To challenge the conferment of retrospective seniority, the learned counsel for the appellant has cited Shitla Prasad Shukla vs. State of UP and Ors. (1986)(Supp.) SCC 185 where this court speaking through Justice M. P. Thakkar rightly held that: 10. ……The late comers to the regular stream cannot steal a march over the early arrivals in the regular queue. On principle the appellant cannot therefore succeed. What is more in matters of seniority the Court does not exercise jurisdiction akin to appellate jurisdiction against the determination by the competent authority, so long as the competent authority has acted bona fide and acted on principles of fairness and fair play. In a matter where there is no rule or regulation governing the situation or where there is one, but is not violated, the Court will not overturn the determination unless it would be unfair not to do so… 12. The principles enunciated in Shitla Prasad Shukla (supra) are applicable to the case at hand. The compassionate appointment of the respondent is not being questioned here but importantly he is claiming seniority benefit for 10 years without working for a single day during that period. In other words, precedence is being claimed over other regular employees who have entered service between 1985 to 1996. In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous. Such view was expressed in many cases and most recently in Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan and Ors. (2019) 16 SCC 28. Justice Dr. D. Y. Chandrachud speaking for the Court opined as under:- 41. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers Association v State of Maharashtra (1990) 2 SCC 715. The principle was reiterated by this Court in State of Bihar v Akhouri Sachindra Nath 1991 Supp. (1) SCC 334 and State of Uttaranchal v Dinesh Kumar Sharma. (2007) 1 SCC 683. 13. The learned counsel for respondent relies on C. Jayachandran vs. State of Kerala (2020) 5 SCC 230 , to argue for retrospective seniority. The bench speaking through Justice Hemant Gupta in the context of a diligent litigant observed that: 41 ……..The appellant has submitted the representation on 11-4-2012 i.e. within 1 year and 2 months of his joining and submitted reminder on 18-9-2014. It is the High Court which has taken time to take a final call on the representation of the appellant and other direct recruits. The appellant was prosecuting his grievances in a legitimate manner of redressal of grievances. Therefore, it cannot be said that the claim of the appellant was delayed as he has not claimed the date of appointment as 30-3-2009. The appellant having been factually appointed vide communication dated 22-12-2010, he could not assume or claim to assume charge prior to such offer of appointment. The appellant has to be granted notional seniority from the date the other candidates were appointed in pursuance of the same select list prepared on the basis of the common appointment process. As can be seen from the above extracted passage, the benefit of notional seniority was claimed within 1 year from date of actual appointment. This was also a case where the contesting parties were recruited through a common competitive process. But the present is not a case of recruitment by selection and is a compassionate appointment made on this courts order. The courts direction to the State was to appoint within 1 month without specifying that the appointment should have a retrospective effect. The respondent never raised any claim for relating his appointment to an earlier date from this Court. Post appointment, he never raised any grievance within reasonable time, for fixing his date of appointment as 20.11.1985. Six years later, only on 10.9.2002, he made a representation and the same was rejected with the observation that on 1.8.1985, the respondent was yet to enter service. Proceeding with these facts, it is clearly discernible that the respondent has slept over his rights, and never earlier pointedly addressed his present claim either to the Supreme Court (in the earlier round) or to the State, soon after his appointment. Moreover, his was a compassionate appointment without any element of competitive recruitment where the similarly recruited has stolen a march over him. Therefore, the ratio in C. Jayachandran (supra) will be of no assistance to the respondent as that case is distinguishable on facts. 14. The records here reflects that the State have faithfully implemented the direction issued by this Court and appointed the respondent. Moreover, the action of the authorities in determination of the respondents seniority from the date of entering service is found to be consistent with the applicable laws. There could be individual cases where a bunch of applicants are recruited through a common competitive process but for one reason or another, one of them is left out while others get appointed. When the denial of analogous appointment is founded to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual. However, the present is not a case of that category.
