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Commissioner of Income Tax-2, Mumbai Vs. Raymond Limited | Oral Judgment: (Dr. D.Y. Chandrachud, J.)This appeal by the Revenue against the order of the Income Tax Appellate Tribunal dated 13 February 2009 relates to AY 1997-98. Two questions of law have been framed by the Revenue which are as follows:(a) Whether on the facts and in the circumstances of the case and in law, the ITAT was right in deleting the adjustment made by the AO relating to Redemption of Debentures Reserve amounting to Rs.18.80 crores;(b) Whether on the facts and in the circumstances and in law, the ITAT was right in deleting the disallowance in respect of capital expenditure incurred in respect of Steel Division at Nashik as revenue expenditure2. Re question (a): Section 115JA of the Income Tax Act, 1961 provides in sub-section (2) that every assessee, being a company shall for the purpose of the section prepare its profit and loss account for the relevant previous year in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act, 1956. The explanation to the Section provides that for the purpose of the section, "book profit" means the net profit as shown in the profit and loss account for the relevant previous year prepared under sub-section (2) as increased inter alia by "(b) the amounts carried to any reserves by whatever name called". Part III of Schedule VI to the Companies Act, 1956 provides inter alia in Clause 7(1)(b) that, "the expression "reserve" shall not include any amount written off or retained by way of providing for depreciation, renewals or diminution in value of assets or retained by way of providing for any known liability".3. The nature of a Debenture Redemption Reserve (DRR) has been considered by the judgment of the Supreme Court in National Rayon Corporation Ltd. Vs. Commissioner of Income Tax (1997) 227 ITR 764. The Supreme Court after adverting to the provisions of Clause 7 of Part III to Schedule VI of the Companies Act, 1956 held that "the basic principle is that an amount set apart to meet a known liability cannot be regarded as reserve". Where a company issues debentures, the liability to repay arises the moment the money is borrowed. By issuing debentures a company takes a loan against the security of its assets. Though the loan may not be repayable in the year of account, the obligation to repay is a present obligation. Hence any money set apart in the accounts of the company to redeem the debenture has to be treated as monies set apart to meet a known liability. Consequently, debentures have to be shown in the balance sheet of a company as a liability. Being monies set apart to meet a known liability, a Debenture Redemption Reserve cannot be regarded as a reserve for the purpose of Schedule VI to the Companies Act, 1956. In National Rayon Corporation, the Supreme Court followed its earlier decision in Vazir Sultan Tobacco Co. Ltd. Vs. CIT [1981] 132 ITR 559 , in holding that since the concept of reserve and of a provision is well known in commercial accountancy and is used in the Companies Act, 1956, while dealing with the preparation of balance sheets and profit and loss accounts the meaning of that concept would have to be gathered from the meaning attached in the Companies Act itself. The following observations of the Supreme Court are of significance:"The debentures were nothing but secured loans. Merely because the debentures were not redeemable during the accounting period, the liability to redeem the debentures did not cease to exist. It was redeemable or repayable at a future date. But it was a known liability. In the form of balance-sheet prescribed by the Act in Schedule VI, the secured loans have to be shown under the heading "liabilities". Secured loans include (1) debentures, (2) loans and advances from banks, (3) loans and advances from subsidiaries, and (4) other loans and advances. The secured loans might not be immediately repayable, but the liability to repay these loans is an existing liability and has to be shown in the companys balance-sheet for the relevant year of account as a liability. Amounts set apart to pay these loans cannot be "reserve". The interpretation clause of the balance-sheet in Schedule VI of the Companies Act specifically lays down that reserves shall not include any amount written off or retained by way of providing for a known liability."4. The mere fact that a Debenture Redemption Reserve is labeled as a reserve will not render it as a reserve in the true sense or meaning of that concept. An amount which is retained by way of providing for a known liability is not a reserve. Consequently the Tribunal was correct in holding that the amount which was set apart as a Debenture Redemption Reserve is not a reserve within the meaning of Explanation (b) to Section 115JA of the Income Tax Act, 1961. No substantial question of law would, therefore, arise.5. Re question (b): As regards question (b) the Tribunal has relied upon its order in the case of the assessee for Assessment year 1996-97 which in turn relies upon an order for AY 1990-91. That order in turn relied upon the order of the Tribunal for Assessment year 1985-86 which had been confirmed by this Court, treating pre-operative expenses as revenue expenditure. The order passed by the Assessing Officer notes in paragraph 9.1 that the pre-operative expenses related to the following items viz. salary and wages, staff welfare expenses, power, travelling, legal and professional fees and miscellaneous expenses. Evidently these are of a revenue nature. For all these reasons question (b) will not give rise to any substantial question of law. | 0[ds]4. The mere fact that a Debenture Redemption Reserve is labeled as a reserve will not render it as a reserve in the true sense or meaning of that concept. An amount which is retained by way of providing for a known liability is not a reserve. Consequently the Tribunal was correct in holding that the amount which was set apart as a Debenture Redemption Reserve is not a reserve within the meaning of Explanation (b) to Section 115JA of the Income Tax Act, 1961. No substantial question of law would, therefore, arise.5. Re question (b): As regards question (b) the Tribunal has relied upon its order in the case of the assessee for Assessment yearwhich in turn relies upon an order for AYThat order in turn relied upon the order of the Tribunal for Assessment yearwhich had been confirmed by this Court, treatingexpenses as revenue expenditure. The order passed by the Assessing Officer notes in paragraph 9.1 that theexpenses related to the following items viz. salary and wages, staff welfare expenses, power, travelling, legal and professional fees and miscellaneous expenses. Evidently these are of a revenue nature. For all these reasons question (b) will not give rise to any substantial question of law. | 0 | 1,091 | 235 | ### Instruction:
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Oral Judgment: (Dr. D.Y. Chandrachud, J.)This appeal by the Revenue against the order of the Income Tax Appellate Tribunal dated 13 February 2009 relates to AY 1997-98. Two questions of law have been framed by the Revenue which are as follows:(a) Whether on the facts and in the circumstances of the case and in law, the ITAT was right in deleting the adjustment made by the AO relating to Redemption of Debentures Reserve amounting to Rs.18.80 crores;(b) Whether on the facts and in the circumstances and in law, the ITAT was right in deleting the disallowance in respect of capital expenditure incurred in respect of Steel Division at Nashik as revenue expenditure2. Re question (a): Section 115JA of the Income Tax Act, 1961 provides in sub-section (2) that every assessee, being a company shall for the purpose of the section prepare its profit and loss account for the relevant previous year in accordance with the provisions of Parts II and III of Schedule VI to the Companies Act, 1956. The explanation to the Section provides that for the purpose of the section, "book profit" means the net profit as shown in the profit and loss account for the relevant previous year prepared under sub-section (2) as increased inter alia by "(b) the amounts carried to any reserves by whatever name called". Part III of Schedule VI to the Companies Act, 1956 provides inter alia in Clause 7(1)(b) that, "the expression "reserve" shall not include any amount written off or retained by way of providing for depreciation, renewals or diminution in value of assets or retained by way of providing for any known liability".3. The nature of a Debenture Redemption Reserve (DRR) has been considered by the judgment of the Supreme Court in National Rayon Corporation Ltd. Vs. Commissioner of Income Tax (1997) 227 ITR 764. The Supreme Court after adverting to the provisions of Clause 7 of Part III to Schedule VI of the Companies Act, 1956 held that "the basic principle is that an amount set apart to meet a known liability cannot be regarded as reserve". Where a company issues debentures, the liability to repay arises the moment the money is borrowed. By issuing debentures a company takes a loan against the security of its assets. Though the loan may not be repayable in the year of account, the obligation to repay is a present obligation. Hence any money set apart in the accounts of the company to redeem the debenture has to be treated as monies set apart to meet a known liability. Consequently, debentures have to be shown in the balance sheet of a company as a liability. Being monies set apart to meet a known liability, a Debenture Redemption Reserve cannot be regarded as a reserve for the purpose of Schedule VI to the Companies Act, 1956. In National Rayon Corporation, the Supreme Court followed its earlier decision in Vazir Sultan Tobacco Co. Ltd. Vs. CIT [1981] 132 ITR 559 , in holding that since the concept of reserve and of a provision is well known in commercial accountancy and is used in the Companies Act, 1956, while dealing with the preparation of balance sheets and profit and loss accounts the meaning of that concept would have to be gathered from the meaning attached in the Companies Act itself. The following observations of the Supreme Court are of significance:"The debentures were nothing but secured loans. Merely because the debentures were not redeemable during the accounting period, the liability to redeem the debentures did not cease to exist. It was redeemable or repayable at a future date. But it was a known liability. In the form of balance-sheet prescribed by the Act in Schedule VI, the secured loans have to be shown under the heading "liabilities". Secured loans include (1) debentures, (2) loans and advances from banks, (3) loans and advances from subsidiaries, and (4) other loans and advances. The secured loans might not be immediately repayable, but the liability to repay these loans is an existing liability and has to be shown in the companys balance-sheet for the relevant year of account as a liability. Amounts set apart to pay these loans cannot be "reserve". The interpretation clause of the balance-sheet in Schedule VI of the Companies Act specifically lays down that reserves shall not include any amount written off or retained by way of providing for a known liability."4. The mere fact that a Debenture Redemption Reserve is labeled as a reserve will not render it as a reserve in the true sense or meaning of that concept. An amount which is retained by way of providing for a known liability is not a reserve. Consequently the Tribunal was correct in holding that the amount which was set apart as a Debenture Redemption Reserve is not a reserve within the meaning of Explanation (b) to Section 115JA of the Income Tax Act, 1961. No substantial question of law would, therefore, arise.5. Re question (b): As regards question (b) the Tribunal has relied upon its order in the case of the assessee for Assessment year 1996-97 which in turn relies upon an order for AY 1990-91. That order in turn relied upon the order of the Tribunal for Assessment year 1985-86 which had been confirmed by this Court, treating pre-operative expenses as revenue expenditure. The order passed by the Assessing Officer notes in paragraph 9.1 that the pre-operative expenses related to the following items viz. salary and wages, staff welfare expenses, power, travelling, legal and professional fees and miscellaneous expenses. Evidently these are of a revenue nature. For all these reasons question (b) will not give rise to any substantial question of law.
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4. The mere fact that a Debenture Redemption Reserve is labeled as a reserve will not render it as a reserve in the true sense or meaning of that concept. An amount which is retained by way of providing for a known liability is not a reserve. Consequently the Tribunal was correct in holding that the amount which was set apart as a Debenture Redemption Reserve is not a reserve within the meaning of Explanation (b) to Section 115JA of the Income Tax Act, 1961. No substantial question of law would, therefore, arise.5. Re question (b): As regards question (b) the Tribunal has relied upon its order in the case of the assessee for Assessment yearwhich in turn relies upon an order for AYThat order in turn relied upon the order of the Tribunal for Assessment yearwhich had been confirmed by this Court, treatingexpenses as revenue expenditure. The order passed by the Assessing Officer notes in paragraph 9.1 that theexpenses related to the following items viz. salary and wages, staff welfare expenses, power, travelling, legal and professional fees and miscellaneous expenses. Evidently these are of a revenue nature. For all these reasons question (b) will not give rise to any substantial question of law.
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Umesh Badrinarayan Bangur Vs. Sanjay A. Poojary, Narcotics Control Bureau & Others | submission considered by Delhi High Court was that Section 75 of the Act empowers the Central Government to delegate its functions under the Act. The Court held that no such power was delegated under Section 75 of the Act upon NCB. On that finding, the Court held that the argument of NCB that the delegation of those powers under Sections 41, 42, 53 and 67 of the Act was misplaced, inasmuch as the powers under Section 75, which were conferred by the above-mentioned Notification, were totally different from the powers under Sections 41, 42, 53 and 67 of the Act, which were not specifically delegated by the Central Government. On that basis, the Court proceeded to hold that NCB was not the authority, which was empowered to perform functions under Section 41, 42, 53 or 67 of the Act.39. In the present case, the argument, however, is limited to the fact that the detention of the goods was done on high seas by NCB for which reason the entire action is vitiated being without authority of law. We have already adverted to the contents of the complaint as well as the relevant documents, and have held that, as at present, it is not possible to hold, even prima facie, that the search and seizure of the goods in question was done on high seas. Whereas, it appears that the case for the prosecution is that the search and seizure was conducted after the goods had arrived in the dock. If so, NCB was competent to proceed in accordance with law.40. Besides the Delhi High Court judgment, no other judgment in the compilation directly deals with the aspects examined by us hitherto. Hence, we do not wish to burden the judgment by referring to those decisions included in the Compilation of Judgments. We may clarify that the view expressed by us in this decision is only to answer the two questions raised before us, which have been pressed into service for quashing of the complaint qua the petitioner herein. The view expressed in this judgment is, therefore, not an expression of opinion either way of the merits of the allegations. The same will have to be answered on the basis of evidence which will be brought on record during the trial.41. Suffice it to observe that this is not a fit case for quashing of complaint, more so on the ground that the complaint is founded on the action of officials of NCB, which was palpably without authority of law.42. While parting, we may place on record that this Writ Petition was filed as back as in April, 2009, and was being adjourned from time to time since then for reasons recorded in the concerned orders. When the matter appeared before our Bench on 15th September, 2010, for the first time, notice was issued to the opposite party, as the Court felt that formidable point was raised. Thereafter, the matter was ordered to be placed under caption "Final Disposal". Since then, the matter appeared on different dates. On the question, whether the action can proceed against the petitioner, who was only a Professional Director of the Company, was considered on 11th January, 2011 by this Bench. Tentative opinion was indicated during the course of hearing after going through the record. On that day, another question (Point No.2 dealt with in this judgment) was raised. Thereafter, when the matter appeared on 21st February, 2011, it was adjourned to 22nd February, 2011, with direction that the matter be taken up first on Board, as we wanted to conclude the hearing. We had clearly indicated that no request for adjournment on the ground of non-availability of senior counsel will be entertained. After rejecting argument for adjournment, we called upon the instructing advocate to proceed with the argument, as the hearing of the matter was substantially over on the earlier occasion. He did commence the argument, and since the same remained inconclusive, we kept the matter on 22nd February, 2011. When the matter was taken up on that day, the petitioner informed us that as his advocate, who had commenced the argument, had to suddenly go to Delhi, even the said advocate was not available. We found this development to be somewhat unusual. Even then, we accommodated the petitioner, and made it clear that the matter would now proceed on 23rd February, 2011, when he should make necessary arrangement.On 23rd February, 2011, the advocate-on-record himself appeared, and stated that he may be given time till Monday, the 28th February, 2011, to prepare the matter himself. By way of indulgence, we adjourned the matter to 28th February, 2011, on which date, however, to our surprise, the petitioner appeared in person, and told us that he would like to discharge his advocate-on-record, and would proceed with the argument himself. Accordingly, we recorded that statement and called upon the petitioner to address us. He, instead, requested the Court to give him time to file Written Submissions and Compilation of Judgments, on the basis of which, the Court may proceed to decide this matter. At his request, therefore, we deferred the hearing to 7th March, 2011. The matter, however, was eventually taken up on 11th March, 2011, when the petitioner unambiguously stated that arguments on behalf of the petitioner has already been completed, and the Court may decide the matter on the basis of his Written Submissions. Thereafter the arguments of the respondents were concluded. We, however, gave time to the respondents to file brief Written Submissions, if any, and also permitted the petitioner to file reply thereto. Accordingly, the respondents as well as the petitioner have filed Written Submissions and Additional Written Submissions respectively. After perusing the same, and as no further oral argument was required or insisted by any party, we have proceeded to pronounce the reserved verdict. We are informed that the petitioner has objected to taking the written submissions of respondent on record as it is not filed within time. However, we reject that objection. | 0[ds]5. It is alleged that, on the basis of information, officers of Narcotics Control Bureau, Mumbai Zonal Unit, Mumbai, Customs, Nhava Sheva and Police, along with two independent panch witnesses and Omprakash Nogaja (accused No.1), Umesh B. Bangur (petitioneraccused No.2) and Vijay O. Nogaja, Directors of OPM International Pvt. Ltd., Mumbai, and Vijay Anant Thorve (accused No.3) Managing Director of Mayur Clearing Agency (Custom House Agent) presented themselves at Berth No.1, Gateway Terminal India, Nhava Sheva, Navi Mumbai. The search of the container of Maersk Line bearing No.MSKU 636761, which was shipped on board vessel "Maersk Rotterdam" on 18th April, 2006 at Port Guayaquil, Ecuador, South America, and was bound for JNPT, India, was suspected to contain 200 Kgs. of Cocaine, a narcotic drug, in the name of consignee OPM International Pvt. Ltd. The said container was searched by the panchas, and it was revealed that it contained bags weighing about 2.870 Kgs., 6.662 Kgs., 6.554 Kgs., 6.396 Kgs. and 6.420 Kgs., respectively. The total gross weight of the bags marked 1(a) to 1(e) was 28.902 Kgs. On emptying contents of scotch taped packets recovered from packets marked 1(a) to 1(e) into a larger polythene bag, the same was weighed on a weighing machine and it was found to be about 24.800 Kgs. of Cocaine, which was placed into a carton and tied. The entire search and seizure process was done in the presence of accused Nos.1 and 2, who were the Directors of OPM International Pvt. Ltd. They put their signatures on the label affixed on carton marked I. Be that as it may, accused No.1, on being enquired, disclosed that five more containers were to arrive, besides eight containers. It is alleged that the officers then proceeded to carry out further search, and during the said search, recovered additional quantity of Cocaine, which also was seized in the presence of the accused, including the petitioner.6. Indeed, mere presence of the petitioner at the time of search and seizure or his putting his signature on the label affixed on carton in his capacity as Professional Director of the Company by itself may not be enough to proceed against him.7. Reverting to the allegations in the complaint specific to the role played by the