### Response:
1
### Explanation:
9. In the previous round before this Court, the respondent was concerned about securing appointment as Adhinayak Lipik and direction was issued to appoint him, specifying the time limit of one month. But there was no direction for allowing retrospective benefit to the appointee. In such circumstances, the High Court in our view should not have travelled beyond the order passed by this Court to hold in favour of the respondent that his seniority should be counted from 5.12.1985 although he entered service a decade later only on 10.2.1996. Moreover, the respondent even after entering service did not immediately claim the benefit of retrospective appointment, and only on 10.9.2002 he applied to the Commandant to claim seniority from 5.12.1985 which claim was however rejected by the Authority on 20.11.2002.10. As earlier noted, the respondent entered service only on 10.2.1996 and yet under the impugned judgment, the High Court directed counting of his seniority from 20.11.1985 when he was not borne in service. The jurisprudence in the field of service law would advise us that retrospective seniority cannot be claimed from a date when an employee is not even borne in service. It is also necessary to bear in mind that retrospective seniority unless directed by court or expressly provided by the applicable Rules, should not be allowed, as in so doing, others who had earlier entered service, will be impacted.12. The principles enunciated in Shitla Prasad Shukla (supra) are applicable to the case at hand. The compassionate appointment of the respondent is not being questioned here but importantly he is claiming seniority benefit for 10 years without working for a single day during that period. In other words, precedence is being claimed over other regular employees who have entered service between 1985 to 1996. In this situation, the seniority balance cannot be tilted against those who entered service much before the respondent. Seniority benefit can accrue only after a person joins service and to say that benefits can be earned retrospectively would be erroneous. Such view was expressed in many cases and most recently in Ganga Vishan Gujrati And Ors. Vs. State of Rajasthan and Ors. (2019) 16 SCC 28. Justice Dr. D. Y. Chandrachud speaking for the Court opined as under:-41. A consistent line of precedent of this Court follows the principle that retrospective seniority cannot be granted to an employee from a date when the employee was not borne on a cadre. Seniority amongst members of the same grade has to be counted from the date of initial entry into the grade. This principle emerges from the decision of the Constitution Bench of this Court in Direct Recruit Class II Engineering Officers Association v State of Maharashtra (1990) 2 SCC 715. The principle was reiterated by this Court in State of Bihar v Akhouri Sachindra Nath 1991 Supp. (1) SCC 334 and State of Uttaranchal v Dinesh Kumar Sharma. (2007) 1 SCC 683. As can be seen from the above extracted passage, the benefit of notional seniority was claimed within 1 year from date of actual appointment. This was also a case where the contesting parties were recruited through a common competitive process. But the present is not a case of recruitment by selection and is a compassionate appointment made on this courts order. The courts direction to the State was to appoint within 1 month without specifying that the appointment should have a retrospective effect. The respondent never raised any claim for relating his appointment to an earlier date from this Court. Post appointment, he never raised any grievance within reasonable time, for fixing his date of appointment as 20.11.1985. Six years later, only on 10.9.2002, he made a representation and the same was rejected with the observation that on 1.8.1985, the respondent was yet to enter service. Proceeding with these facts, it is clearly discernible that the respondent has slept over his rights, and never earlier pointedly addressed his present claim either to the Supreme Court (in the earlier round) or to the State, soon after his appointment. Moreover, his was a compassionate appointment without any element of competitive recruitment where the similarly recruited has stolen a march over him. Therefore, the ratio in C. Jayachandran (supra) will be of no assistance to the respondent as that case is distinguishable on facts.14. The records here reflects that the State have faithfully implemented the direction issued by this Court and appointed the respondent. Moreover, the action of the authorities in determination of the respondents seniority from the date of entering service is found to be consistent with the applicable laws. There could be individual cases where a bunch of applicants are recruited through a common competitive process but for one reason or another, one of them is left out while others get appointed. When the denial of analogous appointment is founded to be arbitrary and legally incorrect, the benefit of notional seniority may be conferred on the deprived individual. However, the present is not a case of that category.
|
Utkal Contractors & Joinery Private Limited &Ors. Etc Vs. State Of Orissa & Ors | deals with sale of forest produce by the State Government is Section 12 and that again is confined to the sale of specified forest produce purchased by the State Government, its officers or agents. Thus, Section 4, Section 5(1)(b), Section 5(3), Section 7, Section 8, Section 9, Section 10 and Section 12, all deal with the forest produce grown in private holdings and all those provisions except Sections 10 and 12 deal with purchase of forest produce by the government, its officers or agents. Section 10, as we have already seen, deals with registration of growers of forest produce and Section 12 with sale of forest produce purchased by the government. Thus none of these provisions deals with forest produce grown in government lands nor is there any other provision in the Act which expressly deals with forest produce grown in government lands. The scheme of the Act is, therefore, fully in tune with the object set out in the Statement of Objects and Reasons and in the preamble, namely, that of creating a monopoly in forest produce by making the government the exclusive purchaser of forest produce grown in private holdings. It was argued by the learned Additional Solicitor General that Section 5(1)(a) was totally out of tune with forest produce grown rest of the provisions and, while the rest of the provision dealt with forest produce grown in private holdings, the very wide language of Section 5(1)(a) made it applicable to all forest produce whether grown in private holdings or government forests. We do not think that it is permissible for us to construe Section 5(1)(a) in the very wide terms in which we are asked to construe it by the learned Additional Solicitor General because of its wide language, as that would merely introduce needless confusion into the scheme of the Act. Having scanned the object and the scheme of the Act, having examined each of the provisions of the Act textually and contextually, we do not think that it is proper for us to construe the words of Section 5(1)(a) in their literal sense; we think that the proper way to construe Section 5(1)(a) is to give a restricted meaning to the wide and general words there used so as to fit into the general scheme of the Act. Section 5(1)(a) and 5(1)(b) are connected by the conjunction and, and having regard to the circumstances leading to the enactment and the policy and design of the Act, we think that the clauses (a) and (b) must be construed in such a way as to reflect each other. We have no doubt that the contracts relating to specified forest produce which stand rescinded are contracts in relation to forest produce grown in private holdings only. If the very object of the Act is to create a monopoly in forest produce in the government so as to enable the government, among other things, to enter into contracts, there was no point in rescinding contracts already validly entered into by the government. Again Section 5(1) does not bar any future Contracts by the government in respect of forest produce; if so, what is the justification for constrain Section 5(1)(a) in such a way as to put and end to contracts already entered into by the government. Viewing Sections 5(1)(a) and 5(1)(b) together and in the light of the preamble and the Statement of Objects and Reasons and against the decor of the remaining provisions of the Act, we have no doubt that Section 5(1) like the rest of the provisions applies to forest produce grown in private holdings and not to forest produce grown on government lands. 16. One of the submissions of the learned Additional Solicitor General was that despite noticing in the Statement of Objects and Reasons that sal seeds were grown in government lands only yet sal seeds were included in the definition of forest produce and this was a clear indication that forest produce grown in government lands was also meant to be dealt with by the Act. We do not think that the mere inclusion of sal seeds in the definition of forest produce can lead to such consequences in the teeth of the several provisions of the Act. Several species of forest produce were included in the definition of forest produce and among them sal seeds were also included so as to eliminate even the remote possibility of the existence of some stray private holdings in which sal seeds may have been grown. 17. In the view that we have taken it is unnecessary for us to consider the further submission that Explanation II to Section 5(1) saves the present contract or that Explanation II is an explanation only to Section 5(1)(a) and not to Section 5(1)(b). We declare that the Act and the notification issued under the Act do not apply to forest produce grown in government forests and that it was not therefore, open to the government to treat the contract dated May 25, 1979 as rescinded. As a result of the attitude of the government in treating the contract as rescinded from the date of the notification the appellants were not able to collect and purchased the sal seeds from the government forests which they have taken on lease for a period of about four years. The question arises whether any further relief in addition to declaration may be granted by us. It was suggested on behalf of the appellants that their lease should be extended by another period of four years. We do not think that it is permissible for us to extend the lease for a further period of four years in that fashion. We can only leave it open to the parties to work out their rights in the light of the declaration granted by us. We find that various interim orders were made from time to time. The rights of the parties will naturally have to be worked out after taking into account the interim orders. | 1[ds]15. At the outset, we notice that grower of forest produce is defined to include the State Government but on an examination of the remaining provisions of the Act we find that the expression grower of forest produce is not found in any other provision except Section 5(2)(a) and Section 10. Section 5(2)(a) provides for the transport of produce by the grower of forest produce from a place within one unit to another place within the unit. Section 10 requires every grower of forest produce to get himself registered in prescribed manner. Obviously neither Section 5(2)(a) nor Section 10 has any application to the government. Therefore, the circumstance that grower of forest produce is defined so as to include the government appears to us to be of no consequence in determining whether the Act is applicable to forest produce grown on government lands. On the other hand, from the extracts and summary of the other provisions of the Act that we have given earlier, we find that section after section deals with purchase of forest produce which, in the circumstances, can only refer to purchase of forest produce grown on private holdings since there can be no question of or providing for the purchase by the government of forest produce grown on government lands. Section 4 enables the appointment by the State Government of agents for the purchase of and trade in specified forest produce. Section 5(1)(b) refers to purchase or transport of specified forest produce by the State Government, its officers and agents. Section 5(3) refers to sale of forest produce to the government, its officers or agents. Section 7 refers to the fixation of price at which the government, its officers or agents may preaches forest produce. Section 8 enables the opening of depots for the purchase of forest produce by the government, its officers and agents. Section 9 deals with the obligation of the State Government, its agents and officers to purchase specified forest produce. All these provisions, we see, deal with purchase of forest produce by the State Government. As stated earlier, this can only be of forest produce grown in private holdings and not in government forests. The only provision which deals with sale of forest produce by the State Government is Section 12 and that again is confined to the sale of specified forest produce purchased by the State Government, its officers or agents. Thus, Section 4, Section 5(1)(b), Section 5(3), Section 7, Section 8, Section 9, Section 10 and Section 12, all deal with the forest produce grown in private holdings and all those provisions except Sections 10 and 12 deal with purchase of forest produce by the government, its officers or agents. Section 10, as we have already seen, deals with registration of growers of forest produce and Section 12 with sale of forest produce purchased by the government. Thus none of these provisions deals with forest produce grown in government lands nor is there any other provision in the Act which expressly deals with forest produce grown in government lands. The scheme of the Act is, therefore, fully in tune with the object set out in the Statement of Objects and Reasons and in the preamble, namely, that of creating a monopoly in forest produce by making the government the exclusive purchaser of forest produce grown in private holdings. It was argued by the learned Additional Solicitor General that Section 5(1)(a) was totally out of tune with forest produce grown rest of the provisions and, while the rest of the provision dealt with forest produce grown in private holdings, the very wide language of Section 5(1)(a) made it applicable to all forest produce whether grown in private holdings or government forests. We do not think that it is permissible for us to construe Section 5(1)(a) in the very wide terms in which we are asked to construe it by the learned Additional Solicitor General because of its wide language, as that would merely introduce needless confusion into the scheme of the Act. Having scanned the object and the scheme of the Act, having examined each of the provisions of the Act textually and contextually, we do not think that it is proper for us to construe the words of Section 5(1)(a) in their literal sense; we think that the proper way to construe Section 5(1)(a) is to give a restricted meaning to the wide and general words there used so as to fit into the general scheme of the Act. Section 5(1)(a) and 5(1)(b) are connected by the conjunction and, and having regard to the circumstances leading to the enactment and the policy and design of the Act, we think that the clauses (a) and (b) must be construed in such a way as to reflect each other. We have no doubt that the contracts relating to specified forest produce which stand rescinded are contracts in relation to forest produce grown in private holdings only. If the very object of the Act is to create a monopoly in forest produce in