concerned accused in the import or, especially, that each of them had knowledge about the import of contraband drugs, in paragraph 28 of the complaint, on the basis of the statement of accused No.1, it is stated that the consignor of the said eight containers, including Container No.MSKU 8636761, was Megha International Pte. Ltd.,giving details regarding the consignment, he has stated that earlier, the business of import was being done by Royal Global Pte. Ltd., but he wanted to maintain a distance with his brother, and, accordingly, as per the latters advice, he started importing through Megha International Pte. Ltd. He has stated that Madhu (wife of Manak Maheshwari, his brother) was having 25% shares in OPM International Pvt. Ltd., while Neelu (wife of S.P. Biyani) was having 49% shares in his company and the petitioner herein, Umesh Bangur, and Om Prakashs son, Vijay Nogaja, together held 1% shares in the said company. So far as the role played by the petitioner is concerned, it is alleged that accused No.1, in his statement, has mentioned that the petitioner (Umesh Bangur, accused No.2) handled the legal and company matters.Considering the allegations in the complaint and the contents of the statements of the accused, which are placed before us, we are afraid, it is not possible to accede to the argument of the petitioner so as to quash the complaint pending against the petitioner (accused No.2). In the first place, it is not a case where no allegation is made against the petitioner in the said complaint. Whereas, the prosecution case suggests that the petitioner herein was part of criminal conspiracy. As aforesaid, the offence alleged to have been committed by the accused is also under Section 29 of the NDPS Act for abatement and criminal conspiracy. In that view of the matter, the argument of the petitioner that the criminal action against the petitioner cannot be proceeded, as he has been roped in merely because he is a Professional Director of the company, who indulged in the offence of importing the contraband narcotic drug does not hold good. Going by the abovenoted allegations, it is the prosecution case that the role played by the petitioner (accused No.2) was not limited to that of Professional Director, but his involvement is something more than that and being party to criminal conspiracy. The correctness of these allegations will have to be examined during the trial keeping in mind the defences of the petitioner, if any. Suffice it to observe that the first argument of the petitioner to invite this Court to quash the criminal complaint against the petitioner is devoid of merits.23. Turning to the second contention, the same proceeds on the premise that the vessel was intercepted by the officials of NCB, on the high sea with the help of Coast Guard before it entered the Mumbai waters, it necessarily follows that the said action is without authority of law. As a result, the entire action initiated by the officials of NCB is vitiated. This argument proceeds on the basis that the area of operation of the officials of NCB is limited, and is not extended, to Mumbai waters, much less high sea. Once again this argument will have to be answered on the basis of the allegation made in the complaint.As regards Exhibit F, Panchnama dated 3rd June, 2006, that mentions that the panchas, along with others, were taken to Berth No.1 of Gateway Terminals India, Nhava Sheva, Navi Mumbai, at 14.00 hours on 3rd June, 2006, when the procedure of search and seizure was undertaken in the manner mentioned in the said panchnama.28. Taking the last document first, viz., panchnama, even on a fair reading of the said document. it does not, in any manner, even prima facie, substantiate the stand of the petitioner regarding the eight containers, in which the narcotic contraband was "seized" inor, for that matter, after entering the Indian waters. Even the document, Exhibit D, communication sent by A.P. Patil, Superintendent to Anirudha Lele of Maersk CFS, in our opinion, does not even prima facie, indicate that the search and seizure of narcotic contraband was done outside the area of operation of the officials of NCB. Indeed, it refers to the fact that the captain of Vessel S.L. VOYAGER was served with a Detention Order, detaining the eight containers, which were required to be examined under the NDPS Act, with instructions not to send those containers to Mulund CFS, but retain at Nhava Sheva CFS for detailed examination by the officials of NCB. The fact so stated does not take the matter any further for thedoubt, the action required to be taken in relation to the acts of commission and omission, inviting action under the provisions of the "Customs Act", can be taken only by the officials of the Customs Authority. However, we find force in the argument of the respondents that, having regard to the setting in which the provisions of the NDPS Act operate, the action to be taken in furtherance of the provisions of the NDPS Act is, essentially, that of the Central Government. It is the Central Government, by virtue of Section 4(3) of the NDPS Act, by order, published in the Official Gazette, constitutes an authority or "hierarchy of authorities" by such name or names as may be specified in the order for the purpose of exercising such of the powers and functions of the Central Government under that Act and for taking measures with respect to such matters referred to in(2) of Section 4 and subject to the provisions and control of the Central Government. By virtue of Section 4(1) of the NDPS Act, it is the bounden duty of the Central Government to take all such measures as it deems necessary for the purpose of preventing obtaining and combating abuse of narcotic drugs and psychotropic substances and the illicit traffic therein.On conjoint reading of the aforesaid provisions, there is no manner of doubt that the officials of NCB are competent to enter upon in the area which is primarily under the control of the Customs Authority, but which area would also fall within the area of operation of the officials of NCB within the meaning of NDPS Act, so as to conduct search and seizure at such place. If so, the argument of the petitioner that the action of the officials of NCB is vitiated, being without authority of law, is devoid of merits.Considering those Notifications and the provisions of the NDPS Act of 1985, coupled with the fact that, going by the material presently on record, prima facie, it is not possible to take the view that the power exercised by the officials of NCB, on the basis of which, the complaint has been filed, can be said to have been taken by them outside their territorial jurisdiction, as is sought to contended before us.In the present case, the argument, however, is limited to the fact that the detention of the goods was done on high seas by NCB for which reason the entire action is vitiated being without authority of law. We have already adverted to the contents of the complaint as well as the relevant documents, and have held that, as at present, it is not possible to hold, even prima facie, that the search and seizure of the goods in question was done on high seas. Whereas, it appears that the case for the prosecution is that the search and seizure was conducted after the goods had arrived in the dock. If so, NCB was competent to proceed in accordance withopinion was indicated during the course of hearing after going through the record. On that day, another question (Point No.2 dealt with in this judgment) was raised. Thereafter, when the matter appeared on 21st February, 2011, it was adjourned to 22nd February, 2011, with direction that the matter be taken up first on Board, as we wanted to conclude the hearing. We had clearly indicated that no request for adjournment on the ground ofof senior counsel will be entertained. After rejecting argument for adjournment, we called upon the instructing advocate to proceed with the argument, as the hearing of the matter was substantially over on the earlier occasion. He did commence the argument, and since the same remained inconclusive, we kept the matter on 22nd February, 2011. When the matter was taken up on that day, the petitioner informed us that as his advocate, who had commenced the argument, had to suddenly go to Delhi, even the said advocate was not available. We found this development to be somewhat unusual. Even then, we accommodated the petitioner, and made it clear that the matter would now proceed on 23rd February, 2011, when he should make necessary arrangement.On 23rd February, 2011, thehimself appeared, and stated that he may be given time till Monday, the 28th February, 2011, to prepare the matter himself. By way of indulgence, we adjourned the matter to 28th February, 2011, on which date, however, to our surprise, the petitioner appeared in person, and told us that he would like to discharge hisand would proceed with the argument himself. Accordingly, we recorded that statement and called upon the petitioner to address us. He, instead, requested the Court to give him time to file Written Submissions and Compilation of Judgments, on the basis of which, the Court may proceed to decide this matter. At his request, therefore, we deferred the hearing to 7th March, 2011. The matter, however, was eventually taken up on 11th March, 2011, when the petitioner unambiguously stated that arguments on behalf of the petitioner has already been completed, and the Court may decide the matter on the basis of his Written Submissions. Thereafter the arguments of the respondents were concluded. We, however, gave time to the respondents to file brief Written Submissions, if any, and also permitted the petitioner to file reply thereto. Accordingly, the respondents as well as the petitioner have filed Written Submissions and Additional Written Submissions respectively. After perusing the same, and as no further oral argument was required or insisted by any party, we have proceeded to pronounce the reserved verdict. We are informed that the petitioner has objected to taking the written submissions of respondent on record as it is not filed within time. However, we reject that objection. | 0 | 10,388 | 2,428 | ### Instruction:
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submission considered by Delhi High Court was that Section 75 of the Act empowers the Central Government to delegate its functions under the Act. The Court held that no such power was delegated under Section 75 of the Act upon NCB. On that finding, the Court held that the argument of NCB that the delegation of those powers under Sections 41, 42, 53 and 67 of the Act was misplaced, inasmuch as the powers under Section 75, which were conferred by the above-mentioned Notification, were totally different from the powers under Sections 41, 42, 53 and 67 of the Act, which were not specifically delegated by the Central Government. On that basis, the Court proceeded to hold that NCB was not the authority, which was empowered to perform functions under Section 41, 42, 53 or 67 of the Act.39. In the present case, the argument, however, is limited to the fact that the detention of the goods was done on high seas by NCB for which reason the entire action is vitiated being without authority of law. We have already adverted to the contents of the complaint as well as the relevant documents, and have held that, as at present, it is not possible to hold, even prima facie, that the search and seizure of the goods in question was done on high seas. Whereas, it appears that the case for the prosecution is that the search and seizure was conducted after the goods had arrived in the dock. If so, NCB was competent to proceed in accordance with law.40. Besides the Delhi High Court judgment, no other judgment in the compilation directly deals with the aspects examined by us hitherto. Hence, we do not wish to burden the judgment by referring to those decisions included in the Compilation of Judgments. We may clarify that the view expressed by us in this decision is only to answer the two questions raised before us, which have been pressed into service for quashing of the complaint qua the petitioner herein. The view expressed in this judgment is, therefore, not an expression of opinion either way of the merits of the allegations. The same will have to be answered on the basis of evidence which will be brought on record during the trial.41. Suffice it to observe that this is not a fit case for quashing of complaint, more so on the ground that the complaint is founded on the action of officials of NCB, which was palpably without authority of law.42. While parting, we may place on record that this Writ Petition was filed as back as in April, 2009, and was being adjourned from time to time since then for reasons recorded in the concerned orders. When the matter appeared before our Bench on 15th September, 2010, for the first time, notice was issued to the opposite party, as the Court felt that formidable point was raised. Thereafter, the matter was ordered to be placed under caption "Final Disposal". Since then, the matter appeared on different dates. On the question, whether the action can proceed against the petitioner, who was only a Professional Director of the Company, was considered on 11th January, 2011 by this Bench. Tentative opinion was indicated during the course of hearing after going through the record. On that day, another question (Point No.2 dealt with in this judgment) was raised. Thereafter, when the matter appeared on 21st February, 2011, it was adjourned to 22nd February, 2011, with direction that the matter be taken up first on Board, as we wanted to conclude the hearing. We had clearly indicated that no request for adjournment on the ground of non-availability of senior counsel will be entertained. After rejecting argument for adjournment, we called upon the instructing advocate to proceed with the argument, as the hearing of the matter was substantially over on the earlier occasion. He did commence the argument, and since the same remained inconclusive, we kept the matter on 22nd February, 2011. When the matter was taken up on that day, the petitioner informed us that as his advocate, who had commenced the argument, had to suddenly go to Delhi, even the said advocate was not available. We found this development to be somewhat unusual. Even then, we accommodated the petitioner, and made it clear that the matter would now proceed on 23rd February, 2011, when he should make necessary arrangement.On 23rd February, 2011, the advocate-on-record himself appeared, and stated that he may be given time till Monday, the 28th February, 2011, to prepare the matter himself. By way of indulgence, we adjourned the matter to 28th February, 2011, on which date, however, to our surprise, the petitioner appeared in person, and told us that he would like to discharge his advocate-on-record, and would proceed with the argument himself. Accordingly, we recorded that statement and called upon the petitioner to address us. He, instead, requested the Court to give him time to file Written Submissions and Compilation of Judgments, on the basis of which, the Court may proceed to decide this matter. At his request, therefore, we deferred the hearing to 7th March, 2011. The matter, however, was eventually taken up on 11th March, 2011, when the petitioner unambiguously stated that arguments on behalf of the petitioner has already been completed, and the Court may decide the matter on the basis of his Written Submissions. Thereafter the arguments of the respondents were concluded. We, however, gave time to the respondents to file brief Written Submissions, if any, and also permitted the petitioner to file reply thereto. Accordingly, the respondents as well as the petitioner have filed Written Submissions and Additional Written Submissions respectively. After perusing the same, and as no further oral argument was required or insisted by any party, we have proceeded to pronounce the reserved verdict. We are informed that the petitioner has objected to taking the written submissions of respondent on record as it is not filed within time. However, we reject that objection.
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which were required to be examined under the NDPS Act, with instructions not to send those containers to Mulund CFS, but retain at Nhava Sheva CFS for detailed examination by the officials of NCB. The fact so stated does not take the matter any further for thedoubt, the action required to be taken in relation to the acts of commission and omission, inviting action under the provisions of the "Customs Act", can be taken only by the officials of the Customs Authority. However, we find force in the argument of the respondents that, having regard to the setting in which the provisions of the NDPS Act operate, the action to be taken in furtherance of the provisions of the NDPS Act is, essentially, that of the Central Government. It is the Central Government, by virtue of Section 4(3) of the NDPS Act, by order, published in the Official Gazette, constitutes an authority or "hierarchy of authorities" by such name or names as may be specified in the order for the purpose of exercising such of the powers and functions of the Central Government under that Act and for taking measures with respect to such matters referred to in(2) of Section 4 and subject to the provisions and control of the Central Government. By virtue of Section 4(1) of the NDPS Act, it is the bounden duty of the Central Government to take all such measures as it deems necessary for the purpose of preventing obtaining and combating abuse of narcotic drugs and psychotropic substances and the illicit traffic therein.On conjoint reading of the aforesaid provisions, there is no manner of doubt that the officials of NCB are competent to enter upon in the area which is primarily under the control of the Customs Authority, but which area would also fall within the area of operation of the officials of NCB within the meaning of NDPS Act, so as to conduct search and seizure at such place. If so, the argument of the petitioner that the action of the officials of NCB is vitiated, being without authority of law, is devoid of merits.Considering those Notifications and the provisions of the NDPS Act of 1985, coupled with the fact that, going by the material presently on record, prima facie, it is not possible to take the view that the power exercised by the officials of NCB, on the basis of which, the complaint has been filed, can be said to have been taken by them outside their territorial jurisdiction, as is sought to contended before us.In the present case, the argument, however, is limited to the fact that the detention of the goods was done on high seas by NCB for which reason the entire action is vitiated being without authority of law. We have already adverted to the contents of the complaint as well as the relevant documents, and have held that, as at present, it is not possible to hold, even prima facie, that the search and seizure of the goods in question was done on high seas. Whereas, it appears that the case for the prosecution is that the search and seizure was conducted after the goods had arrived in the dock. If so, NCB was competent to proceed in accordance withopinion was indicated during the course of hearing after going through the record. On that day, another question (Point No.2 dealt with in this judgment) was raised. Thereafter, when the matter appeared on 21st February, 2011, it was adjourned to 22nd February, 2011, with direction that the matter be taken up first on Board, as we wanted to conclude the hearing. We had clearly indicated that no request for adjournment on the ground ofof senior counsel will be entertained. After rejecting argument for adjournment, we called upon the instructing advocate to proceed with the argument, as the hearing of the matter was substantially over on the earlier occasion. He did commence the argument, and since the same remained inconclusive, we kept the matter on 22nd February, 2011. When the matter was taken up on that day, the petitioner informed us that as his advocate, who had commenced the argument, had to suddenly go to Delhi, even the said advocate was not available. We found this development to be somewhat unusual. Even then, we accommodated the petitioner, and made it clear that the matter would now proceed on 23rd February, 2011, when he should make necessary arrangement.On 23rd February, 2011, thehimself appeared, and stated that he may be given time till Monday, the 28th February, 2011, to prepare the matter himself. By way of indulgence, we adjourned the matter to 28th February, 2011, on which date, however, to our surprise, the petitioner appeared in person, and told us that he would like to discharge hisand would proceed with the argument himself. Accordingly, we recorded that statement and called upon the petitioner to address us. He, instead, requested the Court to give him time to file Written Submissions and Compilation of Judgments, on the basis of which, the Court may proceed to decide this matter. At his request, therefore, we deferred the hearing to 7th March, 2011. The matter, however, was eventually taken up on 11th March, 2011, when the petitioner unambiguously stated that arguments on behalf of the petitioner has already been completed, and the Court may decide the matter on the basis of his Written Submissions. Thereafter the arguments of the respondents were concluded. We, however, gave time to the respondents to file brief Written Submissions, if any, and also permitted the petitioner to file reply thereto. Accordingly, the respondents as well as the petitioner have filed Written Submissions and Additional Written Submissions respectively. After perusing the same, and as no further oral argument was required or insisted by any party, we have proceeded to pronounce the reserved verdict. We are informed that the petitioner has objected to taking the written submissions of respondent on record as it is not filed within time. However, we reject that objection.