the government so as to enable the government, among other things, to enter into contracts, there was no point in rescinding contracts already validly entered into by the government. Again Section 5(1) does not bar any future Contracts by the government in respect of forest produce; if so, what is the justification for constrain Section 5(1)(a) in such a way as to put and end to contracts already entered into by the government. Viewing Sections 5(1)(a) and 5(1)(b) together and in the light of the preamble and the Statement of Objects and Reasons and against the decor of the remaining provisions of the Act, we have no doubt that Section 5(1) like the rest of the provisions applies to forest produce grown in private holdings and not to forest produce grown on governmentIn the view that we have taken it is unnecessary for us to consider the further submission that Explanation II to Section 5(1) saves the present contract or that Explanation II is an explanation only to Section 5(1)(a) and not to Section 5(1)(b). We declare that the Act and the notification issued under the Act do not apply to forest produce grown in government forests and that it was not therefore, open to the government to treat the contract dated May 25, 1979 as rescinded. As a result of the attitude of the government in treating the contract as rescinded from the date of the notification the appellants were not able to collect and purchased the sal seeds from the government forests which they have taken on lease for a period of about four years. The question arises whether any further relief in addition to declaration may be granted by us. It was suggested on behalf of the appellants that their lease should be extended by another period of four years. We do not think that it is permissible for us to extend the lease for a further period of four years in that fashion. We can only leave it open to the parties to work out their rights in the light of the declaration granted by us. We find that various interim orders were made from time to time. The rights of the parties will naturally have to be worked out after taking into account the interim orders | 1 | 6,066 | 1,427 | ### 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:
deals with sale of forest produce by the State Government is Section 12 and that again is confined to the sale of specified forest produce purchased by the State Government, its officers or agents. Thus, Section 4, Section 5(1)(b), Section 5(3), Section 7, Section 8, Section 9, Section 10 and Section 12, all deal with the forest produce grown in private holdings and all those provisions except Sections 10 and 12 deal with purchase of forest produce by the government, its officers or agents. Section 10, as we have already seen, deals with registration of growers of forest produce and Section 12 with sale of forest produce purchased by the government. Thus none of these provisions deals with forest produce grown in government lands nor is there any other provision in the Act which expressly deals with forest produce grown in government lands. The scheme of the Act is, therefore, fully in tune with the object set out in the Statement of Objects and Reasons and in the preamble, namely, that of creating a monopoly in forest produce by making the government the exclusive purchaser of forest produce grown in private holdings. It was argued by the learned Additional Solicitor General that Section 5(1)(a) was totally out of tune with forest produce grown rest of the provisions and, while the rest of the provision dealt with forest produce grown in private holdings, the very wide language of Section 5(1)(a) made it applicable to all forest produce whether grown in private holdings or government forests. We do not think that it is permissible for us to construe Section 5(1)(a) in the very wide terms in which we are asked to construe it by the learned Additional Solicitor General because of its wide language, as that would merely introduce needless confusion into the scheme of the Act. Having scanned the object and the scheme of the Act, having examined each of the provisions of the Act textually and contextually, we do not think that it is proper for us to construe the words of Section 5(1)(a) in their literal sense; we think that the proper way to construe Section 5(1)(a) is to give a restricted meaning to the wide and general words there used so as to fit into the general scheme of the Act. Section 5(1)(a) and 5(1)(b) are connected by the conjunction and, and having regard to the circumstances leading to the enactment and the policy and design of the Act, we think that the clauses (a) and (b) must be construed in such a way as to reflect each other. We have no doubt that the contracts relating to specified forest produce which stand rescinded are contracts in relation to forest produce grown in private holdings only. If the very object of the Act is to create a monopoly in forest produce in the government so as to enable the government, among other things, to enter into contracts, there was no point in rescinding contracts already validly entered into by the government. Again Section 5(1) does not bar any future Contracts by the government in respect of forest produce; if so, what is the justification for constrain Section 5(1)(a) in such a way as to put and end to contracts already entered into by the government. Viewing Sections 5(1)(a) and 5(1)(b) together and in the light of the preamble and the Statement of Objects and Reasons and against the decor of the remaining provisions of the Act, we have no doubt that Section 5(1) like the rest of the provisions applies to forest produce grown in private holdings and not to forest produce grown on government lands. 16. One of the submissions of the learned Additional Solicitor General was that despite noticing in the Statement of Objects and Reasons that sal seeds were grown in government lands only yet sal seeds were included in the definition of forest produce and this was a clear indication that forest produce grown in government lands was also meant to be dealt with by the Act. We do not think that the mere inclusion of sal seeds in the definition of forest produce can lead to such consequences in the teeth of the several provisions of the Act. Several species of forest produce were included in the definition of forest produce and among them sal seeds were also included so as to eliminate even the remote possibility of the existence of some stray private holdings in which sal seeds may have been grown. 17. In the view that we have taken it is unnecessary for us to consider the further submission that Explanation II to Section 5(1) saves the present contract or that Explanation II is an explanation only to Section 5(1)(a) and not to Section 5(1)(b). We declare that the Act and the notification issued under the Act do not apply to forest produce grown in government forests and that it was not therefore, open to the government to treat the contract dated May 25, 1979 as rescinded. As a result of the attitude of the government in treating the contract as rescinded from the date of the notification the appellants were not able to collect and purchased the sal seeds from the government forests which they have taken on lease for a period of about four years. The question arises whether any further relief in addition to declaration may be granted by us. It was suggested on behalf of the appellants that their lease should be extended by another period of four years. We do not think that it is permissible for us to extend the lease for a further period of four years in that fashion. We can only leave it open to the parties to work out their rights in the light of the declaration granted by us. We find that various interim orders were made from time to time. The rights of the parties will naturally have to be worked out after taking into account the interim orders.
### Response:
1
### Explanation:
State Government of agents for the purchase of and trade in specified forest produce. Section 5(1)(b) refers to purchase or transport of specified forest produce by the State Government, its officers and agents. Section 5(3) refers to sale of forest produce to the government, its officers or agents. Section 7 refers to the fixation of price at which the government, its officers or agents may preaches forest produce. Section 8 enables the opening of depots for the purchase of forest produce by the government, its officers and agents. Section 9 deals with the obligation of the State Government, its agents and officers to purchase specified forest produce. All these provisions, we see, deal with purchase of forest produce by the State Government. As stated earlier, this can only be of forest produce grown in private holdings and not in government forests. The only provision which deals with sale of forest produce by the State Government is Section 12 and that again is confined to the sale of specified forest produce purchased by the State Government, its officers or agents. Thus, Section 4, Section 5(1)(b), Section 5(3), Section 7, Section 8, Section 9, Section 10 and Section 12, all deal with the forest produce grown in private holdings and all those provisions except Sections 10 and 12 deal with purchase of forest produce by the government, its officers or agents. Section 10, as we have already seen, deals with registration of growers of forest produce and Section 12 with sale of forest produce purchased by the government. Thus none of these provisions deals with forest produce grown in government lands nor is there any other provision in the Act which expressly deals with forest produce grown in government lands. The scheme of the Act is, therefore, fully in tune with the object set out in the Statement of Objects and Reasons and in the preamble, namely, that of creating a monopoly in forest produce by making the government the exclusive purchaser of forest produce grown in private holdings. It was argued by the learned Additional Solicitor General that Section 5(1)(a) was totally out of tune with forest produce grown rest of the provisions and, while the rest of the provision dealt with forest produce grown in private holdings, the very wide language of Section 5(1)(a) made it applicable to all forest produce whether grown in private holdings or government forests. We do not think that it is permissible for us to construe Section 5(1)(a) in the very wide terms in which we are asked to construe it by the learned Additional Solicitor General because of its wide language, as that would merely introduce needless confusion into the scheme of the Act. Having scanned the object and the scheme of the Act, having examined each of the provisions of the Act textually and contextually, we do not think that it is proper for us to construe the words of Section 5(1)(a) in their literal sense; we think that the proper way to construe Section 5(1)(a) is to give a restricted meaning to the wide and general words there used so as to fit into the general scheme of the Act. Section 5(1)(a) and 5(1)(b) are connected by the conjunction and, and having regard to the circumstances leading to the enactment and the policy and design of the Act, we think that the clauses (a) and (b) must be construed in such a way as to reflect each other. We have no doubt that the contracts relating to specified forest produce which stand rescinded are contracts in relation to forest produce grown in private holdings only. If the very object of the Act is to create a monopoly in forest produce in the government so as to enable the government, among other things, to enter into contracts, there was no point in rescinding contracts already validly entered into by the government. Again Section 5(1) does not bar any future Contracts by the government in respect of forest produce; if so, what is the justification for constrain Section 5(1)(a) in such a way as to put and end to contracts already entered into by the government. Viewing Sections 5(1)(a) and 5(1)(b) together and in the light of the preamble and the Statement of Objects and Reasons and against the decor of the remaining provisions of the Act, we have no doubt that Section 5(1) like the rest of the provisions applies to forest produce grown in private holdings and not to forest produce grown on governmentIn the view that we have taken it is unnecessary for us to consider the further submission that Explanation II to Section 5(1) saves the present contract or that Explanation II is an explanation only to Section 5(1)(a) and not to Section 5(1)(b). We declare that the Act and the notification issued under the Act do not apply to forest produce grown in government forests and that it was not therefore, open to the government to treat the contract dated May 25, 1979 as rescinded. As a result of the attitude of the government in treating the contract as rescinded from the date of the notification the appellants were not able to collect and purchased the sal seeds from the government forests which they have taken on lease for a period of about four years. The question arises whether any further relief in addition to declaration may be granted by us. It was suggested on behalf of the appellants that their lease should be extended by another period of four years. We do not think that it is permissible for us to extend the lease for a further period of four years in that fashion. We can only leave it open to the parties to work out their rights in the light of the declaration granted by us. We find that various interim orders were made from time to time. The rights of the parties will naturally have to be worked out after taking into account the interim orders
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Syed Yakoob Vs. K.S. Radhakrishnan & Others | that this is an implied finding against the first respondent, but the complaint of the first respondent. is that it is made in utter disregard of his claim. So too, the Appellate Tribunal observed in its order disposing of the 18 appeals before it that the first respondent, who had secured the highest number of marks, including those in column 1 of the mark list, had his workshop and place of business en route at Cuddalore and not at either of the terminii of the route. This observation was also made in utter disregard of the claim made by the first respondent that he had a workshop at Chidambaram, one of the terminii of the route, and though the other applicants, except one, had not denied the said fact. The High Court, therefore, found on the material placed before it that the said Authority as well as the Tribunal had failed to consider the specific claim made by the first respondent in regard to his workshop at Chidambaram and, therefore, rightly set aside the order of the Appellate Tribunal so that the Appellate Tribunal might consider the claim made by the first respondent. I do not see any flaw in the reasoning of the High Court. Nor can I say that it has exceeded its jurisdiction under Art. 226 of the Constitution. But, Mr. Setalvad contended that there was material before the Tribunal and that the Tribunal gave its finding on the basis of that material. He relied upon an extract from the report of the Regional Transport Authority, Souht Arcot, dated January 31, 1957. That was a report sent by the said Authority to the State Transport Authority. Against the name of the first respondent in column 4 under the heading "possession of workshop or repair or maintenance facilities and its location it is stated. "maintaining a workshop at per G. O. at Cuddalore. Again in the report sent by the State Transport Authority to the State Transport Appellate Tribunal, against the name of the first