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Kewal Krishan S/O Dev Raj Vs. State of Punjab | appellant. On November 25, 1981, Gurcharan Singh gave a written complaint to the ASP under Ex. PH. The ASP directed an investigation of his complaint by the Inspector of Police (PW 11). After the investigation, PW 11 filed the charge-sheet against this PW 1 to PW 12 and on the side of the defence DW 1 and DW 2 were examined. The case of the appellant and the other accused was one of total denial. The trial court even before assessing the evidence recorded a finding in paragraph 4 of its judgment with regard to the case of A 2 to A 4, the relevant portion of which reads thusthere is no evidence incriminating, particularly Gurdev Singh and Inder Singh accused. Against Gurcharan Singh also only very brief reference appears in the evidence and for obvious reasons, he has also to be let off3. After making the observation with regard to A 2 to A 4 as above, the trial court found A 1 guilty and convicted and sentenced him as stated above. The State has not preferred any appeal against acquittal of A 2 to A 4. The convicted appellant (Kewal Krishan) preferred an appeal before the High Court which dismissed the appeal, in our view, in a very summary manner observing as followsThe evidence of this witness looks very natural and truthful. I am of the considered view that the evidence of this witness has statement of his wife Agya Rani (PW 10) who arranged for the money to be paid to the appellant. The recovery of the tube of illicit liquor from the appellant lends further assurance to the prosecution case. The conviction recorded by the learned Special Judge is well merited4. On a thorough examination of the evidence especially of PWs 7 and 10 on which the High Court has rested this finding, we are compelled to disagree with the observation and finding of the High Court for the reasons to be presently stated 5. This case was not registered on any complaint of PW 7 nor any part of the sum [said to have been received by the appellant in the company of the acquitted accused (A 2) from PW] had been recovered. On the other hand, the prosecution claims to have unearthed the offence only on the complaint made by Gurcharan Singh (A 2). It is a case of the prosecution that the offence was committed on November 23, 1981. But the case was registered only on November 26, 1981. PW 12 on receipt of the first information report, took up investigation on November 27, 1981. According to PW 12, he recorded the statement of PWs 7 and 10 only on December 13, 1981 i.e. to say nearly 21 days after the occurrence. But it is surprising to note that PW 7 swears that PW 12 met him on the second or third day of the offence and recorded his statement and thereafter PW 12 did not contact him at all. PW 10 has deposed that the police recorded her statement on the very next day of the occurrence and thereafter she did not meet any police. Thus we find that the evidence of PW 12 on the one hand and the evidence of PW 7 and PW 10 on the other hand is irreconcilably in conflict even with reference to the dates of examination of PWs 7 and 10. If the evidence of PW 7 and PW 10 is to be accepted with regard to the dates of their examination, we have to hold that even earlier to the registration of the case, these two witnesses were contacted by the police and not afterwards. It is brought out in the cross-examination that the evidence of PW 7 in court is not in conformity with the version of his statement (Ex. DA) recorded during the investigation and quite a number of material omissions and contradictions are brought out. PW 7 has gone even to the extent of shielding Gurcharan Singh (acquitted A 2) stating that Gurcharan Singh did not accompany the appellant to his house which part of the evidence is opposed to the prosecution case. Though this witness states that he did not trade in liquor, in the next breath states that he does remember whether he was involved in 20 to 25 excise cases. Then he admits that 10 to 12 excise cases were on trial against him. As per the prosecution, PW 7 was a bootlegger. It is brought out from this witness that he had not told the Investigation Officer that his wife raised an amount of Rs. 1200 by pawning her ornaments. When the witness was asked to explain the omissions found in his statement Ex. DA, he would unhesitatingly reply, "I cannot explain these omissions". From PW 10 it is elicited that she during the investigation stated to the police that her husband with appellant came to her house even at 8 p.m. while the case of the prosecution is that the appellant came to the house of PW 10 only at about 10.30 p.m. or 11 p.m. DW 1 who was then the writer in the police station (MHC) states that the appellant was at the station at 10.05 p.m. If it is so, as rightly pointed out by the learned defence counsel, the appellant could not have accompanied PW 7 at 10.30 or 11 p.m. to his house to get the illegal gratification. Thus a scrutiny of the evidence of PWs 7 and 10 reveals that their version is nothing but a conglomeration of contradictions. In our view their evidence is unworthy of any credence. Further the observation of the High Court that the recovery of the illicit liquor from the room of the appellant lends assurance to the prosecution case is not acceptable because according to PW 4 (the Assistance Sub-Inspector of Police) both the appellant and Gurcharan Singh was under the influence of intoxication at the time when he came to the police station | 1[ds]It is brought out from this witness that he had not told the Investigation Officer that his wife raised an amount of Rs. 1200 by pawning her ornaments. When the witness was asked to explain the omissions found in his statement Ex. DA, he would unhesitatingly reply, "I cannot explain these omissions". From PW 10 it is elicited that she during the investigation stated to the police that her husband with appellant came to her house even at 8 p.m. while the case of the prosecution is that the appellant came to the house of PW 10 only at about 10.30 p.m. or 11 p.m. DW 1 who was then the writer in the police station (MHC) states that the appellant was at the station at 10.05 p.m. If it is so, as rightly pointed out by the learned defence counsel, the appellant could not have accompanied PW 7 at 10.30 or 11 p.m. to his house to get the illegal gratification. Thus a scrutiny of the evidence of PWs 7 and 10 reveals that their version is nothing but a conglomeration of contradictions. In our view their evidence is unworthy of any credence. Further the observation of the High Court that the recovery of the illicit liquor from the room of the appellant lends assurance to the prosecution case is not acceptable because according to PW 4 (the Assistanceof Police) both the appellant and Gurcharan Singh was under the influence of intoxication at the time when he came to the police station | 1 | 1,578 | 276 | ### 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:
appellant. On November 25, 1981, Gurcharan Singh gave a written complaint to the ASP under Ex. PH. The ASP directed an investigation of his complaint by the Inspector of Police (PW 11). After the investigation, PW 11 filed the charge-sheet against this PW 1 to PW 12 and on the side of the defence DW 1 and DW 2 were examined. The case of the appellant and the other accused was one of total denial. The trial court even before assessing the evidence recorded a finding in paragraph 4 of its judgment with regard to the case of A 2 to A 4, the relevant portion of which reads thusthere is no evidence incriminating, particularly Gurdev Singh and Inder Singh accused. Against Gurcharan Singh also only very brief reference appears in the evidence and for obvious reasons, he has also to be let off3. After making the observation with regard to A 2 to A 4 as above, the trial court found A 1 guilty and convicted and sentenced him as stated above. The State has not preferred any appeal against acquittal of A 2 to A 4. The convicted appellant (Kewal Krishan) preferred an appeal before the High Court which dismissed the appeal, in our view, in a very summary manner observing as followsThe evidence of this witness looks very natural and truthful. I am of the considered view that the evidence of this witness has statement of his wife Agya Rani (PW 10) who arranged for the money to be paid to the appellant. The recovery of the tube of illicit liquor from the appellant lends further assurance to the prosecution case. The conviction recorded by the learned Special Judge is well merited4. On a thorough examination of the evidence especially of PWs 7 and 10 on which the High Court has rested this finding, we are compelled to disagree with the observation and finding of the High Court for the reasons to be presently stated 5. This case was not registered on any complaint of PW 7 nor any part of the sum [said to have been received by the appellant in the company of the acquitted accused (A 2) from PW] had been recovered. On the other hand, the prosecution claims to have unearthed the offence only on the complaint made by Gurcharan Singh (A 2). It is a case of the prosecution that the offence was committed on November 23, 1981. But the case was registered only on November 26, 1981. PW 12 on receipt of the first information report, took up investigation on November 27, 1981. According to PW 12, he recorded the statement of PWs 7 and 10 only on December 13, 1981 i.e. to say nearly 21 days after the occurrence. But it is surprising to note that PW 7 swears that PW 12 met him on the second or third day of the offence and recorded his statement and thereafter PW 12 did not contact him at all. PW 10 has deposed that the police recorded her statement on the very next day of the occurrence and thereafter she did not meet any police. Thus we find that the evidence of PW 12 on the one hand and the evidence of PW 7 and PW 10 on the other hand is irreconcilably in conflict even with reference to the dates of examination of PWs 7 and 10. If the evidence of PW 7 and PW 10 is to be accepted with regard to the dates of their examination, we have to hold that even earlier to the registration of the case, these two witnesses were contacted by the police and not afterwards. It is brought out in the cross-examination that the evidence of PW 7 in court is not in conformity with the version of his statement (Ex. DA) recorded during the investigation and quite a number of material omissions and contradictions are brought out. PW 7 has gone even to the extent of shielding Gurcharan Singh (acquitted A 2) stating that Gurcharan Singh did not accompany the appellant to his house which part of the evidence is opposed to the prosecution case. Though this witness states that he did not trade in liquor, in the next breath states that he does remember whether he was involved in 20 to 25 excise cases. Then he admits that 10 to 12 excise cases were on trial against him. As per the prosecution, PW 7 was a bootlegger. It is brought out from this witness that he had not told the Investigation Officer that his wife raised an amount of Rs. 1200 by pawning her ornaments. When the witness was asked to explain the omissions found in his statement Ex. DA, he would unhesitatingly reply, "I cannot explain these omissions". From PW 10 it is elicited that she during the investigation stated to the police that her husband with appellant came to her house even at 8 p.m. while the case of the prosecution is that the appellant came to the house of PW 10 only at about 10.30 p.m. or 11 p.m. DW 1 who was then the writer in the police station (MHC) states that the appellant was at the station at 10.05 p.m. If it is so, as rightly pointed out by the learned defence counsel, the appellant could not have accompanied PW 7 at 10.30 or 11 p.m. to his house to get the illegal gratification. Thus a scrutiny of the evidence of PWs 7 and 10 reveals that their version is nothing but a conglomeration of contradictions. In our view their evidence is unworthy of any credence. Further the observation of the High Court that the recovery of the illicit liquor from the room of the appellant lends assurance to the prosecution case is not acceptable because according to PW 4 (the Assistance Sub-Inspector of Police) both the appellant and Gurcharan Singh was under the influence of intoxication at the time when he came to the police station
### Response:
1
### Explanation:
It is brought out from this witness that he had not told the Investigation Officer that his wife raised an amount of Rs. 1200 by pawning her ornaments. When the witness was asked to explain the omissions found in his statement Ex. DA, he would unhesitatingly reply, "I cannot explain these omissions". From PW 10 it is elicited that she during the investigation stated to the police that her husband with appellant came to her house even at 8 p.m. while the case of the prosecution is that the appellant came to the house of PW 10 only at about 10.30 p.m. or 11 p.m. DW 1 who was then the writer in the police station (MHC) states that the appellant was at the station at 10.05 p.m. If it is so, as rightly pointed out by the learned defence counsel, the appellant could not have accompanied PW 7 at 10.30 or 11 p.m. to his house to get the illegal gratification. Thus a scrutiny of the evidence of PWs 7 and 10 reveals that their version is nothing but a conglomeration of contradictions. In our view their evidence is unworthy of any credence. Further the observation of the High Court that the recovery of the illicit liquor from the room of the appellant lends assurance to the prosecution case is not acceptable because according to PW 4 (the Assistanceof Police) both the appellant and Gurcharan Singh was under the influence of intoxication at the time when he came to the police station
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Gulbarga University Vs. Mallikarjun S. Kodagali | of limitation prescribed in the Schedule under Section 3 of the Limitation Act, 1963. Thus, the provision of moving the application prescribed in the Limitation Act, shall stand excluded by virtue of sub-section (2) of Section 29 as under this special enactment the period of limitation has already been prescribed. Likewise the period of condonation of delay i.e. 30 days by virtue of the proviso. 17. Therefore, by virtue of sub-section (2) of Section 29 of the Limitation Act what is excluded is the applicability of Section 5 of the Limitation Act and under Section 3 read with the Schedule which prescribes the period for moving application. 18. Whenever two enactments are overlapping each other on the same area then the courts should be cautious in interpreting those provisions. It should not exceed the limit provided by the statute. The extent of exclusion is, however, really a question of construction of each particular statute and general principles applicable are subordinate to the actual words used by legislature. 10. Referring to Popular Construction (supra) and National Aluminimum Co. Ltd. v. Pressteel & Fabrications (P) Ltd. [(2004 (1) SCC 540] , it was held: 25. Therefore, in the present context also it is very clear to us that there are no two opinions in the matter that the Arbitration and Conciliation Act, 1996 does not expressly exclude the applicability of Section 14 of the Limitation Act. The prohibitory provision has to be construed strictly. It is true that the Arbitration and Conciliation Act, 1996 intended to expedite commercial issues expeditiously. It is also clear in the Statement of Objects and Reasons that in order to recognise economic reforms the settlement of both domestic and international commercial disputes should be disposed of quickly so that the countrys economic progress be expedited. The Statement of Objects and Reasons also nowhere indicates that Section 14 of the Limitation Act shall be excluded. But on the contrary, intendment of the legislature is apparent in the present case as Section 43 of the Arbitration and Conciliation Act, 1996 applies the Limitation Act, 1963 as a whole. It is only by virtue of sub-section (2) of Section 29 of the Limitation Act that its operation is excluded to that extent of the area which is covered under the Arbitration and Conciliation Act, 1996. Our attention was also invited to the various decisions of this Court interpreting sub-section (2) of Section 29 of the Limitation Act with reference to other Acts like the Representation of the People Act or the provisions of the Criminal Procedure Code where separate period of limitation has been prescribed. We need not overburden the judgment with reference to those cases because it is very clear to us by virtue of sub-section (2) of Section 29 of the Limitation Act that the provisions of the Limitation Act shall stand excluded in the Act of 1996 to the extent of area which is covered by the Act of 1996. In the present case under Section 34 by virtue of sub-section (3) only the application for filing and setting aside the award a period has been prescribed as 3 months and delay can be condoned to the extent of 30 days. To this extent the applicability of Section 5 of the Limitation Act will stand excluded but there is no provision in the Act of 1996, which excludes operation of Section 14 of the Limitation Act. If two Acts can be read harmoniously without doing violation to the words used therein, then there is no prohibition in doing so. 11. The ratio laid down in the said decision has since been reiterated in Union of India & Anr. v. Bhavna Engineering Co. [2007 (5) RAJ 458], stating: This Court in a recent judgment rendered in State of Goa Vs. Western Builders, (2006) 6 SCC 239 , held that Section 14 of the Limitation Act, 1963 is applicable in the Arbitration and Conciliation proceedings. Having gone through the various facts, we are of the view that the mistake committed by the appellant in approaching the Madhya Pradesh High Court and the Bombay High Court is bona fide. We, therefore, condone the delay. In the facts of this case and in the interest of justice, we, however, think it proper that the Section 34 Application pending before the Additional District Judge, Gwalior be transferred to the Bombay High Court. The application will be decided on merits expeditiously. Parties are at liberty to urge all the contentions before that Court. 12. There cannot be any doubt whatsoever that in terms of sub-section (2) of Section 34 of the Act, an arbitral award may be set aside only if one of the conditions specified therein is satisfied. Sub-section (3) of Section 34 provides for the period of limitation within which an application under Section 34 of the Act is to be filed. The proviso appended thereto empowers the court to entertain an application despite expiry of the period of limitation specified therein, namely, three months. No provision, however, exists as regards application of Section 14 of the Limitation Act. This Court, as noticed hereinbefore in Western Builders opined that sub-section (2) of Section 29 thereof would apply to an arbitration proceedings and consequently Section 14 of the Limitation Act would also be applicable. We are bound by the said decision. Once it is held that the provisions of Section 14 of the Limitation Act, 1963 would apply, it must be held that the learned Trial Judge as also the High Court has committed an error in not applying the said provisions. 13. The question, however, as to whether the period spent by the appellant in prosecuting the aforementioned proceedings should be excluded or not is a matter which must fall for decision before the Principal Civil Court. The necessary corollary of the aforementioned finding is that as to whether the appellant had been prosecuting, with due diligence another proceeding or not would fall for consideration before the Principal Civil Court. 14. | 1[ds]16. Once clause 30 is constituted to be a valid arbitration agreement, it would necessarily follow that the decision of the arbitrator named therein would be rendered only upon allowing the parties to adduce evidence in support of their respective claims and counter-claims as also upon hearing the parties to the dispute. For the purpose of constituting the valid arbitration agreement, it is not necessary that the conditions as regards adduction of evidence by the parties or giving an opportunity of hearing to them must specifically be mentioned therein. Such conditions, it is trite, are implicit in the decision-making process in the arbitration proceedings. Compliance with the principles of natural justice inheres in an arbitration process. They, irrespective of the fact as to whether recorded specifically in the arbitration agreement or not are required to be followed. Once the principles of natural justice are not complied with, the award made by the arbitrator would be rendered invalid. We, therefore, are of the opinion that the arbitration clause does not necessitate spelling out of a duty on the part of the arbitrator to hear both parties before deciding the question before him. The expression decision subsumes adjudication of the dispute. Here in the instant case, it will bear repetition to state, that the disputes between the parties arose out of a contract and in relation to matters specified therein and, thus, were required to be decided and such decisions are not only final and binding on the parties, but they are conclusive which clearly spells out the finality of such decisions as also their binding nature17. A clause which is inserted in a contract agreement for the purpose of prevention of dispute will not be an arbitration agreement. Such a provision has been made in the agreement itself by conferring power upon the Engineer-in-Charge to take a decision thereupon in relation to the matters envisaged under clauses 31 and 32 of the said agreement. Clauses 31 and 32 of the said agreement provide for a decision of the Engineer-in-Charge in relation to the matters specified therein. The jurisdiction of the Engineer-in-Charge in relation to such matters are limited and they cannot be equated with an arbitration agreement. Despite such clauses meant for prevention of dispute arising out of a contract, significantly, clause 30 has been inserted in the contract agreement by the parties18. The very fact that clause 30 has been inserted by the parties despite the clauses for prevention of dispute is itself a pointer to the fact that the parties to the contract were ad idem that the dispute and differences arising out of or under the contract should be determined by a domestic tribunal chosen by them18. Whenever two enactments are overlapping each other on the same area then the courts should be cautious in interpreting those provisions. It should not exceed the limit provided by the statute. The extent of exclusion is, however, really a question of construction of each particular statute and general principles applicable are subordinate to the actual words used by legislatureReferring to Popular Construction (supra) and National Aluminimum Co. Ltd. v. Pressteel & Fabrications (P) Ltd. [(2004 (1) SCC 540] , it was held:25. Therefore, in the present context also it is very clear to us that there are no two opinions in the matter that the Arbitration and Conciliation Act, 1996 does not expressly exclude the applicability of Section 14 of the Limitation Act. The prohibitory provision has to be construed strictly. It is true that the Arbitration and Conciliation Act, 1996 intended to expedite commercial issues expeditiously. It is also clear in the Statement of Objects and Reasons that in order to recognise economic reforms the settlement of both domestic and international commercial disputes should be disposed of quickly so that the countrys economic progress be expedited. The Statement of Objects and Reasons also nowhere indicates that Section 14 of the Limitation Act shall be excluded. But on the contrary, intendment of the legislature is apparent in the present case as Section 43 of the Arbitration and Conciliation Act, 1996 applies the Limitation Act, 1963 as a whole. It is only by virtue of sub-section (2) of Section 29 of the Limitation Act that its operation is excluded to that extent of the area which is covered under the Arbitration and Conciliation Act, 1996. Our attention was also invited to the various decisions of this Court interpreting sub-section (2) of Section 29 of the Limitation Act with reference to other Acts like the Representation of the People Act or the provisions of the Criminal Procedure Code where separate period of limitation has been prescribed. We need not overburden the judgment with reference to those cases because it is very clear to us by virtue of sub-section (2) of Section 29 of the Limitation Act that the provisions of the Limitation Act shall stand excluded in the Act of 1996 to the extent of area which is covered by the Act of 1996. In the present case under Section 34 by virtue of sub-section (3) only the application for filing and setting aside the award a period has been prescribed as 3 months and delay can be condoned to the extent of 30 days. To this extent the applicability of Section 5 of the Limitation Act will stand excluded but there is no provision in the Act of 1996, which excludes operation of Section 14 of the Limitation Act. If two Acts can be read harmoniously without doing violation to the words used therein, then there is no prohibition in doing soThe ratio laid down in the said decision has since been reiterated in Union of India & Anr. v. Bhavna Engineering Co. [2007 (5) RAJ 458], stating:This Court in a recent judgment rendered in State of Goa Vs. Western Builders, (2006) 6 SCC 239 , held that Section 14 of the Limitation Act, 1963 is applicable in the Arbitration and Conciliation proceedings. Having gone through the various facts, we are of the view that the mistake committed by the appellant in approaching the Madhya Pradesh High Court and the Bombay High Court is bona fide. We, therefore, condone the delay. In the facts of this case and in the interest of justice, we, however, think it proper that the Section 34 Application pending before the Additional District Judge, Gwalior be transferred to the Bombay High Court. The application will be decided on merits expeditiously. Parties are at liberty to urge all the contentions before that Court | 1 | 3,047 | 1,187 | ### 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:
of limitation prescribed in the Schedule under Section 3 of the Limitation Act, 1963. Thus, the provision of moving the application prescribed in the Limitation Act, shall stand excluded by virtue of sub-section (2) of Section 29 as under this special enactment the period of limitation has already been prescribed. Likewise the period of condonation of delay i.e. 30 days by virtue of the proviso. 17. Therefore, by virtue of sub-section (2) of Section 29 of the Limitation Act what is excluded is the applicability of Section 5 of the Limitation Act and under Section 3 read with the Schedule which prescribes the period for moving application. 18. Whenever two enactments are overlapping each other on the same area then the courts should be cautious in interpreting those provisions. It should not exceed the limit provided by the statute. The extent of exclusion is, however, really a question of construction of each particular statute and general principles applicable are subordinate to the actual words used by legislature. 10. Referring to Popular Construction (supra) and National Aluminimum Co. Ltd. v. Pressteel & Fabrications (P) Ltd. [(2004 (1) SCC 540] , it was held: 25. Therefore, in the present context also it is very clear to us that there are no two opinions in the matter that the Arbitration and Conciliation Act, 1996 does not expressly exclude the applicability of Section 14 of the Limitation Act. The prohibitory provision has to be construed strictly. It is true that the Arbitration and Conciliation Act, 1996 intended to expedite commercial issues expeditiously. It is also clear in the Statement of Objects and Reasons that in order to recognise economic reforms the settlement of both domestic and international commercial disputes should be disposed of quickly so that the countrys economic progress be expedited. The Statement of Objects and Reasons also nowhere indicates that Section 14 of the Limitation Act shall be excluded. But on the contrary, intendment of the legislature is apparent in the present case as Section 43 of the Arbitration and Conciliation Act, 1996 applies the Limitation Act, 1963 as a whole. It is only by virtue of sub-section (2) of Section 29 of the Limitation Act that its operation is excluded to that extent of the area which is covered under the Arbitration and Conciliation Act, 1996. Our attention was also invited to the various decisions of this Court interpreting sub-section (2) of Section 29 of the Limitation Act with reference to other Acts like the Representation of the People Act or the provisions of the Criminal Procedure Code where separate period of limitation has been prescribed. We need not overburden the judgment with reference to those cases because it is very clear to us by virtue of sub-section (2) of Section 29 of the Limitation Act that the provisions of the Limitation Act shall stand excluded in the Act of 1996 to the extent of area which is covered by the Act of 1996. In the present case under Section 34 by virtue of sub-section (3) only the application for filing and setting aside the award a period has been prescribed as 3 months and delay can be condoned to the extent of 30 days. To this extent the applicability of Section 5 of the Limitation Act will stand excluded but there is no provision in the Act of 1996, which excludes operation of Section 14 of the Limitation Act. If two Acts can be read harmoniously without doing violation to the words used therein, then there is no prohibition in doing so. 11. The ratio laid down in the said decision has since been reiterated in Union of India & Anr. v. Bhavna Engineering Co. [2007 (5) RAJ 458], stating: This Court in a recent judgment rendered in State of Goa Vs. Western Builders, (2006) 6 SCC 239 , held that Section 14 of the Limitation Act, 1963 is applicable in the Arbitration and Conciliation proceedings. Having gone through the various facts, we are of the view that the mistake committed by the appellant in approaching the Madhya Pradesh High Court and the Bombay High Court is bona fide. We, therefore, condone the delay. In the facts of this case and in the interest of justice, we, however, think it proper that the Section 34 Application pending before the Additional District Judge, Gwalior be transferred to the Bombay High Court. The application will be decided on merits expeditiously. Parties are at liberty to urge all the contentions before that Court. 12. There cannot be any doubt whatsoever that in terms of sub-section (2) of Section 34 of the Act, an arbitral award may be set aside only if one of the conditions specified therein is satisfied. Sub-section (3) of Section 34 provides for the period of limitation within which an application under Section 34 of the Act is to be filed. The proviso appended thereto empowers the court to entertain an application despite expiry of the period of limitation specified therein, namely, three months. No provision, however, exists as regards application of Section 14 of the Limitation Act. This Court, as noticed hereinbefore in Western Builders opined that sub-section (2) of Section 29 thereof would apply to an arbitration proceedings and consequently Section 14 of the Limitation Act would also be applicable. We are bound by the said decision. Once it is held that the provisions of Section 14 of the Limitation Act, 1963 would apply, it must be held that the learned Trial Judge as also the High Court has committed an error in not applying the said provisions. 13. The question, however, as to whether the period spent by the appellant in prosecuting the aforementioned proceedings should be excluded or not is a matter which must fall for decision before the Principal Civil Court. The necessary corollary of the aforementioned finding is that as to whether the appellant had been prosecuting, with due diligence another proceeding or not would fall for consideration before the Principal Civil Court. 14.