respondent in column 8 under the heading "place of residence or principal place of business and the nearest distance the entry is "Cuddalore-on the route. This information given by the Transport Authority is presumably gathered from the earlier report of the Regional Transport Authority. Reliance is placed upon a letter dated January 10, 1957 written by the first respondent to the Secretary, State Transport Authority, in support of the contention that even the first respondent, though on July 11, 1956, he claimed to have had a workshop at Chidambaram, did not mention it therein. But a perusal of that letter shows that he did mention that he had the sector and terminal qualifications. Basing the argument on the said documents, it was contended that there was material on which the Appellate Tribunal could have come to the finding which it did, viz., that the first respondent had no workshop at either of the terminii of the route.29. Firstly, these documents were not expressly relied upon by the Tribunal for holding that the first respondent had no workshop at Chidambaram. Secondly, these documents were not relied upon by the appellant either before Srinivasan J. or before the Division Bench to the effect that the Appellate Tribunal gave a finding on the basis of the said material. Thirdly one of the said documents, viz., the letter of the first respondent, does not support the contention. The other two reports did not say that the first respondent had no workshop at Chidambaram. The officers who made the report did not make any enquiry as regards the fact whether the first respondent had a workshop at Chidambaram on the basis of the claim made by him. There is therefore, absolutely no evidence to controvert the first respondents claim and that is the reason why the appellant did not place the said documents before the High Court in support of his contention that there was material before the State Transport Authority and the State Transport Appellate Tribunal for holding that the first respondent, had no workshop at Chidambaram. A perusal of the two orders shows that presumably in view of the innumerable applications, the specific claim of the first respondent was completely missed by the Transport Authority and the Appellate Tribunal. This is, therefore, a clear case of a finding made by the Tribunal without any evidence to support it and by ignoring a specific claim made before it. I am, therefore, of opinion that the High Court rightly set aside the order of the Appellate Tribunal.30. The next question is whether this is a fit case for interference under Art. 136 of the Constitution in exercise of this Courts extraordinary jurisdiction thereunder. Srinivasan. J. and on appeal the Division Bench on the basis of the material placed and the concession made before them, came to the conclusion that the Appellate Tribunal had ignored the specific claim set up by the first respondent. The first respondent had secured the highest number of marks. His claim, if substantiated, would certainly tilt the balance in his favour. The material placed before us was not relied upon by the appellant before the High Court. The High Court gave a further opportunity to the Appellate Tribunal to consider the claim of the first respondent. Though the High Court quashed the order of the Tribunal, the observation in the judgment clearly shows that the Tribunal could reconsider the matter. Indeed, learned counsel for the first respondent conceded that fact. The appellant would have every opportunity to establish that the first respondent has no workshop at Chidambaram. Instead of following the straight course, he is trying to shut out further enquiry to arrive at the truth. In the circumstances I am of the view that this is not a case which calls for the exercise of this Courts extraordinary jurisdiction to set aside the order of the High Court.31. In the result, the appeal fails and is dismissed with costs of the first respondent.ORDER32. | 1[ds]In our opinion, it is neither possible nor desirable to attempt either to define or to describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each cases and upon the nature and scope of the legal provision which is alleged to have been misconstrued orour opinion, it would have been better if the Division Bench had not expressed any opinion on this aspect of the matter, particularly when it came to the conclusion that the said matter was primarily for the decision of the Appellateour opinion, the said decision does not lend any assistance to Mr. Pathaks contention. In that case, this Court was satisfied that "the Tribunal made a clear error of law inasmuch as it held that in the case of the first respondent, as it had a brunch at Kumbakonam, its other branch at Mannargudi should be ignored. The judgment shows that this Court took the view that it was obviously an untenable proposition to hold that even if a company has a well equipped office on a route in respect of which a permit is applied for, it shall be ignored if the company has some other branch somewhere unconnected with that route, and it was observed that that was precisely what Appellate Tribunal had held and that, according to the Court, clearly was an error apparent on the face of the record. It is in that connection that this Court referred to the mandatory provisions of S. 47. We do not think that this decision can be legitimately pressed into service by Mr. Pathak in the present case. It is only after it is proved that respondent No 1 had a workshop at Chidambaram that any subsequent question about the interests of the public generally can possibly arise. If, as in the present case, the Appellate Tribunal has hold that respondent No. 1 did not own a workshop at Chidambaram, no consideration of public interests can arise at all, and it is with this question that the present writ proceedings are corcerned. We ought to add that the decision in the case of K. M. Shanmugam cannot justify a party whose application for permit has been rejected by the authorities under the Act, to move the High Court under Art. 226 and invite it to consider all questions of fact on the plea that the decision of the said questions of fact may assist him to invoke the provisions of S. 47. That clearly is not the effect of the saidthe circumstances of the present case, we do not see how considerations of justice can really arise. The Tribunals of fact have found that respondent No. 1 does not own a workshop at Chidambaram and having regard to the other relevant circumstances which the Tribunals have considered, the fact that he does not own a workshop at Chidambaram has ultimately proved decisive against respondent No. 1 and in favour of the appellant. If that be so a decision based on facts found by the Tribunal cannot be reopened on the plausible plea that a further enquiry should be made because that would be just. If findings of fact were allowed to be disturbed by High Courts in such writ proceedings, that may lead to an interminable search for correct findings and would virtually convert the High Courts into Appellate Courts competent to deal with questions of fact. That is why we think, in entertaining petitions for writs of certiorari, it is necessary to remember that findings of fact recorded by special Tribunals which have been clothed with jurisdiction to deal with them, should be treated as final between the parties, unless, of course, it is shown that the impugned finding is based on no evidence. Therefore, we do not think the plea made by Mr. Pathak that in the interests of justice we should refrain from setting aside the order under appeal, can be upheld.17. There is one more point to which reference must be made. It appears that in the writ petition filed by respondent No. 1 he claimed that the orders passed by the Authority and the Appellate Tribunal should be set aside, and a rule was issued in terms of the prayer made in the said petition. Ultimately, the said rule has been made absolute. It is obvious that in the writ petition respondent No. 1 did not challenge the grant of the permit to the Provincial Transport (Pvt.) Ltd., but unfortunately, having regard to the prayer made by respondent No. 1 in his writ petition, the orders ultimately passed in the said proceedings may, if technically construed, mean that the orders of the Authority as well as the Appellate Tribunal have been set aside and that clearly was not and could not have been the intention of the High Court in issuing the writ. It would, we think, be better if in issuing a writ on a writ petition and in making it absolute in case the writ petition succeeds, care is taken to drawn the order more accurately.Mr. Ranganadham Chetty who appears for respondents 2 and 3 has asked for his costs. We do not think this request can be accepted. It may be that in such proceedings, the Authority and the Appellate Tribunal are proper and necessary parties, but unless allegations are made against them which need a reply from them, it is not usual for the authorities to be represented by lawyers in Court. In ordinary cases, their position is like that of courts or other Tribunals against whose decisions writ proceedings are filed; they are not interested in the merits of the dispute in any sense, and so, their representation by lawyers in such proceedings in wholly unnecessary and even inappropriate. That is why we direct that respondents 2 and 3 should bear their own costs. | 1 | 7,669 | 1,103 | ### Instruction:
Assess the case to predict the court's ruling (favorably (1) or unfavorably (0)), and then expound on this prediction by highlighting and analyzing key textual elements from the proceeding.
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that this is an implied finding against the first respondent, but the complaint of the first respondent. is that it is made in utter disregard of his claim. So too, the Appellate Tribunal observed in its order disposing of the 18 appeals before it that the first respondent, who had secured the highest number of marks, including those in column 1 of the mark list, had his workshop and place of business en route at Cuddalore and not at either of the terminii of the route. This observation was also made in utter disregard of the claim made by the first respondent that he had a workshop at Chidambaram, one of the terminii of the route, and though the other applicants, except one, had not denied the said fact. The High Court, therefore, found on the material placed before it that the said Authority as well as the Tribunal had failed to consider the specific claim made by the first respondent in regard to his workshop at Chidambaram and, therefore, rightly set aside the order of the Appellate Tribunal so that the Appellate Tribunal might consider the claim made by the first respondent. I do not see any flaw in the reasoning of the High Court. Nor can I say that it has exceeded its jurisdiction under Art. 226 of the Constitution. But, Mr. Setalvad contended that there was material before the Tribunal and that the Tribunal gave its finding on the basis of that material. He relied upon an extract from the report of the Regional Transport Authority, Souht Arcot, dated January 31, 1957. That was a report sent by the said Authority to the State Transport Authority. Against the name of the first respondent in column 4 under the heading "possession of workshop or repair or maintenance facilities and its location it is stated. "maintaining a workshop at per G. O. at Cuddalore. Again in the report sent by the State Transport Authority to the State Transport Appellate Tribunal, against the name of the first respondent in column 8 under the heading "place of residence or principal place of business and the nearest distance the entry is "Cuddalore-on the route. This information given by the Transport Authority is presumably gathered from the earlier report of the Regional Transport Authority. Reliance is placed upon a letter dated January 10, 1957 written by the first respondent to the Secretary, State Transport Authority, in support of the contention that even the first respondent, though on July 11, 1956, he claimed to have had a workshop at Chidambaram, did not mention it therein. But a perusal of that letter shows that he did mention that he had the sector and terminal qualifications. Basing the argument on the said documents, it was contended that there was material on which the Appellate Tribunal could have come to the finding which it did, viz., that the first respondent had no workshop at either of the terminii of the route.29. Firstly, these documents were not expressly relied upon by the Tribunal for holding that the first respondent had no workshop at Chidambaram. Secondly, these documents were not relied upon by the appellant either before Srinivasan J. or before the Division Bench to the effect that the Appellate Tribunal gave a finding on the basis of the said material. Thirdly one of the said documents, viz., the letter of the first respondent, does not support the contention. The other two reports did not say that the first respondent had no workshop at Chidambaram. The officers who made the report did not make any enquiry as regards the fact whether the first respondent had a workshop at Chidambaram on the basis of the claim made by him. There is therefore, absolutely no evidence to controvert the first respondents claim and that is the reason why the appellant did not place the said documents before the High Court in support of his contention that there was material before the State Transport Authority and the State Transport Appellate Tribunal for holding that the first respondent, had no workshop at Chidambaram. A perusal of the two orders shows that presumably in view of the innumerable applications, the specific claim of the first respondent was completely missed by the Transport Authority and the Appellate Tribunal. This is, therefore, a clear case of a finding made by the Tribunal without any evidence to support it and by ignoring a specific claim made before it. I am, therefore, of opinion that the High Court rightly set aside the order of the Appellate Tribunal.30. The next question is whether this is a fit case for interference under Art. 136 of the Constitution in exercise of this Courts extraordinary jurisdiction thereunder. Srinivasan. J. and on appeal the Division Bench on the basis of the material placed and the concession made before them, came to the conclusion that the Appellate Tribunal had ignored the specific claim set up by the first respondent. The first respondent had secured the highest number of marks. His claim, if substantiated, would certainly tilt the balance in his favour. The material placed before us was not relied upon by the appellant before the High Court. The High Court gave a further opportunity to the Appellate Tribunal to consider the claim of the first respondent. Though the High Court quashed the order of the Tribunal, the observation in the judgment clearly shows that the Tribunal could reconsider the matter. Indeed, learned counsel for the first respondent conceded that fact. The appellant would have every opportunity to establish that the first respondent has no workshop at Chidambaram. Instead of following the straight course, he is trying to shut out further enquiry to arrive at the truth. In the circumstances I am of the view that this is not a case which calls for the exercise of this Courts extraordinary jurisdiction to set aside the order of the High Court.31. In the result, the appeal fails and is dismissed with costs of the first respondent.ORDER32.