### Response:
1
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specifically be mentioned therein. Such conditions, it is trite, are implicit in the decision-making process in the arbitration proceedings. Compliance with the principles of natural justice inheres in an arbitration process. They, irrespective of the fact as to whether recorded specifically in the arbitration agreement or not are required to be followed. Once the principles of natural justice are not complied with, the award made by the arbitrator would be rendered invalid. We, therefore, are of the opinion that the arbitration clause does not necessitate spelling out of a duty on the part of the arbitrator to hear both parties before deciding the question before him. The expression decision subsumes adjudication of the dispute. Here in the instant case, it will bear repetition to state, that the disputes between the parties arose out of a contract and in relation to matters specified therein and, thus, were required to be decided and such decisions are not only final and binding on the parties, but they are conclusive which clearly spells out the finality of such decisions as also their binding nature17. A clause which is inserted in a contract agreement for the purpose of prevention of dispute will not be an arbitration agreement. Such a provision has been made in the agreement itself by conferring power upon the Engineer-in-Charge to take a decision thereupon in relation to the matters envisaged under clauses 31 and 32 of the said agreement. Clauses 31 and 32 of the said agreement provide for a decision of the Engineer-in-Charge in relation to the matters specified therein. The jurisdiction of the Engineer-in-Charge in relation to such matters are limited and they cannot be equated with an arbitration agreement. Despite such clauses meant for prevention of dispute arising out of a contract, significantly, clause 30 has been inserted in the contract agreement by the parties18. The very fact that clause 30 has been inserted by the parties despite the clauses for prevention of dispute is itself a pointer to the fact that the parties to the contract were ad idem that the dispute and differences arising out of or under the contract should be determined by a domestic tribunal chosen by them18. Whenever two enactments are overlapping each other on the same area then the courts should be cautious in interpreting those provisions. It should not exceed the limit provided by the statute. The extent of exclusion is, however, really a question of construction of each particular statute and general principles applicable are subordinate to the actual words used by legislatureReferring to Popular Construction (supra) and National Aluminimum Co. Ltd. v. Pressteel & Fabrications (P) Ltd. [(2004 (1) SCC 540] , it was held:25. Therefore, in the present context also it is very clear to us that there are no two opinions in the matter that the Arbitration and Conciliation Act, 1996 does not expressly exclude the applicability of Section 14 of the Limitation Act. The prohibitory provision has to be construed strictly. It is true that the Arbitration and Conciliation Act, 1996 intended to expedite commercial issues expeditiously. It is also clear in the Statement of Objects and Reasons that in order to recognise economic reforms the settlement of both domestic and international commercial disputes should be disposed of quickly so that the countrys economic progress be expedited. The Statement of Objects and Reasons also nowhere indicates that Section 14 of the Limitation Act shall be excluded. But on the contrary, intendment of the legislature is apparent in the present case as Section 43 of the Arbitration and Conciliation Act, 1996 applies the Limitation Act, 1963 as a whole. It is only by virtue of sub-section (2) of Section 29 of the Limitation Act that its operation is excluded to that extent of the area which is covered under the Arbitration and Conciliation Act, 1996. Our attention was also invited to the various decisions of this Court interpreting sub-section (2) of Section 29 of the Limitation Act with reference to other Acts like the Representation of the People Act or the provisions of the Criminal Procedure Code where separate period of limitation has been prescribed. We need not overburden the judgment with reference to those cases because it is very clear to us by virtue of sub-section (2) of Section 29 of the Limitation Act that the provisions of the Limitation Act shall stand excluded in the Act of 1996 to the extent of area which is covered by the Act of 1996. In the present case under Section 34 by virtue of sub-section (3) only the application for filing and setting aside the award a period has been prescribed as 3 months and delay can be condoned to the extent of 30 days. To this extent the applicability of Section 5 of the Limitation Act will stand excluded but there is no provision in the Act of 1996, which excludes operation of Section 14 of the Limitation Act. If two Acts can be read harmoniously without doing violation to the words used therein, then there is no prohibition in doing soThe ratio laid down in the said decision has since been reiterated in Union of India & Anr. v. Bhavna Engineering Co. [2007 (5) RAJ 458], stating:This Court in a recent judgment rendered in State of Goa Vs. Western Builders, (2006) 6 SCC 239 , held that Section 14 of the Limitation Act, 1963 is applicable in the Arbitration and Conciliation proceedings. Having gone through the various facts, we are of the view that the mistake committed by the appellant in approaching the Madhya Pradesh High Court and the Bombay High Court is bona fide. We, therefore, condone the delay. In the facts of this case and in the interest of justice, we, however, think it proper that the Section 34 Application pending before the Additional District Judge, Gwalior be transferred to the Bombay High Court. The application will be decided on merits expeditiously. Parties are at liberty to urge all the contentions before that Court
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Gill and Company Private Limited Vs. Commercial Tax Officer, Hyderabad Iii, and Another | year 1962-63. It is alleged that the discovery was made through the help of its attorneys who had pointed out to the appellant that the levy of tax under the Central Act was illegal in view of the decision of this Court in The State of Mysore v. Yaddalam Lakshminarasimhiah Setty and Sons ([1965] 2 S.C.R. 129; 16 S.T.C. 231). This discovery is alleged to have been made in January, 1967. The appellant further claims to have called upon the respondents to cancel the orders of assessment and refund the amount of the taxes which had been recovered illegally but the respondents failed and neglected to do so.The High Court of Andhra Pradesh dismissed the writ petitions when they came up for admission, mainly on the ground that the petitions for the grant of the extraordinary remedy could not be admitted after the lapse of a long period. The High Court was also of the view that the question of time when the mistake was discovered was a question of fact which had to be enquired into and as the appellant had a remedy open to it by way of a suit in a court of law, which was a more convenient and effective remedy the same should be pursued by it. A group of civil miscellaneous petitions numbering 129 to 136 of 1967 presented before the High Court for grant of leave to appeal to this Court was rejected on the ground that the cases were not fit for the exercise of the discretion of the High Court "having regard to the fact that the orders became final nearly 5 to 6 years earlier." 2. In our opinion, the High Court was not justified in disposing of the writ petitions in the above manner. Of course the High Court had a discretion under Article 226 of the Constitution to refuse to admit the petitions if it thought that they were frivolous or that they had been presented after the lapse of a period for which there was no justification. It had however to examine the question as to whether the appellant had paid the taxes under a mistake of law as also when the appellant came to discover its mistake. The taxing authorities could not very well be asked to quash the assessment orders already made by them. It is now well settled by this Court in The State of Kerala v. Aluminium Industries ([1965] 16 S.T.C. 689) that: "In such a case where tax is levied by mistake of law it is ordinarily the duty of the State subject to any provision in the law relating to sales tax .... to refund the tax. If refund is not made, remedy through court is open subject to the same restrictions and also to the period of limitation (see Article 96 of the Limitation Act, 1908), namely, three years from the date when the mistake had become known to the person who has made the payment by mistake (see State of Madhya Pradesh v. Bhailal Bhai ([1964] 15 S.T.C. 450)."The Court further pointed out that it was the duty of the State to investigate the facts when the mistake was brought to its notice and to make a refund if mistake was proved and the claim was made within the period of limitation. 3.In State of Madhya Pradesh v. Bhailal Bhai ([1964] 15 S.T.C. 450), this Court held that "the High Courts have power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law." It was further pointed out in that case that the High Courts had to take into consideration in the exercise of that discretion the delay, if any, made by the aggrieved party in seeking this special remedy and also the nature of controversy of facts or law to be decided as regards the availability of consequential relief. It was observed that "Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances .... It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the court should ordinarily refuse to issue the writ of mandamus for such payment." 4. The High Court did not examine the merits of the case at all as it could not before admitting the petitions and hearing the Sales Tax Authorities against the cases urged in the writ petitions. Whether the case of the appellant was true, namely, that it discovered the mistake only in January, 1967, and that the assessments were illegal were all matters which the High Court had to examine after affidavits had been filed. It was open to the High Court to give a hearing to the parties on these questions and then come to its conclusion as to whether it would not use its discretion under Article 226 of the Constitution. But the petitions could not be rejected summarily as was done by the High Court in these cases.Eight of the appeals arise out of the rejection of the writ petitions and eight others out of refusal to grant special leave to appeal to this Court. We allow the appeals against the orders rejecting the writ petitions and direct the High Court to admit the writ petitions and hear the matters out in the normal way. Since we have granted special leave against the orders rejecting the writ petitions, it is not necessary to consider whether the High Court erred in refusing to certify the appeals under Article 133. | 1[ds]2. In our opinion, the High Court was not justified in disposing of the writ petitions in the above manner. Of course the High Court had a discretion under Article 226 of the Constitution to refuse to admit the petitions if it thought that they were frivolous or that they had been presented after the lapse of a period for which there was no justification. It had however to examine the question as to whether the appellant had paid the taxes under a mistake of law as also when the appellant came to discover its mistake. The taxing authorities could not very well be asked to quash the assessment orders already made by them4. The High Court did not examine the merits of the case at all as it could not before admitting the petitions and hearing the Sales Tax Authorities against the cases urged in the writ petitions. Whether the case of the appellant was true, namely, that it discovered the mistake only in January, 1967, and that the assessments were illegal were all matters which the High Court had to examine after affidavits had been filed. It was open to the High Court to give a hearing to the parties on these questions and then come to its conclusion as to whether it would not use its discretion under Article 226 of the Constitution. But the petitions could not be rejected summarily as was done by the High Court in these cases.Eight of the appeals arise out of the rejection of the writ petitions and eight others out of refusal to grant special leave to appeal to this Court. We allow the appeals against the orders rejecting the writ petitions and direct the High Court to admit the writ petitions and hear the matters out in the normal way. Since we have granted special leave against the orders rejecting the writ petitions, it is not necessary to consider whether the High Court erred in refusing to certify the appeals under Article 133. | 1 | 1,467 | 355 | ### 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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year 1962-63. It is alleged that the discovery was made through the help of its attorneys who had pointed out to the appellant that the levy of tax under the Central Act was illegal in view of the decision of this Court in The State of Mysore v. Yaddalam Lakshminarasimhiah Setty and Sons ([1965] 2 S.C.R. 129; 16 S.T.C. 231). This discovery is alleged to have been made in January, 1967. The appellant further claims to have called upon the respondents to cancel the orders of assessment and refund the amount of the taxes which had been recovered illegally but the respondents failed and neglected to do so.The High Court of Andhra Pradesh dismissed the writ petitions when they came up for admission, mainly on the ground that the petitions for the grant of the extraordinary remedy could not be admitted after the lapse of a long period. The High Court was also of the view that the question of time when the mistake was discovered was a question of fact which had to be enquired into and as the appellant had a remedy open to it by way of a suit in a court of law, which was a more convenient and effective remedy the same should be pursued by it. A group of civil miscellaneous petitions numbering 129 to 136 of 1967 presented before the High Court for grant of leave to appeal to this Court was rejected on the ground that the cases were not fit for the exercise of the discretion of the High Court "having regard to the fact that the orders became final nearly 5 to 6 years earlier." 2. In our opinion, the High Court was not justified in disposing of the writ petitions in the above manner. Of course the High Court had a discretion under Article 226 of the Constitution to refuse to admit the petitions if it thought that they were frivolous or that they had been presented after the lapse of a period for which there was no justification. It had however to examine the question as to whether the appellant had paid the taxes under a mistake of law as also when the appellant came to discover its mistake. The taxing authorities could not very well be asked to quash the assessment orders already made by them. It is now well settled by this Court in The State of Kerala v. Aluminium Industries ([1965] 16 S.T.C. 689) that: "In such a case where tax is levied by mistake of law it is ordinarily the duty of the State subject to any provision in the law relating to sales tax .... to refund the tax. If refund is not made, remedy through court is open subject to the same restrictions and also to the period of limitation (see Article 96 of the Limitation Act, 1908), namely, three years from the date when the mistake had become known to the person who has made the payment by mistake (see State of Madhya Pradesh v. Bhailal Bhai ([1964] 15 S.T.C. 450)."The Court further pointed out that it was the duty of the State to investigate the facts when the mistake was brought to its notice and to make a refund if mistake was proved and the claim was made within the period of limitation. 3.In State of Madhya Pradesh v. Bhailal Bhai ([1964] 15 S.T.C. 450), this Court held that "the High Courts have power for the purpose of enforcement of fundamental rights and statutory rights to give consequential relief by ordering repayment of money realised by the Government without the authority of law." It was further pointed out in that case that the High Courts had to take into consideration in the exercise of that discretion the delay, if any, made by the aggrieved party in seeking this special remedy and also the nature of controversy of facts or law to be decided as regards the availability of consequential relief. It was observed that "Whether repayment should be ordered in the exercise of this discretion will depend in each case on its own facts and circumstances .... It may however be stated as a general rule that if there has been unreasonable delay the court ought not ordinarily to lend its aid to a party by this extraordinary remedy of mandamus. Again, where even if there is no such delay the Government or the statutory authority against whom the consequential relief is prayed for raises a prima facie triable issue as regards the availability of such relief on the merits on the grounds like limitation the court should ordinarily refuse to issue the writ of mandamus for such payment." 4. The High Court did not examine the merits of the case at all as it could not before admitting the petitions and hearing the Sales Tax Authorities against the cases urged in the writ petitions. Whether the case of the appellant was true, namely, that it discovered the mistake only in January, 1967, and that the assessments were illegal were all matters which the High Court had to examine after affidavits had been filed. It was open to the High Court to give a hearing to the parties on these questions and then come to its conclusion as to whether it would not use its discretion under Article 226 of the Constitution. But the petitions could not be rejected summarily as was done by the High Court in these cases.Eight of the appeals arise out of the rejection of the writ petitions and eight others out of refusal to grant special leave to appeal to this Court. We allow the appeals against the orders rejecting the writ petitions and direct the High Court to admit the writ petitions and hear the matters out in the normal way. Since we have granted special leave against the orders rejecting the writ petitions, it is not necessary to consider whether the High Court erred in refusing to certify the appeals under Article 133.
### Response:
1
### Explanation:
2. In our opinion, the High Court was not justified in disposing of the writ petitions in the above manner. Of course the High Court had a discretion under Article 226 of the Constitution to refuse to admit the petitions if it thought that they were frivolous or that they had been presented after the lapse of a period for which there was no justification. It had however to examine the question as to whether the appellant had paid the taxes under a mistake of law as also when the appellant came to discover its mistake. The taxing authorities could not very well be asked to quash the assessment orders already made by them4. The High Court did not examine the merits of the case at all as it could not before admitting the petitions and hearing the Sales Tax Authorities against the cases urged in the writ petitions. Whether the case of the appellant was true, namely, that it discovered the mistake only in January, 1967, and that the assessments were illegal were all matters which the High Court had to examine after affidavits had been filed. It was open to the High Court to give a hearing to the parties on these questions and then come to its conclusion as to whether it would not use its discretion under Article 226 of the Constitution. But the petitions could not be rejected summarily as was done by the High Court in these cases.Eight of the appeals arise out of the rejection of the writ petitions and eight others out of refusal to grant special leave to appeal to this Court. We allow the appeals against the orders rejecting the writ petitions and direct the High Court to admit the writ petitions and hear the matters out in the normal way. Since we have granted special leave against the orders rejecting the writ petitions, it is not necessary to consider whether the High Court erred in refusing to certify the appeals under Article 133.
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U.P.State Yarn Company Limited and Anr Vs. G.M.Garg and Anr | The U.P. State Yarn Co.Ltd. is in appeal against the impugned judgment and order of the Allahabad High Court in CMWP No.28384/1991 dated 14.3.1996. The respondent was holding the post of Manager (P & IR). He filed the Writ Petition claiming parity with the post of Manager (P & IR) under UPSTC (U.P. State Textile Corporation) and U.P. State Spinning Co.Ltd. on the ground that he discharges the similar duty and similar responsibility and therefore the Principle of Equal Pay for Equal Work should apply. The High Court by the impugned order on consideration of the materials produced before it accepted the prayer of the respondent and has granted the relief sought for. The contention of the appellant before this Court is that the High Court has not properly evaluated the nature of duties and responsibilities discharged by Manager (P & IR) in :2; the appellant Company vis-a-vis the Manager (P & IR) in other two sister concern and therefore the impugned direction directing Equal Pay for Equal Work is erroneous and could not have been made. We have been taken through a chart indicating the scale of pay of officers in STC/SSC/SYC (the appellants) before us. That chart indicates that out of 23 different categories of posts there is variation only in the scale of pay attached to the Manager (P & IR) and not in any other post. In this state of affairs, we see no infirmity with the impugned direction of the High Court directing that the Manager (P & IR) in the appellants compnay should be entitled to the same scale of pay as is given to the Manager (P & IR) under STC/SSC. We therefore do not find any justification for our interference with the impugned order under Article 136 of the Constitution. | 0[ds]That chart indicates that out of 23 different categories of posts there is variation only in the scale of pay attached to the Manager (PIR) and not in any other post. In this state of affairs, we see no infirmity with the impugned direction of the High Court directing that the Manager (PIR) in the appellants compnay should be entitled to the same scale of pay as is given to the Manager (PIR) under STC/SSC. We therefore do not find any justification for our interference with the impugned order under Article 136 of the Constitution. | 0 | 332 | 109 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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The U.P. State Yarn Co.Ltd. is in appeal against the impugned judgment and order of the Allahabad High Court in CMWP No.28384/1991 dated 14.3.1996. The respondent was holding the post of Manager (P & IR). He filed the Writ Petition claiming parity with the post of Manager (P & IR) under UPSTC (U.P. State Textile Corporation) and U.P. State Spinning Co.Ltd. on the ground that he discharges the similar duty and similar responsibility and therefore the Principle of Equal Pay for Equal Work should apply. The High Court by the impugned order on consideration of the materials produced before it accepted the prayer of the respondent and has granted the relief sought for. The contention of the appellant before this Court is that the High Court has not properly evaluated the nature of duties and responsibilities discharged by Manager (P & IR) in :2; the appellant Company vis-a-vis the Manager (P & IR) in other two sister concern and therefore the impugned direction directing Equal Pay for Equal Work is erroneous and could not have been made. We have been taken through a chart indicating the scale of pay of officers in STC/SSC/SYC (the appellants) before us. That chart indicates that out of 23 different categories of posts there is variation only in the scale of pay attached to the Manager (P & IR) and not in any other post. In this state of affairs, we see no infirmity with the impugned direction of the High Court directing that the Manager (P & IR) in the appellants compnay should be entitled to the same scale of pay as is given to the Manager (P & IR) under STC/SSC. We therefore do not find any justification for our interference with the impugned order under Article 136 of the Constitution.
### Response:
0
### Explanation:
That chart indicates that out of 23 different categories of posts there is variation only in the scale of pay attached to the Manager (PIR) and not in any other post. In this state of affairs, we see no infirmity with the impugned direction of the High Court directing that the Manager (PIR) in the appellants compnay should be entitled to the same scale of pay as is given to the Manager (PIR) under STC/SSC. We therefore do not find any justification for our interference with the impugned order under Article 136 of the Constitution.
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Naim Vs. State Of Uttarakhand | is clear that accused Kabir was having farsa and accused Nayeem was having lathi in hand, but they have not used both the weapons. It has been stated for Nayeem that he loudly said as where is Ali Hassan, only he has to be seen and Kabir said that Ali Hassan is sleeping here, kill him. If all three had come with the intention to cause murder of Ali Hassan then definitely all three would have caused blows but only Sabbir caused blow by palkati and neck of Ali Hassan cut. In post mortem report also only one injury in neck is stated and it is stated that death occurred due to that. In post mortem report it is told only one incised wound 12 x 7cm x deep backbone, right side of neck which was 3 cm below from right jaw. The margins of wound was clear cut and fourth neck backbone was cut. All vessels and muscles of right side were cut. Apart from this no other injury was found on his body and it is also not case of prosecution that Nayeem and Kabir also caused blows." 5. The trial court thus convicted Sabbir under Section 302 and sentenced him to undergo rigorous imprisonment for life. The other two accused Naim and Kabir were acquitted of the charges under Section 302 read with Section 34 IPC and Section 504 IPC.6. The convicted accused Sabbir preferred an appeal against conviction, namely, Criminal Appeal No.285 of 2003 in the High Court of Uttarakhand at Nainital. The High CourtHigh Hi affirmed the view taken by the trial court insofar as Sabbir was concerned and dismissed the appeal. Special leave petition arising therefrom was also dismissed by this Court on 08.03.2010 and thus the case against Sabbir and his conviction and sentence stood concluded and confirmed.7. In the meantime the State, being aggrieved by the order of acquittal insofar as Kabir and Naim are concerned, preferred Government Appeal No.386 of 2003. The High Court after appreciating the entire material on record found the approach of the trial court to be completely erroneous in granting the benefit to Kabir and Naim. It was observed that all three accused were armed with deadly weapons and had entered the house of the deceased at 1200 hrs. in the night and that the essence of Section 34 IPC, namely, consensus of minds of two or more persons to participate in a criminal act to bring about a particular result was fully evident. The High Court, therefore, set aside the acquittal of said Kabir and Naim and convicted them under Section 302 read with Section 34 IPC and sentenced them to undergo imprisonment for life.8. This appeal under Article 134(1)(1)(b) and Article 134(2) of the Constitution of India read with Section 379 IPC seeks to challenge the view taken by the High Court. 9. Appearing for the appellants Mr. P.S. Datta, learned senior counsel submitted that the probability of the occurrence in the manner suggested by the prosecution was completely doubtful, that there was delay of two months in examining PW-2 Behroj under Section 161 Cr.P.C., that no independent witnesses were examined, and that, in any event of the matter, the fundamental aspects of Section 34 IPC were completely absent in the case. The learned senior counsel thus submitted that appeal deserves to be allowed and the accused Kabir and Naim ought to be acquitted of the charges leveled against them. Mr. Prateek Dwivedi, learned counsel, on the other hand, appearing for the State countered the submissions made on behalf of the accused-appellants and supported the view taken by the High Court. 10. In the instant case the FIR lodged by PW-1 within two hours of the incident had named all three accused ascribing particular weapons in their hands and also definite role to them. The FIR further stated that the incident in question was witnessed by Farid and Taimur and that along with the complainant his brother Behroj and nephew Wasim were also sleeping in the verandah. The FIR thus in clear terms disclosed not only the identity of the accused but also the role played by them, so also the names of the persons who subsequently were examined as prosecution witnesses. The entire case of the prosecution insofar as the conviction of Sabbir is concerned rested on the very same testimony coming from the witnesses which case was accepted right upto this Court. The only discordant note that was struck by the trial court was on the applicability of Section 34 IPC insofar as the role ascribed to and played by other two accused, namely, Kabir and Naim. 11. We must observe that Kabir was armed with pharsa and Naim was armed with a lathi, that all three accused had entered the house of the deceased and the complainant at midnight in the company of Sabbir who was also armed with a sharp cutting weapon. When three persons separately armed with weapons storm into the house of the victim in the dead of the night, merely because only one out of them uses the weapon and gives the fatal blow, would not absolve the others. The others may not be required to use their weapons but that by itself does not change the role of such other accused to that of a mere bye-stander. The circumstances can show that the others shared the same intention. In the instant case the common intention to bring about a definite result is evident from the circumstances on record. Additionally, the role of exhortation is also ascribed to the present appellants. In the circumstances, in our considered view, Section 34 IPC is definitely attracted and the High Court was completely justified in setting aside the order of acquittal. The order of acquittal as regards Kabir and Naim was perverse and unwarranted. Having thus considered the matter in its independent perspective we are not persuaded to take a view different from the one which weighed with the High Court. | 0[ds]11. We must observe that Kabir was armed with pharsa and Naim was armed with a lathi, that all three accused had entered the house of the deceased and the complainant at midnight in the company of Sabbir who was also armed with a sharp cutting weapon. When three persons separately armed with weapons storm into the house of the victim in the dead of the night, merely because only one out of them uses the weapon and gives the fatal blow, would not absolve the others. The others may not be required to use their weapons but that by itself does not change the role of such other accused to that of a mereThe circumstances can show that the others shared the same intention. In the instant case the common intention to bring about a definite result is evident from the circumstances on record. Additionally, the role of exhortation is also ascribed to the present appellants. In the circumstances, in our considered view, Section 34 IPC is definitely attracted and the High Court was completely justified in setting aside the order of acquittal. The order of acquittal as regards Kabir and Naim was perverse and unwarranted. Having thus considered the matter in its independent perspective we are not persuaded to take a view different from the one which weighed with the High Court. | 0 | 1,535 | 243 | ### Instruction:
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is clear that accused Kabir was having farsa and accused Nayeem was having lathi in hand, but they have not used both the weapons. It has been stated for Nayeem that he loudly said as where is Ali Hassan, only he has to be seen and Kabir said that Ali Hassan is sleeping here, kill him. If all three had come with the intention to cause murder of Ali Hassan then definitely all three would have caused blows but only Sabbir caused blow by palkati and neck of Ali Hassan cut. In post mortem report also only one injury in neck is stated and it is stated that death occurred due to that. In post mortem report it is told only one incised wound 12 x 7cm x deep backbone, right side of neck which was 3 cm below from right jaw. The margins of wound was clear cut and fourth neck backbone was cut. All vessels and muscles of right side were cut. Apart from this no other injury was found on his body and it is also not case of prosecution that Nayeem and Kabir also caused blows." 5. The trial court thus convicted Sabbir under Section 302 and sentenced him to undergo rigorous imprisonment for life. The other two accused Naim and Kabir were acquitted of the charges under Section 302 read with Section 34 IPC and Section 504 IPC.6. The convicted accused Sabbir preferred an appeal against conviction, namely, Criminal Appeal No.285 of 2003 in the High Court of Uttarakhand at Nainital. The High CourtHigh Hi affirmed the view taken by the trial court insofar as Sabbir was concerned and dismissed the appeal. Special leave petition arising therefrom was also dismissed by this Court on 08.03.2010 and thus the case against Sabbir and his conviction and sentence stood concluded and confirmed.7. In the meantime the State, being aggrieved by the order of acquittal insofar as Kabir and Naim are concerned, preferred Government Appeal No.386 of 2003. The High Court after appreciating the entire material on record found the approach of the trial court to be completely erroneous in granting the benefit to Kabir and Naim. It was observed that all three accused were armed with deadly weapons and had entered the house of the deceased at 1200 hrs. in the night and that the essence of Section 34 IPC, namely, consensus of minds of two or more persons to participate in a criminal act to bring about a particular result was fully evident. The High Court, therefore, set aside the acquittal of said Kabir and Naim and convicted them under Section 302 read with Section 34 IPC and sentenced them to undergo imprisonment for life.8. This appeal under Article 134(1)(1)(b) and Article 134(2) of the Constitution of India read with Section 379 IPC seeks to challenge the view taken by the High Court. 9. Appearing for the appellants Mr. P.S. Datta, learned senior counsel submitted that the probability of the occurrence in the manner suggested by the prosecution was completely doubtful, that there was delay of two months in examining PW-2 Behroj under Section 161 Cr.P.C., that no independent witnesses were examined, and that, in any event of the matter, the fundamental aspects of Section 34 IPC were completely absent in the case. The learned senior counsel thus submitted that appeal deserves to be allowed and the accused Kabir and Naim ought to be acquitted of the charges leveled against them. Mr. Prateek Dwivedi, learned counsel, on the other hand, appearing for the State countered the submissions made on behalf of the accused-appellants and supported the view taken by the High Court. 10. In the instant case the FIR lodged by PW-1 within two hours of the incident had named all three accused ascribing particular weapons in their hands and also definite role to them. The FIR further stated that the incident in question was witnessed by Farid and Taimur and that along with the complainant his brother Behroj and nephew Wasim were also sleeping in the verandah. The FIR thus in clear terms disclosed not only the identity of the accused but also the role played by them, so also the names of the persons who subsequently were examined as prosecution witnesses. The entire case of the prosecution insofar as the conviction of Sabbir is concerned rested on the very same testimony coming from the witnesses which case was accepted right upto this Court. The only discordant note that was struck by the trial court was on the applicability of Section 34 IPC insofar as the role ascribed to and played by other two accused, namely, Kabir and Naim. 11. We must observe that Kabir was armed with pharsa and Naim was armed with a lathi, that all three accused had entered the house of the deceased and the complainant at midnight in the company of Sabbir who was also armed with a sharp cutting weapon. When three persons separately armed with weapons storm into the house of the victim in the dead of the night, merely because only one out of them uses the weapon and gives the fatal blow, would not absolve the others. The others may not be required to use their weapons but that by itself does not change the role of such other accused to that of a mere bye-stander. The circumstances can show that the others shared the same intention. In the instant case the common intention to bring about a definite result is evident from the circumstances on record. Additionally, the role of exhortation is also ascribed to the present appellants. In the circumstances, in our considered view, Section 34 IPC is definitely attracted and the High Court was completely justified in setting aside the order of acquittal. The order of acquittal as regards Kabir and Naim was perverse and unwarranted. Having thus considered the matter in its independent perspective we are not persuaded to take a view different from the one which weighed with the High Court.
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11. We must observe that Kabir was armed with pharsa and Naim was armed with a lathi, that all three accused had entered the house of the deceased and the complainant at midnight in the company of Sabbir who was also armed with a sharp cutting weapon. When three persons separately armed with weapons storm into the house of the victim in the dead of the night, merely because only one out of them uses the weapon and gives the fatal blow, would not absolve the others. The others may not be required to use their weapons but that by itself does not change the role of such other accused to that of a mereThe circumstances can show that the others shared the same intention. In the instant case the common intention to bring about a definite result is evident from the circumstances on record. Additionally, the role of exhortation is also ascribed to the present appellants. In the circumstances, in our considered view, Section 34 IPC is definitely attracted and the High Court was completely justified in setting aside the order of acquittal. The order of acquittal as regards Kabir and Naim was perverse and unwarranted. Having thus considered the matter in its independent perspective we are not persuaded to take a view different from the one which weighed with the High Court.
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Joshi Technologies International Inc Vs. Union Of India | by the State/public Authority with private parties, can be summarized as under: (i) At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.(ii) State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practice some discriminations.(iii) Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, Involving examination and cross- examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases court can direct the aggrieved party to resort to alternate remedy of civil suit etc.(iv) Writ jurisdiction of High Court under Article 226 was not intended to facilitate avoidance of obligation voluntarily incurred.(v) Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the license if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the license, if he finds it commercially inexpedient to conduct his business.(vi) Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.(vii) Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice.(viii) If the contract between private party and the State/instrumentality and/or agency of State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitutional of India and invoking its extraordinary jurisdiction.(ix) The distinction between public law and private law element in the contract with State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract. This Court has maintained the position that writ petition is not maintainable. Dichotomy between public law and private law, rights and remedies would depend on the factual matrix of each case and the distinction between public law remedies and private law, field cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision making process or that the decision is not arbitrary.(x) Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness.(xi) The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. 70) Keeping in mind the aforesaid principles and after considering the arguments of respective parties, we are of the view that on the facts of the present case, it is not a fit case where the High Court should have exercised discretionary jurisdiction under Article 226 of the Constitution. First, the matter is in the realm of pure contract. It is not a case where any statutory contract is awarded.71) As pointed out earlier as well, the contract in question was signed after the approval of Cabinet was obtained. In the said contract, there was no clause pertaining to Section 42 of the Act. The appellant is presumed to have knowledge of the legal provision, namely, in the absence of such a clause, special allowances under Section 42 would impermissible. Still it signed the contract without such a clause, with open eyes. No doubt, the appellant claimed these deductions in its income tax returns and it was even allowed these deductions by the Income Tax Authorities. Further, no doubt, on this premise, it shared the profits with the Government as well. However, this conduct of the appellant or even the respondents, was outside the scope of the contract and that by itself may not give any right to the appellant to claim a relief in the nature of Mandamus to direct the Government to incorporate such a clause in the contract, in the face of the specific provisions in the contract to the contrary as noted above, particularly, Article 32 thereof. It was purely a contractual matter with no element of public law involved thereunder. | 0[ds]40) In the present case, it is an admitted fact that conditions mentioned in Section 42 of the Act are not fulfilled. In the two PSCs, no provision is made for making admissible the aforesaid allowances to the assessee. It is obvious that the Assessing Officer could not have granted these allowances/deductions to the assessee in the absence of such stipulations, a mandatory requirement, in the PSCs.41) The appellant is conscious of this position. It is for this reason the attempt of the appellant was to read the provisions of MPSC into the agreement. That bring us to the secondis, therefore, impermissible for the appellant to take the aid of MPSC or the clauses contained therein while construing the terms of PSCs. Therefore, it was not even open to the Income Tax Authorities to go beyond the stipulations contained in the PSCs while making the assessment and had to exclusively remain within the provisions of the Agreement. On that touchstone, the Assessing Officer had no option but to deny the benefit of deductions/allowances claimed by the appellant in its income tax returns filed for the Assessment Yearhave already held above that on proper construction of the provisions of Section 42 of the Act and application of these provisions to the instant case, the appellant was not entitled to any such deductions under the PSCs. Thus, when in law no such deduction was permissible as per the PSCs in the present form, even if such deduction was given wrongly in the earlier years that would not amount to a wrong act on the part of the Income Tax Authorities and, therefore, would not enure to the benefit of the appellant in the Assessment Year in question as well. The appellant cannot say that merely because this benefit is extended in the previous years; albeit wrongly, this wrong act should continue to perpetuate. There is no estoppel against law. We have taken note of the judgment of this Court in Enron Expat Service Inc. (Supra) where the assessee had offered to pay tax under Section 44(BB) of the Act in the earlier years wrongly and the Court held that it would not operate as an estoppel to claim the benefit of DTAA for the Assessment Year in question when it was found that the assessee was otherwise entitled to it. Same principle applies, though it is a converse situation where assessee has not offered to pay tax wrongly [which was the situation in Enron Expat Service Inc. (Supra)] and instead the tax authorities have extended the benefit wrongly to thedo not know whether the High Court is correct in its conclusion as to whether the contents of the three letters are contrary to records and the averments made in para 4 of the counter affidavit are in conformity with the records, in as much as these records have not been produced for our perusal. However, on going through the terms of the PSCs it becomes apparent that such an exercise is not even required.49) It is stated at the cost of repetition that Article 32 of the contract supersedes any understanding between the parties. Thus, even if it is presumed that there was an understanding between the parties before entering into an agreement to the effect that benefit of Section 42 deduction shall be extended to the appellant, that understanding vanished into thin air with the execution of the two PSCs.34. In our opinion, the wide sweep of Art. 14 undoubtedly takes within its fold the impugned circular issued by the State of U.P. in exercise of its executive power, irrespective of the precise nature of appointment of the Government counsel in the districts and the other rights, contractual or statutory, which the appointees may have. It is for this reason that we base our decision on the ground that independent of any statutory right, available to the appointments, and assuming for the purpose of this case that the rights flow only from the contract of appointment, the impugned circular, issued in exercise of the executive power of the State, must satisfy Art. 14 of the Constitution and if it is shown to be arbitrary, it must be struck down. However, we have referred to certain provisions relating to initial appointment, termination or renewal of tenure to indicate that the action is controlled at least by settled guidelines, followed by the State of U.P. for a long time. This too is relevant for deciding the question of arbitrariness alleged in the presentSimilarly, in State of Gujarat v. M.P. Shah Charitable Trust ((194) 3 SCC 552) , this Court reiterated the principles that if the matter is governed by a contract, the writ petition is not maintainable since it is a public law remedy and is not available in private law field, for example, where the matter is governed by a non-statutoryFurther legal position which emerges from various judgments of this Court dealing with different situations/aspects relating to the contracts entered into by the State/public Authority with private parties, can be summarized asAt the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.(ii) State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practice some discriminations.(iii) Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, Involving examination and cross- examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases court can direct the aggrieved party to resort to alternate remedy of civil suit etc.(iv) Writ jurisdiction of High Court under Article 226 was not intended to facilitate avoidance of obligation voluntarily incurred.(v) Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the license if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the license, if he finds it commercially inexpedient to conduct his business.(vi) Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.(vii) Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice.(viii) If the contract between private party and the State/instrumentality and/or agency of State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitutional of India and invoking its extraordinary jurisdiction.(ix) The distinction between public law and private law element in the contract with State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract. This Court has maintained the position that writ petition is not maintainable. Dichotomy between public law and private law, rights and remedies would depend on the factual matrix of each case and the distinction between public law remedies and private law, field cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision making process or that the decision is not arbitrary.(x) Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness.(xi) The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractualKeeping in mind the aforesaid principles and after considering the arguments of respective parties, we are of the view that on the facts of the present case, it is not a fit case where the High Court should have exercised discretionary jurisdiction under Article 226 of the Constitution. First, the matter is in the realm of pure contract. It is not a case where any statutory contract is awarded.71) As pointed out earlier as well, the contract in question was signed after the approval of Cabinet was obtained. In the said contract, there was no clause pertaining to Section 42 of the Act. The appellant is presumed to have knowledge of the legal provision, namely, in the absence of such a clause, special allowances under Section 42 would impermissible. Still it signed the contract without such a clause, with open eyes. No doubt, the appellant claimed these deductions in its income tax returns and it was even allowed these deductions by the Income Tax Authorities. Further, no doubt, on this premise, it shared the profits with the Government as well. However, this conduct of the appellant or even the respondents, was outside the scope of the contract and that by itself may not give any right to the appellant to claim a relief in the nature of Mandamus to direct the Government to incorporate such a clause in the contract, in the face of the specific provisions in the contract to the contrary as noted above, particularly, Article 32 thereof. It was purely a contractual matter with no element of public law involved thereunder. | 0 | 17,610 | 2,012 | ### 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:
by the State/public Authority with private parties, can be summarized as under: (i) At the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.(ii) State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practice some discriminations.(iii) Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, Involving examination and cross- examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases court can direct the aggrieved party to resort to alternate remedy of civil suit etc.(iv) Writ jurisdiction of High Court under Article 226 was not intended to facilitate avoidance of obligation voluntarily incurred.(v) Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the license if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the license, if he finds it commercially inexpedient to conduct his business.(vi) Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.(vii) Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice.(viii) If the contract between private party and the State/instrumentality and/or agency of State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitutional of India and invoking its extraordinary jurisdiction.(ix) The distinction between public law and private law element in the contract with State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract. This Court has maintained the position that writ petition is not maintainable. Dichotomy between public law and private law, rights and remedies would depend on the factual matrix of each case and the distinction between public law remedies and private law, field cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision making process or that the decision is not arbitrary.(x) Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness.(xi) The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractual disputes. 70) Keeping in mind the aforesaid principles and after considering the arguments of respective parties, we are of the view that on the facts of the present case, it is not a fit case where the High Court should have exercised discretionary jurisdiction under Article 226 of the Constitution. First, the matter is in the realm of pure contract. It is not a case where any statutory contract is awarded.71) As pointed out earlier as well, the contract in question was signed after the approval of Cabinet was obtained. In the said contract, there was no clause pertaining to Section 42 of the Act. The appellant is presumed to have knowledge of the legal provision, namely, in the absence of such a clause, special allowances under Section 42 would impermissible. Still it signed the contract without such a clause, with open eyes. No doubt, the appellant claimed these deductions in its income tax returns and it was even allowed these deductions by the Income Tax Authorities. Further, no doubt, on this premise, it shared the profits with the Government as well. However, this conduct of the appellant or even the respondents, was outside the scope of the contract and that by itself may not give any right to the appellant to claim a relief in the nature of Mandamus to direct the Government to incorporate such a clause in the contract, in the face of the specific provisions in the contract to the contrary as noted above, particularly, Article 32 thereof. It was purely a contractual matter with no element of public law involved thereunder.