### Response:
1
### Explanation:
describe adequately all cases of errors which can be appropriately described as errors of law apparent on the face of the record. Whether or not an impugned error is an error of law and an error of law which is apparent on the face of the record, must always depend upon the facts and circumstances of each cases and upon the nature and scope of the legal provision which is alleged to have been misconstrued orour opinion, it would have been better if the Division Bench had not expressed any opinion on this aspect of the matter, particularly when it came to the conclusion that the said matter was primarily for the decision of the Appellateour opinion, the said decision does not lend any assistance to Mr. Pathaks contention. In that case, this Court was satisfied that "the Tribunal made a clear error of law inasmuch as it held that in the case of the first respondent, as it had a brunch at Kumbakonam, its other branch at Mannargudi should be ignored. The judgment shows that this Court took the view that it was obviously an untenable proposition to hold that even if a company has a well equipped office on a route in respect of which a permit is applied for, it shall be ignored if the company has some other branch somewhere unconnected with that route, and it was observed that that was precisely what Appellate Tribunal had held and that, according to the Court, clearly was an error apparent on the face of the record. It is in that connection that this Court referred to the mandatory provisions of S. 47. We do not think that this decision can be legitimately pressed into service by Mr. Pathak in the present case. It is only after it is proved that respondent No 1 had a workshop at Chidambaram that any subsequent question about the interests of the public generally can possibly arise. If, as in the present case, the Appellate Tribunal has hold that respondent No. 1 did not own a workshop at Chidambaram, no consideration of public interests can arise at all, and it is with this question that the present writ proceedings are corcerned. We ought to add that the decision in the case of K. M. Shanmugam cannot justify a party whose application for permit has been rejected by the authorities under the Act, to move the High Court under Art. 226 and invite it to consider all questions of fact on the plea that the decision of the said questions of fact may assist him to invoke the provisions of S. 47. That clearly is not the effect of the saidthe circumstances of the present case, we do not see how considerations of justice can really arise. The Tribunals of fact have found that respondent No. 1 does not own a workshop at Chidambaram and having regard to the other relevant circumstances which the Tribunals have considered, the fact that he does not own a workshop at Chidambaram has ultimately proved decisive against respondent No. 1 and in favour of the appellant. If that be so a decision based on facts found by the Tribunal cannot be reopened on the plausible plea that a further enquiry should be made because that would be just. If findings of fact were allowed to be disturbed by High Courts in such writ proceedings, that may lead to an interminable search for correct findings and would virtually convert the High Courts into Appellate Courts competent to deal with questions of fact. That is why we think, in entertaining petitions for writs of certiorari, it is necessary to remember that findings of fact recorded by special Tribunals which have been clothed with jurisdiction to deal with them, should be treated as final between the parties, unless, of course, it is shown that the impugned finding is based on no evidence. Therefore, we do not think the plea made by Mr. Pathak that in the interests of justice we should refrain from setting aside the order under appeal, can be upheld.17. There is one more point to which reference must be made. It appears that in the writ petition filed by respondent No. 1 he claimed that the orders passed by the Authority and the Appellate Tribunal should be set aside, and a rule was issued in terms of the prayer made in the said petition. Ultimately, the said rule has been made absolute. It is obvious that in the writ petition respondent No. 1 did not challenge the grant of the permit to the Provincial Transport (Pvt.) Ltd., but unfortunately, having regard to the prayer made by respondent No. 1 in his writ petition, the orders ultimately passed in the said proceedings may, if technically construed, mean that the orders of the Authority as well as the Appellate Tribunal have been set aside and that clearly was not and could not have been the intention of the High Court in issuing the writ. It would, we think, be better if in issuing a writ on a writ petition and in making it absolute in case the writ petition succeeds, care is taken to drawn the order more accurately.Mr. Ranganadham Chetty who appears for respondents 2 and 3 has asked for his costs. We do not think this request can be accepted. It may be that in such proceedings, the Authority and the Appellate Tribunal are proper and necessary parties, but unless allegations are made against them which need a reply from them, it is not usual for the authorities to be represented by lawyers in Court. In ordinary cases, their position is like that of courts or other Tribunals against whose decisions writ proceedings are filed; they are not interested in the merits of the dispute in any sense, and so, their representation by lawyers in such proceedings in wholly unnecessary and even inappropriate. That is why we direct that respondents 2 and 3 should bear their own costs.
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