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### Explanation:
relating to the contracts entered into by the State/public Authority with private parties, can be summarized asAt the stage of entering into a contract, the State acts purely in its executive capacity and is bound by the obligations of fairness.(ii) State in its executive capacity, even in the contractual field, is under obligation to act fairly and cannot practice some discriminations.(iii) Even in cases where question is of choice or consideration of competing claims before entering into the field of contract, facts have to be investigated and found before the question of a violation of Article 14 could arise. If those facts are disputed and require assessment of evidence the correctness of which can only be tested satisfactorily by taking detailed evidence, Involving examination and cross- examination of witnesses, the case could not be conveniently or satisfactorily decided in proceedings under Article 226 of the Constitution. In such cases court can direct the aggrieved party to resort to alternate remedy of civil suit etc.(iv) Writ jurisdiction of High Court under Article 226 was not intended to facilitate avoidance of obligation voluntarily incurred.(v) Writ petition was not maintainable to avoid contractual obligation. Occurrence of commercial difficulty, inconvenience or hardship in performance of the conditions agreed to in the contract can provide no justification in not complying with the terms of contract which the parties had accepted with open eyes. It cannot ever be that a licensee can work out the license if he finds it profitable to do so: and he can challenge the conditions under which he agreed to take the license, if he finds it commercially inexpedient to conduct his business.(vi) Ordinarily, where a breach of contract is complained of, the party complaining of such breach may sue for specific performance of the contract, if contract is capable of being specifically performed. Otherwise, the party may sue for damages.(vii) Writ can be issued where there is executive action unsupported by law or even in respect of a corporation there is denial of equality before law or equal protection of law or if can be shown that action of the public authorities was without giving any hearing and violation of principles of natural justice after holding that action could not have been taken without observing principles of natural justice.(viii) If the contract between private party and the State/instrumentality and/or agency of State is under the realm of a private law and there is no element of public law, the normal course for the aggrieved party, is to invoke the remedies provided under ordinary civil law rather than approaching the High Court under Article 226 of the Constitutional of India and invoking its extraordinary jurisdiction.(ix) The distinction between public law and private law element in the contract with State is getting blurred. However, it has not been totally obliterated and where the matter falls purely in private field of contract. This Court has maintained the position that writ petition is not maintainable. Dichotomy between public law and private law, rights and remedies would depend on the factual matrix of each case and the distinction between public law remedies and private law, field cannot be demarcated with precision. In fact, each case has to be examined, on its facts whether the contractual relations between the parties bear insignia of public element. Once on the facts of a particular case it is found that nature of the activity or controversy involves public law element, then the matter can be examined by the High Court in writ petitions under Article 226 of the Constitution of India to see whether action of the State and/or instrumentality or agency of the State is fair, just and equitable or that relevant factors are taken into consideration and irrelevant factors have not gone into the decision making process or that the decision is not arbitrary.(x) Mere reasonable or legitimate expectation of a citizen, in such a situation, may not by itself be a distinct enforceable right, but failure to consider and give due weight to it may render the decision arbitrary, and this is how the requirements of due consideration of a legitimate expectation forms part of the principle of non-arbitrariness.(xi) The scope of judicial review in respect of disputes falling within the domain of contractual obligations may be more limited and in doubtful cases the parties may be relegated to adjudication of their rights by resort to remedies provided for adjudication of purely contractualKeeping in mind the aforesaid principles and after considering the arguments of respective parties, we are of the view that on the facts of the present case, it is not a fit case where the High Court should have exercised discretionary jurisdiction under Article 226 of the Constitution. First, the matter is in the realm of pure contract. It is not a case where any statutory contract is awarded.71) As pointed out earlier as well, the contract in question was signed after the approval of Cabinet was obtained. In the said contract, there was no clause pertaining to Section 42 of the Act. The appellant is presumed to have knowledge of the legal provision, namely, in the absence of such a clause, special allowances under Section 42 would impermissible. Still it signed the contract without such a clause, with open eyes. No doubt, the appellant claimed these deductions in its income tax returns and it was even allowed these deductions by the Income Tax Authorities. Further, no doubt, on this premise, it shared the profits with the Government as well. However, this conduct of the appellant or even the respondents, was outside the scope of the contract and that by itself may not give any right to the appellant to claim a relief in the nature of Mandamus to direct the Government to incorporate such a clause in the contract, in the face of the specific provisions in the contract to the contrary as noted above, particularly, Article 32 thereof. It was purely a contractual matter with no element of public law involved thereunder.
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Indore Textiles Ltd Vs. Union of India | to secure the proper management of the industrial undertaking. The reading of the preamble and of the Act as a whole makes it clear that the said legislation was undertaken with a view to secure the proper management of the same "so as to subserve the interest of the general public by ensuring the continuity of production of cloth which is vital to the needs of the country and for matters connected therewith or incidental thereto" (Emphasis added) The anxiety in promulgating the ordinance and replacing it with the Act clearly was to see that the mill, which had been closed for more than three months at the time when the notification under Section 18AA of the IDR Act had been issued, should continue its activity of production of cloth which was in the interest of the country. As a result of the acquisition of the undertaking it is but obvious that its management would henceforth vest with the State Government and it is for this reason that provisions with regard thereto are contained in Chapter IV of the said Adhiniyam. 7. It was faintly suggested that when the IDR Act contains the power to take over the management of an undertaking there can be no acquisition by the said Act which would have the same effect, i.e., taking over of the management of the undertaking. This question is no longer res integra. There was a similar provision like the one contained in Chapter IV of the Adhiniyam which existed in the U.P. Sugar Undertaking Acquisition Act, 1971, which enabled the management of the acquired undertakings being taken over by the State Government. A contention was raised in Ishwari Khetans case (supra) that the UP Act was violative of Section 20 of the IDR Act which provided that after the commencement of the IDR Act it was not competent for any State Government or a local authority to take over the management or control of any industrial undertaking under any law for the time being in force which authorises any such Government or local authority so to do. It was observed that the said Section 20 of the IDR Act does not preclude or forbid a State Legislature from exercising legislative powers under an Entry other than Entry 24 of List II and if in exercise of that legislative power the consequential transfer of management or control over the industry or undertaking follows as a result of an acquisition of such an undertaking as an incident of acquisition then such taking over of the management or control pursuant to an exercise of legislative power is not within the inhibition of Section 20 of the IDR Act. To the same effect is a recent judgment of this Court in Mahesh Kumar Saharias case (supra) where a similar challenge to the Nagaland Forest Products Limited (Acquisition of Shares) Act, 1982, was repelled. 8. Shri Sanghi, however, vehemently contended that neither in Ishwari Khetans nor in Mahesh Kumar Saharias cases had the management been taken over by the Central Government under the IDR Act before the respective acquisition Acts had been passed. He submitted that present case is clearly distinguishable because as on the date of the issuance of the ordinance the management was with the Central Government. 9. In our opinion this distinction, if at all, makes no difference to the merits of the case because as held in Ishwari Khetans and Mahesh Kumar Saharias cases the provision for taking over of the undertaking is merely incidental to the acquisition of the undertaking and is not in conflict with Section 20 of the IDR Act. Furthermore the extended period of management with the Central Government was coming to end on 11th February, 1986 and the impugned ordinance was issued one day before that, i.e., on 10th February, 1986. This was obviously done with a view that there should be no break and the management of the undertaking should continue with the Government even after 11th February, 1986. The so-called overlapping of the management for one or two days, i.e. 10/11th February, 1986, would not and cannot affect the validity of the Adhiniyam. 10. It was lastly submitted by Shri Sanghi that the undertaking was under the control and management of the Government from 12th August, 1977 till its acquisition. According to Section 5 of the Adhiniyam every liability in respect of the period prior to the appointed date shall be the liability of the company and shall be enforceable against the owners and not against the State Government. It was contended that during this period of management after 12th August, 1977, the liabilities had been incurred by the Government when it was managing the undertaking and it will be unfair and arbitrary if the liabilities incurred during this period, when the management of the undertaking was not with the petitioners should be fastened upon the petitioners and they be asked to discharge the same. We do not find in the writ petition any challenge to the Act or Section 5 in particular on the ground that the liability for the period after 12th August, 1977 is sought to be fastened on the petitioners. It is admitted that so far no demand under Section 5 has been raised. Even though Shri K.N. Shukla, learned senior counsel appearing for the State, stated that the liabilities between 12th August, 1977 and 10th February, 1986 will be borne by the State, we do not think it is necessary or appropriate, in the absence of necessary pleadings, to adjudicate on this aspect. We, however, do hope and expect that the Government will not act unfairly and whenever necessary it will pass appropriate orders, which power it has under Section 32 of the Act, to remove any difficulty in this regard. 11. Inasmuch as the validity of the Adhiniyam is being upheld, the civil appeal No. 6815 of 1983 in which the challenge was to the taking over of the management under the IRD Act has become infructuous. | 0[ds]6. Even though in the writ petition the principal challenge to the Act was on the ground that neither the State Legislature nor the Governor of the State had legislative competence to promulgate the Act and the Ordinance inasmuch as the appropriate entry for the enactment of such an ordinance or Act was Entry 52 of List I of the 7th Schedule, but this contention, at the time of arguments, was not raised by Shri G.L. Sanghi, learned senior counsel for the petitioners presumably because in cases of similar enactments such a contention had been rejected by this Court in the case of Ishwari Khetan Sugar Mills (P) Ltd. and Ors. v. State of Uttar Pradesh and Ors., (1980) 4 SCC 136 and Mahesh Kumar Saharia v. State of Nagaland and Ors., (1997) 8 SCC 176 , to mention only two. It was, however, submitted by Shri Sanghi that there was no existing public purpose for which the acquisition could have been made. It was contended that the object of the Act is clearly reflected in the preamble which shows that the undertaking was being acquired with a view to secure its proper management. Inasmuch as the management of the undertaking had already been taken over by the Central Government, under the order passed under Section 18AA of the IDR Act, Shri Sanghi submitted that the reasons for securing proper management did not exist and, therefore, the Act could not have beenis true that on the date when the ordinance was issued, i.e., 10th February, 1986, the management of the undertaking was still with the Central Government. The preamble of the Act does not show that the same was passed with a view only to secure the proper management of the industrial undertaking. The reading of the preamble and of the Act as a whole makes it clear that the said legislation was undertaken with a view to secure the proper management of the same "so as to subserve the interest of the general public by ensuring the continuity of production of cloth which is vital to the needs of the country and for matters connected therewith or incidental thereto" (Emphasis added) The anxiety in promulgating the ordinance and replacing it with the Act clearly was to see that the mill, which had been closed for more than three months at the time when the notification under Section 18AA of the IDR Act had been issued, should continue its activity of production of cloth which was in the interest of the country. As a result of the acquisition of the undertaking it is but obvious that its management would henceforth vest with the State Government and it is for this reason that provisions with regard thereto are contained in Chapter IV of the said Adhiniyam.In our opinion this distinction, if at all, makes no difference to the merits of the case because as held in Ishwari Khetans and Mahesh Kumar Saharias cases the provision for taking over of the undertaking is merely incidental to the acquisition of the undertaking and is not in conflict with Section 20 of the IDR Act. Furthermore the extended period of management with the Central Government was coming to end on 11th February, 1986 and the impugned ordinance was issued one day before that, i.e., on 10th February, 1986. This was obviously done with a view that there should be no break and the management of the undertaking should continue with the Government even after 11th February, 1986. The so-called overlapping of the management for one or two days, i.e. 10/11th February, 1986, would not and cannot affect the validity of the Adhiniyam.It was lastly submitted by Shri Sanghi that the undertaking was under the control and management of the Government from 12th August, 1977 till its acquisition. According to Section 5 of the Adhiniyam every liability in respect of the period prior to the appointed date shall be the liability of the company and shall be enforceable against the owners and not against the State Government. It was contended that during this period of management after 12th August, 1977, the liabilities had been incurred by the Government when it was managing the undertaking and it will be unfair and arbitrary if the liabilities incurred during this period, when the management of the undertaking was not with the petitioners should be fastened upon the petitioners and they be asked to discharge the same. We do not find in the writ petition any challenge to the Act or Section 5 in particular on the ground that the liability for the period after 12th August, 1977 is sought to be fastened on the petitioners. It is admitted that so far no demand under Section 5 has been raised. Even though Shri K.N. Shukla, learned senior counsel appearing for the State, stated that the liabilities between 12th August, 1977 and 10th February, 1986 will be borne by the State, we do not think it is necessary or appropriate, in the absence of necessary pleadings, to adjudicate on this aspect. We, however, do hope and expect that the Government will not act unfairly and whenever necessary it will pass appropriate orders, which power it has under Section 32 of the Act, to remove any difficulty in thisas the validity of the Adhiniyam is being upheld, the civil appeal No. 6815 of 1983 in which the challenge was to the taking over of the management under the IRD Act has become infructuous. | 0 | 2,244 | 994 | ### Instruction:
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to secure the proper management of the industrial undertaking. The reading of the preamble and of the Act as a whole makes it clear that the said legislation was undertaken with a view to secure the proper management of the same "so as to subserve the interest of the general public by ensuring the continuity of production of cloth which is vital to the needs of the country and for matters connected therewith or incidental thereto" (Emphasis added) The anxiety in promulgating the ordinance and replacing it with the Act clearly was to see that the mill, which had been closed for more than three months at the time when the notification under Section 18AA of the IDR Act had been issued, should continue its activity of production of cloth which was in the interest of the country. As a result of the acquisition of the undertaking it is but obvious that its management would henceforth vest with the State Government and it is for this reason that provisions with regard thereto are contained in Chapter IV of the said Adhiniyam. 7. It was faintly suggested that when the IDR Act contains the power to take over the management of an undertaking there can be no acquisition by the said Act which would have the same effect, i.e., taking over of the management of the undertaking. This question is no longer res integra. There was a similar provision like the one contained in Chapter IV of the Adhiniyam which existed in the U.P. Sugar Undertaking Acquisition Act, 1971, which enabled the management of the acquired undertakings being taken over by the State Government. A contention was raised in Ishwari Khetans case (supra) that the UP Act was violative of Section 20 of the IDR Act which provided that after the commencement of the IDR Act it was not competent for any State Government or a local authority to take over the management or control of any industrial undertaking under any law for the time being in force which authorises any such Government or local authority so to do. It was observed that the said Section 20 of the IDR Act does not preclude or forbid a State Legislature from exercising legislative powers under an Entry other than Entry 24 of List II and if in exercise of that legislative power the consequential transfer of management or control over the industry or undertaking follows as a result of an acquisition of such an undertaking as an incident of acquisition then such taking over of the management or control pursuant to an exercise of legislative power is not within the inhibition of Section 20 of the IDR Act. To the same effect is a recent judgment of this Court in Mahesh Kumar Saharias case (supra) where a similar challenge to the Nagaland Forest Products Limited (Acquisition of Shares) Act, 1982, was repelled. 8. Shri Sanghi, however, vehemently contended that neither in Ishwari Khetans nor in Mahesh Kumar Saharias cases had the management been taken over by the Central Government under the IDR Act before the respective acquisition Acts had been passed. He submitted that present case is clearly distinguishable because as on the date of the issuance of the ordinance the management was with the Central Government. 9. In our opinion this distinction, if at all, makes no difference to the merits of the case because as held in Ishwari Khetans and Mahesh Kumar Saharias cases the provision for taking over of the undertaking is merely incidental to the acquisition of the undertaking and is not in conflict with Section 20 of the IDR Act. Furthermore the extended period of management with the Central Government was coming to end on 11th February, 1986 and the impugned ordinance was issued one day before that, i.e., on 10th February, 1986. This was obviously done with a view that there should be no break and the management of the undertaking should continue with the Government even after 11th February, 1986. The so-called overlapping of the management for one or two days, i.e. 10/11th February, 1986, would not and cannot affect the validity of the Adhiniyam. 10. It was lastly submitted by Shri Sanghi that the undertaking was under the control and management of the Government from 12th August, 1977 till its acquisition. According to Section 5 of the Adhiniyam every liability in respect of the period prior to the appointed date shall be the liability of the company and shall be enforceable against the owners and not against the State Government. It was contended that during this period of management after 12th August, 1977, the liabilities had been incurred by the Government when it was managing the undertaking and it will be unfair and arbitrary if the liabilities incurred during this period, when the management of the undertaking was not with the petitioners should be fastened upon the petitioners and they be asked to discharge the same. We do not find in the writ petition any challenge to the Act or Section 5 in particular on the ground that the liability for the period after 12th August, 1977 is sought to be fastened on the petitioners. It is admitted that so far no demand under Section 5 has been raised. Even though Shri K.N. Shukla, learned senior counsel appearing for the State, stated that the liabilities between 12th August, 1977 and 10th February, 1986 will be borne by the State, we do not think it is necessary or appropriate, in the absence of necessary pleadings, to adjudicate on this aspect. We, however, do hope and expect that the Government will not act unfairly and whenever necessary it will pass appropriate orders, which power it has under Section 32 of the Act, to remove any difficulty in this regard. 11. Inasmuch as the validity of the Adhiniyam is being upheld, the civil appeal No. 6815 of 1983 in which the challenge was to the taking over of the management under the IRD Act has become infructuous.
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6. Even though in the writ petition the principal challenge to the Act was on the ground that neither the State Legislature nor the Governor of the State had legislative competence to promulgate the Act and the Ordinance inasmuch as the appropriate entry for the enactment of such an ordinance or Act was Entry 52 of List I of the 7th Schedule, but this contention, at the time of arguments, was not raised by Shri G.L. Sanghi, learned senior counsel for the petitioners presumably because in cases of similar enactments such a contention had been rejected by this Court in the case of Ishwari Khetan Sugar Mills (P) Ltd. and Ors. v. State of Uttar Pradesh and Ors., (1980) 4 SCC 136 and Mahesh Kumar Saharia v. State of Nagaland and Ors., (1997) 8 SCC 176 , to mention only two. It was, however, submitted by Shri Sanghi that there was no existing public purpose for which the acquisition could have been made. It was contended that the object of the Act is clearly reflected in the preamble which shows that the undertaking was being acquired with a view to secure its proper management. Inasmuch as the management of the undertaking had already been taken over by the Central Government, under the order passed under Section 18AA of the IDR Act, Shri Sanghi submitted that the reasons for securing proper management did not exist and, therefore, the Act could not have beenis true that on the date when the ordinance was issued, i.e., 10th February, 1986, the management of the undertaking was still with the Central Government. The preamble of the Act does not show that the same was passed with a view only to secure the proper management of the industrial undertaking. The reading of the preamble and of the Act as a whole makes it clear that the said legislation was undertaken with a view to secure the proper management of the same "so as to subserve the interest of the general public by ensuring the continuity of production of cloth which is vital to the needs of the country and for matters connected therewith or incidental thereto" (Emphasis added) The anxiety in promulgating the ordinance and replacing it with the Act clearly was to see that the mill, which had been closed for more than three months at the time when the notification under Section 18AA of the IDR Act had been issued, should continue its activity of production of cloth which was in the interest of the country. As a result of the acquisition of the undertaking it is but obvious that its management would henceforth vest with the State Government and it is for this reason that provisions with regard thereto are contained in Chapter IV of the said Adhiniyam.In our opinion this distinction, if at all, makes no difference to the merits of the case because as held in Ishwari Khetans and Mahesh Kumar Saharias cases the provision for taking over of the undertaking is merely incidental to the acquisition of the undertaking and is not in conflict with Section 20 of the IDR Act. Furthermore the extended period of management with the Central Government was coming to end on 11th February, 1986 and the impugned ordinance was issued one day before that, i.e., on 10th February, 1986. This was obviously done with a view that there should be no break and the management of the undertaking should continue with the Government even after 11th February, 1986. The so-called overlapping of the management for one or two days, i.e. 10/11th February, 1986, would not and cannot affect the validity of the Adhiniyam.It was lastly submitted by Shri Sanghi that the undertaking was under the control and management of the Government from 12th August, 1977 till its acquisition. According to Section 5 of the Adhiniyam every liability in respect of the period prior to the appointed date shall be the liability of the company and shall be enforceable against the owners and not against the State Government. It was contended that during this period of management after 12th August, 1977, the liabilities had been incurred by the Government when it was managing the undertaking and it will be unfair and arbitrary if the liabilities incurred during this period, when the management of the undertaking was not with the petitioners should be fastened upon the petitioners and they be asked to discharge the same. We do not find in the writ petition any challenge to the Act or Section 5 in particular on the ground that the liability for the period after 12th August, 1977 is sought to be fastened on the petitioners. It is admitted that so far no demand under Section 5 has been raised. Even though Shri K.N. Shukla, learned senior counsel appearing for the State, stated that the liabilities between 12th August, 1977 and 10th February, 1986 will be borne by the State, we do not think it is necessary or appropriate, in the absence of necessary pleadings, to adjudicate on this aspect. We, however, do hope and expect that the Government will not act unfairly and whenever necessary it will pass appropriate orders, which power it has under Section 32 of the Act, to remove any difficulty in thisas the validity of the Adhiniyam is being upheld, the civil appeal No. 6815 of 1983 in which the challenge was to the taking over of the management under the IRD Act has become infructuous.
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UNION OF INDIA Vs. NARESHKUMAR BADRIKUMAR JAGAD | decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction. 48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government. 49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open. 50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents. | 1[ds]19. Reverting to the question of whether Union of India has locus to file the review petition, we must immediately advert to Section 114 of the Code of Civil Procedure ( CPC) which, inter alia, postulates that any person considering himself aggrieved would have locus to file a review petition. Order XLVII of CPC restates the position that any person considering himself aggrieved can file a review petition. Be that as it may, the Supreme Court exercises review jurisdiction by virtue of Article 137 of the Constitution which predicates that the Supreme Court shall have the power to review any judgment pronounced or order made by it. Besides, the Supreme Court has framed Rules to govern review petitions. Notably, neither Order XLVII of CPC nor Order XLVII of the Supreme Court Rules limits the remedy of review only to the parties to the judgment under review. Therefore, we have no hesitation in enunciating that even a third party to the proceedings, if he considers himself an aggrieved person, may take recourse to the remedy of review petition. The quintessence is that the person should be aggrieved by the judgment and order passed by this Court in some respectIt is indisputable that the management of Podar Mills-Textile Undertaking was taken over by the Central Government after the commencement of the 1983 Act. The scope of management would obviously include possession and permissible use of the suit property of the Textile Undertaking so taken over. In due course, the 1995 Act came into force. As a consequence of Section 3 of this Act, the right, title and interest of the owners of the subject Textile Undertaking (Podar Mills Ltd.) including the statutory tenancy rights in relation to the suit property stood transferred to and vested absolutely in the Central Government. By the same provision, vide sub-section (2) thereof, the Textile Undertaking which stood vested in the Central Government immediately thereafter stood transferred to and vested in the National Textile Corporation. That included subsisting statutory tenancy rights in respect of the suit property enjoyed by the concerned Textile Undertaking. However, Section 3 stands amended by virtue of the 2014 Act. That amendment by a legal fiction is deemed to have been inserted into the 1995 Act w.e.f. 1 st January, 1994. The purport of the amended sub-sections (3) and (4), inserted in section 3 is that the leasehold rights of the Textile Undertaking would continue to remain vested in the Central Government and no Court could exercise jurisdiction to order divestment from the NTC of the property vested in it by the Central Government. In addition, the Amendment Act of 2014 has introduced Section 39 in the 1995 Act, titled as Validation. We shall dilate on the efficacy of these provisions a little later21. Suffice it to observe that since Union of India is asseverating that the suit property had vested absolutely in the Central Government and continues to so vest in it by virtue of a legal fiction in the Validation Act 2014, would be justified in contending that it is a person aggrieved and has locus to point out that the decree for possession of the suit premises against NTC could not have been passed and in any case, the same could not be enforced in law. It is an inexecutable decree and including the undertaking given by NTC, assuming that the concerned court had jurisdiction to pass such a decree24. The grounds for review are specified in clause (1) noted above. The factual scenario in the present case is certainly not ascribable to discovery of new or important matters or evidence which was available or existing at the time of the decree but could not be produced despite exercise of due diligence. In the present case, the asseveration of the review petitioner is about the mistake or error apparent on the face of the record committed by the Court and more particularly founded on the effect of the subsequent enactment of Validation Act 2014 which completely changes the status of the parties, namely, Union of India and NTC qua the suit property and bars the enforcement of any decree and including the undertaking given to the Court by NTC25. Ordinarily, enactment of a subsequent legislation by itself cannot be the basis to review the judgment already rendered by the Court. But the argument of the review petitioner proceeds on the premise that the subsequent legislation has completely altered the status of the parties retrospectively qua the suit property with effect from 1 st April, 1994 by a legal fiction, as a result of which the cause of action against NTC as referred to in the subject suit had become non¬ existent; and including any decree or order passed against NTC or for that matter, an undertaking filed by NTC in any court or tribunal or authority has been rendered unenforceable by operation of law and cannot be continued or taken forward. In other words, even if a valid decree has been passed against NTC, the same had become inexecutable by operation of law27. Applying the underlying principle and as jurisdictional issues have been raised which are essentially founded on the law enacted by the Parliament with retrospective effect containing a legal fiction and for doing complete justice to the parties, besides the power of review under Article 137 of the Constitution, it is open to this Court to exercise its plenary power under Article 142 of the Constitution28. Reverting to the judgment under review, it is noticed that the provisions of the 1983 Act and 1995 Act have been generally adverted to while dealing with the plea taken by the appellant NTC that it was in possession of the suit property merely as an agent of the Central Government. However, the Court declined to entertain that plea of NTC as it was not so specifically pleaded in the written statement. The Court then concluded that the appellant NTC was neither the Government nor Government Department nor Agent of the Central Government in the context of the Maharashtra Rent Control Act, 1999. That view has been taken in reference to the 1983 Act and the un-amended provisions of 1995 Act. Indeed, the review petitioners would argue that on a fair reading of the un-amended provisions contained in 1995 Act and juxtaposed with the provisions of 1983 Act, the inescapable conclusion is that the leasehold rights continued to vest in the Central Government. However, we are not inclined to countenance this argument29. The review petitioners may be justified in pointing out that this Court committed an error apparent on the face of the record in observing that the appellant had never raised the issue before the courts below that the Central Government was the tenant and the appellant was holding the premises merely as an agent; and that a vague plea was taken about the non¬joinder of the parties - which plea was not even pursued before the Trial Court. Those errors, in our opinion, would not affect the final conclusion recorded by this Court in the judgment under review, considering the effect of the provisions as were applicable at the relevant time in the form of un¬ amended Section 3 of the 1995 Act.35. Being a protected or statutory tenant, Podar Mills could be dispossessed from the suit premises by the Trust only on the grounds permissible under that Act by instituting eviction proceedings before the competent Rent Court having exclusive jurisdiction to entertain the dispute between the landlord and tenant, who in turn would then have to record its satisfaction about the entitlement of the landlord to recover possession of the suit property. The right so enjoyed by the Podar Mills Ltd. stood transferred to and vested in the Central Government with effect from 1 st April, 1994. Further, by virtue of amended Section 3 of the 1995 Act, by operation of law, the rights of the Textile Undertaking, in respect of the suit property, of being a statutory or protected tenant, continued to vest in the Central Government even after the coming into force of the 1999 Act and repeal of the 1947 Act.36. As aforementioned, since the Central Government continued to remain as the protected or statutory tenant in respect of the suit property w.e.f. 1 st April, 1994, the fact that the appellant NTC was carrying on its activities therein would not extricate the landlord (Trust) from initiating eviction proceedings against the real tenant, namely, the Central Government or Union of India; and such eviction proceedings could be maintained only before the jurisdictional Rent Court having exclusive jurisdiction to decide any dispute between the landlord and tenant. The present suit, however, came to be filed only against the appellant NTC and that too before the jurisdictional civil court under the Transfer of Property Act. It is obvious that the Trust acted on the legal advice and instituted the present suit, despite having filed two suits (namely, TER Suit 680/1568 of 1995 and RAD Suit 955/1997) in earlier point of time, for possession of the suit property, in both of which Union of India was made party¬defendant. But those suits were eventually dismissed for non¬prosecution and withdrawn, respectively, during the pendency of the subject suit, for reasons best known to the Trust37. To put it differently, the present suit instituted by the Trust under the provisions of the Transfer of Property Act, which culminated with the decree of eviction, affirmed up to this Court vide judgment under review, has been rendered without jurisdiction, by operation of law. This being the position after coming into force of the Validation Act 2014 and in particular, the purport of Section 39 as inserted, the decree so passed or undertaking given by NTC cannot be continued or enforced38. According to the learned counsel for the respondents, the amended provision introduced by the Validation Act 2014 has no application to the present case. This contention is founded on the interpretation of the expression leasehold rights of the Textile Undertaking. It is argued that this expression pre¬ supposes that there must be an existing or subsisting leasehold rights. Only such right would be governed by the amended provision. To buttress this submission, reliance is placed on Section 4 of the 1995 Act which explicitly adverts to different types of rights enjoyed by the Textile Undertaking. Leaseholds is one such right separately noted. Since there was no subsisting leasehold right enuring in favour of Podar Mills, inevitably no such right vested in the Central Government. Whereas, the right transferred to and vested in the Central Government under sub-section (1) is only that of a protected or statutory tenant enjoyed by Podar Mills at the relevant time i.e. 1 st April, 1994. That right vested in the Central Government is not saved in terms of sub¬section (3). Resultantly, the right of a protected or statutory tenant vested in Central Government stood transferred to and vested in NTC in terms of sub-section (2) and continued to remain so vested in the NTC. If so, the relief of eviction or possession could be pursued by the Trust only against NTC. Further, admittedly, NTC did not enjoy the status of a statutory or protected tenant after coming into force of the 1999 Act and repeal of the 1947 Act. In that situation, the subject suit for possession against the appellant NTC came to be justly filed before the civil court under the provisions of the Transfer of Property Act39. This argument, in our opinion, is an attempt to over¬ simplify the purport of Section 3(3), if not indulging in hair¬ splitting of the contextual meaning of the expression leasehold rights therein and in Section 4(1) or elsewhere in the 1995 Act. Section 3(1) refers to right, title and interest of the owner of the Textile Undertaking generally. That encompasses all the rights as are spelt out in Section 4(1) of the Act. One such right can be leasehold rights. Concededly, the expression leasehold rights mentioned in the 1995 Act must be construed as referring to the rights under the Transfer of Property Act, 1882 as well as under the applicable Rent Act recognizing tenancy rights without exception.41. Indeed, if the matter in issue is to be decided dehors the provisions of the applicable Rent Act, then it is possible to say that the expression leasehold rights would be limited to a subsisting lease. However, in the present case, we are required to reckon the status of the Union of India and NTC qua the suit property in the context of the rights accrued in terms of the provision of the Rent Act of 1947 and 1999, respectively. The expression leasehold rights in 1995 Act, obviously, must receive wider meaning so as to encompass tenancy rights flowing from the applicable Rent Act. For, the expression tenancy rights accruing under the Rent Act is analogous to and interchangeable with the expression leasehold rights. There is no reason to exclude the expression statutory right so enjoyed by the owners of the Textile Undertaking from the expression leasehold rights referred to in sub¬section (3), so long as it has not been so expressly excluded42. Considering the legislative intent for enacting the 1995 Act and the Validation Act 2014 also, it is not possible to give a restricted meaning to the expression leasehold rights occurring in sub-section (3) of Section 3, as amended, or elsewhere in the said enactment. Thus, the expression leasehold rights in 1995 Act must include tenancy rights flowing from the provisions of the applicable rent legislation. Any other interpretation would be doing violence to the legislative intent and be a pedantic approach43. According to the respondents, the status of Podar Mills and resultantly, of the Union of India is that of a tenant at sufferance. We have already adverted to the provisions of the concerned Rent Act. From the scheme of the 1947 Act as also in the 1999 Act, it is indisputable that after determination of the lease period, the status of Podar Mills had become that of a protected or statutory tenant under the Rent Act. Thus, it would continue to enjoy tenancy rights stipulated under the concerned Rent Act. Once that status has been acquired by the Central Government by operation of law, the action of eviction, could be only as per the prescribed dispensation under the concerned Rent Act45. In the present case, admittedly, the Trust proceeded on a clear understanding that the rights enjoyed by Podar Mills Ltd. after determination of lease period was that of a protected or statutory tenant within the meaning of the rent legislation (1947 Act). That right had been transferred to and vested in the Central Government by virtue of Section 3(1) of the 1995 Act and continues to so vest in it in terms of Section 3(3) which had come into force w.e.f. 1 st April, 1994 and deemed always to have effect for all purposes as if it had been in force at all material timesWe fail to understand as to how the principle expounded in the reported decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents. | 1 | 19,125 | 3,844 | ### Instruction:
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decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction. 48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government. 49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open. 50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents.
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in the reported decision will be of any avail to the respondents (Trust). As already noted, it is not a case of subletting by the statutory tenant (Podar Mills Ltd.) but instead a case of involuntary transfer and vesting of rights and interest of the statutory or protected tenant in respect of the suit property in the Central Government by operation of law. In any case, if the Trust intends to proceed against the statutory tenant on the ground of unlawful subletting or such other ground, it will be obliged to initiate eviction proceedings against the Union of India before the competent jurisdictional Rent Court on that count. In the present case, the subject suit for eviction has been instituted against NTC only. Suffice it to observe that the subject suit not having been filed against the Union of India, the statutory tenant as on the date of filing of the suit; and not invoking the jurisdiction of the Rent Court for seeking eviction of the statutory tenant, the decree as passed by the civil court is rendered unenforceable against the Union of India and, in any case, inexecutable due to legal fiction48. The respondents (Trust) may be justified in pointing out that the judgment and decree rendered by this Court has not been nullified by the Validation Act 2014 as such. However, the said decree is not against the real tenant in whom the rights of the statutory tenant had vested and continue to vest. That right could be snapped only by resorting to the dispensation prescribed for in the rent legislation, as the concerned Rent Act continued to apply to the suit property – consequent to vesting of the rights and interest therein in the Central Government49. That takes us to the next argument of the respondents that Section 39 inserted in the 1995 Act operates prospectively and would not impact the judgment delivered by this Court on 5 th September, 2011. Second, the said provision applies to only subsisting leasehold rights. Taking the last argument first, the same needs to be rejected on the basis of the view already taken by us that the expression leasehold rights or leasehold property would include tenancy rights or tenanted property in occupation of a statutory or protected tenant as per the applicable municipal rent legislation at the relevant time. Be that as it may, Section 39 opens with a non obstante clause and makes it more explicit that the provisions of the Amendment Act, 2014 shall have and shall be deemed always to have effect for all purposes as if the provisions of the Act have been amended by the said Act, had been in force at all material times. It then predicates that no suit or other proceedings shall be maintained or continued in any court for the enforcement of any decree or order or direction notwithstanding any undertaking filed by the NTC in any court. Having observed that Section 3 has been amended w.e.f. 1 st April, 1994 and upon giving full effect to the amendment, it must necessarily follow that the Central Government had acquired the status of protected or statutory tenant qua the suit property from that date and continue to remain so, and could be evicted only in the manner prescribed by the concerned rent legislation. The decree passed against NTC is on the assumption that the 1999 Act had no application to the suit property as the right had vested in NTC – which did not enjoy the protection of the 1999 Act. Resultantly, it must follow that the subject suit and the proceedings arising from or in relation thereto cannot proceed in law and moreso because NTC is not the real tenant. Further, as the tenancy rights in relation to the suit property continue to vest in the Central Government by operation of law, the provisions of the 1999 Act will be attracted, warranting suit for eviction to be filed against the Union of India before the jurisdictional Rent Court having exclusive jurisdiction to decide the dispute between the landlord and tenant. We must hasten to add that the validity of the provisions of the Validation Act 2014 is not put in issue in the present proceedings and we do not intend to deal with the same. All questions in that behalf are kept open50. Reliance was placed on State of Tamil Nadu Vs. State of Kerala and Another (2014) 12 SCC 696 , (in paragraph Nos. 127, 148 and 149) to buttress the argument that a judicial decision rendered by recording a finding of fact cannot be made ineffective by enacting a validating law, thereby fundamentally altering or changing its character retrospectively. On a bare perusal of relevant paragraphs of this decision, the Court unambiguously found that the judgment was given by this Court in the context of disputed factual position between the two States in respect of the safety of a Dam for raising the water level. The Court went on to observe that such decision must be binding upon the parties and enforceable according to the decision being a plain and simple decision on the fact 10 (2014) 12 SCC 696 which cannot be altered by the legislative decision. In that case, the validity of the amended Act was put in issue. In the present case, however, we are not called upon to examine the validity of the provisions of the Validation Act 2014.Whether such a legislation is valid or in excess of legislative competence can be examined in an appropriate proceeding. It is open to the respondents (Trust) to challenge the validity of the Validation Act 2014, if they so desire. For the same reason, the decisions in Madan Mohan Pathak and Ors. Vs. Union of India (UOI) and Ors.(2014) 12 SCC 696 ( in paragraph Nos. 9, 20, 21 and 31) and Shri Prithvi Cotton Mills Ltd. and Ors. Vs. Broach Borough Municipality and Ors (1969) 2 SCC 283 , will be of no avail to the respondents.
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Pandharinath Vs. State of Maharashtra | under Sections 376 IPC. When the charge was explained to the accused, he pleaded not guilty and claimed to be tried.3. During the course of the trial, 9 witnesses were examined on behalf of the prosecution. Two defence witnesses, namely, Dr. Avinash Wase (D.W. 1) and one Ku. Ranjana (D.W. 2) were also examined. The learned trial court thereafter heard the counsel appearing for the parties and then passed an order of conviction against the appellant holding him guilty of the offence under Section 376 IPC and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- and in default to suffer rigorous imprisonment for six months.4. Aggrieved by the said decision of the trial court, an appeal was preferred in the High Court. The High Court by its Judgment and Order dated 31.01.2003 held the appellant guilty under Section 511 of the IPC for the offence of attempt to commit rape and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-.5. Being aggrieved by the aforesaid judgment and order of conviction and sentence, the accused-appellant filed the present appeal in this Court by way of special leave. We heard the learned senior counsel appearing for the appellant and have also perused the records available before us. 6. Mrs. Anagha A. Desai, the learned counsel appearing for the appellant vehemently contended, inter alia, that there are serious contradictions in the statement of the prosecution witnesses. It was submitted that there were many other witnesses present at the time of commission of offence at the place of occurrence who were not examined by the prosecution. It was contended that there is failure on the part of prosecution for not examining even the husband of the prosecutrix. It was further submitted that the medical evidence does not support the statement of the prosecutrix that there was a rape on her by the accused although the doctor examined the prosecutrix on very next day.7. In view of the aforesaid submissions, we have examined the records of the case. The trial court and the High Court have given a concurrent finding that the appellant is guilty. The trial court was of the view that the appellant is liable to convicted under Section 376 IPC. The High Court, however, held the appellant guilty of the offence under Section 376 IPC read with Section 511 of the IPC. There is no dispute to the basic fact that the prosecutrix was a major and not a minor. Even if we accept the contention of the counsel appearing for the appellant that no offence under Section 376 is proved in the instant case on the basis of the evidence on record, it is definitely a case of commission of the offence of attempting to rape. The prosecutrix has clearly stated in her examination in chief that on waking up she found the accused-appellant sitting near her legs and the accused-appellant removed her under garments and gagged her mouth. Subsequently, the accused-appellant felt sorry for the incident and also apologized for the same. There is no suggestion in the cross-examination on the part of the accused to the aforesaid statement of the prosecutrix that the accused did not remove her cloth. She had categorically stated in her examination-in-chief that the accused had removed her clothes. The accused-appellant had also stated that the prosecutrix should forgive him for his acts against which no suggestion was put to the effect that he did not seek such an apology. If the accused-appellant had removed her clothes and he had not rebutted this statement of the prosecutrix in his examination-in-chief, it is definitely a case of attempt to rape.8. It is well settled legal position that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed. Reference in this regard may be made to the decision of this Court in State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386 ; and Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560. 9. It is true that there was no charge under Section 376 read with Section 511 IPC. However, under Section 222 of the CrPC when a person is charged for an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged. This Court in Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 had an occasion to deal with Section 222 of the CrPC. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The Court observed as follows in relevant para: "16. What is meant by `a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence." 10. So, if it appears to the Court that Section 376 IPC is not applicable but a lesser offence under 376 read with 511 IPC is made out, the court is not prevented from taking recourse to and punishing the accused for the commission of such lesser offence. The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of the accused from Section 376 to Section 511. | 0[ds]The trial court and the High Court have given a concurrent finding that the appellant is guilty. The trial court was of the view that the appellant is liable to convicted under Section 376 IPC. The High Court, however, held the appellant guilty of the offence under Section 376 IPC read with Section 511 of the IPC. There is no dispute to the basic fact that the prosecutrix was a major and not a minor. Even if we accept the contention of the counsel appearing for the appellant that no offence under Section 376 is proved in the instant case on the basis of the evidence on record, it is definitely a case of commission of the offence of attempting to rape. The prosecutrix has clearly stated in her examination in chief that on waking up she found the accused-appellant sitting near her legs and the accused-appellant removed her under garments and gagged her mouth. Subsequently, the accused-appellant felt sorry for the incident and also apologized for the same. There is no suggestion in the cross-examination on the part of the accused to the aforesaid statement of the prosecutrix that the accused did not remove her cloth. She had categorically stated in her examination-in-chief that the accused had removed her clothes. The accused-appellant had also stated that the prosecutrix should forgive him for his acts against which no suggestion was put to the effect that he did not seek such an apology. If the accused-appellant had removed her clothes and he had not rebutted this statement of the prosecutrix in his examination-in-chief, it is definitely a case of attempt to rape.8. It is well settled legal position that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed.So, if it appears to the Court that Section 376 IPC is not applicable but a lesser offence under 376 read with 511 IPC is made out, the court is not prevented from taking recourse to and punishing the accused for the commission of such lesser offence. The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of the accused from Section 376 to Section 511.It is true that there was no charge under Section 376 read with Section 511 IPC. However, under Section 222 of the CrPC when a person is charged for an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged. This Court in Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 had an occasion to deal with Section 222 of the CrPC. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The Court observed as follows in relevantWhat is meant by `a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence, if it appears to the Court that Section 376 IPC is not applicable but a lesser offence under 376 read with 511 IPC is made out, the court is not prevented from taking recourse to and punishing the accused for the commission of such lesser offence. The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of the accused from Section 376 to Section 511. | 0 | 1,671 | 726 | ### Instruction:
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under Sections 376 IPC. When the charge was explained to the accused, he pleaded not guilty and claimed to be tried.3. During the course of the trial, 9 witnesses were examined on behalf of the prosecution. Two defence witnesses, namely, Dr. Avinash Wase (D.W. 1) and one Ku. Ranjana (D.W. 2) were also examined. The learned trial court thereafter heard the counsel appearing for the parties and then passed an order of conviction against the appellant holding him guilty of the offence under Section 376 IPC and sentenced him to suffer rigorous imprisonment for five years and to pay a fine of Rs. 1,000/- and in default to suffer rigorous imprisonment for six months.4. Aggrieved by the said decision of the trial court, an appeal was preferred in the High Court. The High Court by its Judgment and Order dated 31.01.2003 held the appellant guilty under Section 511 of the IPC for the offence of attempt to commit rape and sentenced him to rigorous imprisonment for one year and to pay a fine of Rs. 1,000/-.5. Being aggrieved by the aforesaid judgment and order of conviction and sentence, the accused-appellant filed the present appeal in this Court by way of special leave. We heard the learned senior counsel appearing for the appellant and have also perused the records available before us. 6. Mrs. Anagha A. Desai, the learned counsel appearing for the appellant vehemently contended, inter alia, that there are serious contradictions in the statement of the prosecution witnesses. It was submitted that there were many other witnesses present at the time of commission of offence at the place of occurrence who were not examined by the prosecution. It was contended that there is failure on the part of prosecution for not examining even the husband of the prosecutrix. It was further submitted that the medical evidence does not support the statement of the prosecutrix that there was a rape on her by the accused although the doctor examined the prosecutrix on very next day.7. In view of the aforesaid submissions, we have examined the records of the case. The trial court and the High Court have given a concurrent finding that the appellant is guilty. The trial court was of the view that the appellant is liable to convicted under Section 376 IPC. The High Court, however, held the appellant guilty of the offence under Section 376 IPC read with Section 511 of the IPC. There is no dispute to the basic fact that the prosecutrix was a major and not a minor. Even if we accept the contention of the counsel appearing for the appellant that no offence under Section 376 is proved in the instant case on the basis of the evidence on record, it is definitely a case of commission of the offence of attempting to rape. The prosecutrix has clearly stated in her examination in chief that on waking up she found the accused-appellant sitting near her legs and the accused-appellant removed her under garments and gagged her mouth. Subsequently, the accused-appellant felt sorry for the incident and also apologized for the same. There is no suggestion in the cross-examination on the part of the accused to the aforesaid statement of the prosecutrix that the accused did not remove her cloth. She had categorically stated in her examination-in-chief that the accused had removed her clothes. The accused-appellant had also stated that the prosecutrix should forgive him for his acts against which no suggestion was put to the effect that he did not seek such an apology. If the accused-appellant had removed her clothes and he had not rebutted this statement of the prosecutrix in his examination-in-chief, it is definitely a case of attempt to rape.8. It is well settled legal position that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed. Reference in this regard may be made to the decision of this Court in State of Maharashtra v. Rajendra Jawanmal Gandhi, (1997) 8 SCC 386 ; and Tarkeshwar Sahu v. State of Bihar, (2006) 8 SCC 560. 9. It is true that there was no charge under Section 376 read with Section 511 IPC. However, under Section 222 of the CrPC when a person is charged for an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged. This Court in Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 had an occasion to deal with Section 222 of the CrPC. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The Court observed as follows in relevant para: "16. What is meant by `a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence vis-a-vis the other offence." 10. So, if it appears to the Court that Section 376 IPC is not applicable but a lesser offence under 376 read with 511 IPC is made out, the court is not prevented from taking recourse to and punishing the accused for the commission of such lesser offence. The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of the accused from Section 376 to Section 511.
### Response:
0
### Explanation:
The trial court and the High Court have given a concurrent finding that the appellant is guilty. The trial court was of the view that the appellant is liable to convicted under Section 376 IPC. The High Court, however, held the appellant guilty of the offence under Section 376 IPC read with Section 511 of the IPC. There is no dispute to the basic fact that the prosecutrix was a major and not a minor. Even if we accept the contention of the counsel appearing for the appellant that no offence under Section 376 is proved in the instant case on the basis of the evidence on record, it is definitely a case of commission of the offence of attempting to rape. The prosecutrix has clearly stated in her examination in chief that on waking up she found the accused-appellant sitting near her legs and the accused-appellant removed her under garments and gagged her mouth. Subsequently, the accused-appellant felt sorry for the incident and also apologized for the same. There is no suggestion in the cross-examination on the part of the accused to the aforesaid statement of the prosecutrix that the accused did not remove her cloth. She had categorically stated in her examination-in-chief that the accused had removed her clothes. The accused-appellant had also stated that the prosecutrix should forgive him for his acts against which no suggestion was put to the effect that he did not seek such an apology. If the accused-appellant had removed her clothes and he had not rebutted this statement of the prosecutrix in his examination-in-chief, it is definitely a case of attempt to rape.8. It is well settled legal position that if an accused is charged of a major offence but is not found guilty thereunder, he can be convicted of minor offence, if the facts established indicate that such minor offence has been committed.So, if it appears to the Court that Section 376 IPC is not applicable but a lesser offence under 376 read with 511 IPC is made out, the court is not prevented from taking recourse to and punishing the accused for the commission of such lesser offence. The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of the accused from Section 376 to Section 511.It is true that there was no charge under Section 376 read with Section 511 IPC. However, under Section 222 of the CrPC when a person is charged for an offence he may be convicted of an attempt to commit such offence although the attempt is not separately charged. This Court in Shamnsaheb M. Multtani v. State of Karnataka, (2001) 2 SCC 577 had an occasion to deal with Section 222 of the CrPC. The Court came to the conclusion that when an accused is charged with a major offence and if the ingredients of major offence are not proved, the accused can be convicted for minor offence, if ingredients of minor offence are available. The Court observed as follows in relevantWhat is meant by `a minor offence for the purpose of Section 222 of the Code? Although the said expression is not defined in the Code it can be discerned from the context that the test of minor offence is not merely that the prescribed punishment is less than the major offence. The two illustrations provided in the section would bring the above point home well. Only if the two offences are cognate offences, wherein the main ingredients are common, the one punishable among them with a lesser sentence can be regarded as minor offence, if it appears to the Court that Section 376 IPC is not applicable but a lesser offence under 376 read with 511 IPC is made out, the court is not prevented from taking recourse to and punishing the accused for the commission of such lesser offence. The attempt to commit rape is lesser offence than that of rape, and there is no bar of converting the act of the accused from Section 376 to Section 511.
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Roxann Sharma Vs. Arun Sharma | "ordinarily" cannot be over-emphasised. It ordains a presumption, albeit a rebuttable one, in favour of the mother. The learned Single Judge appears to have lost sight of the significance of the use of word "ordinarily" inasmuch as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment. 10. We shall now consider the relevance of the precedents cited before us by the learned Senior Counsel for the Father. In Sarita Sharma vs. Sushil Sharma (2000) 3 SCC 14 , in defiance of the orders passed by the Jurisdictional Court in the U.S., the mother, Sarita, had returned to India with two children from their matrimonial relationship. The High Court viewed that the divorce decree and custodial directions having emanated from a competent Court deserve to be honoured, and accordingly allowed the Habeas Corpus Petition and directed the mother to return the custody of the children to the father, Sushil. This Court was not persuaded that further consideration by Courts in India as to whether the interests of the children, which were paramount, stood foreclosed and could not be cogitated upon again. As regards Section 6 of the HMG Act, it opined that although it constitutes the Father as a natural guardian of a minor son it could not be considered as superseding its paramount consideration as to what is conducive to the welfare of the minor. These observations were reiterated and this Court reversed the decision of the High Court holding that the interests and welfare of the children dictated that the custody should be with their mother. This case, therefore, militates against the legal and factual position which the Father seeks to essay before us. It is also important to underscore the fact that both the children were over the age of five, a fortiori, the custody should not have been reversed in the case in hand by the High Court from the Mother to the Father since Thalbir was then around one year old and is presently still less than three years old. 11. Learned Senior Counsel has next drawn our attention to Mausami Moitra Ganguli vs. Jayant Ganguli, (2008) 7 SCC 673. In this case also, this Court was confronted with the custody conflict over 10 year male child. We must be quick to point out that the Court did not consider Section 6 of the HMG Act after detailing the factors which were indicative of the position that the welfare of the child lies with continuing the custody with the father, this Court dismissed the mothers appeal. The facts are totally distinguishable. The ratio continues to be that it is the welfare of a minor which has paramount importance. 12. The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother. Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this Section or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latters crossing the age of five years.13. We must not lose sight of the fact that our reflections must be restricted to aspects that are relevant for the granting of interim custody of an infant. The Trial is still pending. The learned Single Judge in the Impugned Order has rightly taken note of the fact that the Mother was holding a Tenured College Professorship, was a post-graduate from the renowned Haward University, receiving a regular salary. Whether she had a Bi-polar personality which made her unsuitable for interim custody of her infant son Thalbir had not been sufficiently proved. In the course of present proceedings it has been disclosed that the Father has only passed High School and is not even a graduate. It has also not been denied or disputed before us that he had undergone drug rehabilitation and that he was the member of Narcotics Anonymous. This is compounded by the fact that he is not in regular employment or has independent income. As on date he is not an Income tax assessee although he has claimed to have earned Rupees 40,000 to 50,000 per month in the past three years. We must again clarify that the fathers suitability to custody is not relevant where the child whose custody is in dispute is below five years since the mother is per se best suited to care for the infant during his tender age. It is for the Father to plead and prove the Mothers unsuitability since Thalbir is below five years of age. In these considerations the fathers character and background will also become relevant but only once the Court strongly and firmly doubts the mothers suitability; only then and even then would the comparative characteristic of the parents come into play. This approach has not been adopted by the learned Single Judge, whereas it has been properly pursued by the learned Civil Judge. | 1[ds]7. The Guardianship postulates control over both the person as well as the assets of a minor or of one and not the other. This is obvious from a reading of the definitions contained in Section 4 (2) of the Guardians & Wards Act, 1890 (G&W Act) and Section 4(b) of the HMG Act which clarifies that "Guardian" means a person having the care of the person of a minor or of his property or of both his person and property. Section 9 contemplates the filing of an application in respect of the guardianship of the person of the minor and Section 10 specifies the form of that application. Section 12 deals with the power to make interlocutory order for protection of the minor and interim protection of his person and property. Section 14 is of importance as its tenor indicates that these controversies be decided by one court, on the lines of Section 10 of the CPC which imparts preference of jurisdiction to the first court. Section 17 gives primacy to the welfare of the minor. Sub section 2 thereof enjoins the court to give due consideration to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor. Since Thalbir is of a very tender age, the advisability of determining his wishes is not relevant at the present stage; he is not old enough to form an intelligent reference. Section 25 covers the custody of a ward being removed from the custody of the guardian of his person, and adumbrates that if the Court is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian shall make an order of hislearned Single Judge appears to have lost sight of the significance of the use of word "ordinarily" inasmuch as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother. Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this Section or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latters crossing the age of five years.13. We must not lose sight of the fact that our reflections must be restricted to aspects that are relevant for the granting of interim custody of an infant. The Trial is still pending. The learned Single Judge in the Impugned Order has rightly taken note of the fact that the Mother was holding a Tenured College Professorship, was a post-graduate from the renowned Haward University, receiving a regular salary. Whether she had a Bi-polar personality which made her unsuitable for interim custody of her infant son Thalbir had not been sufficiently proved. In the course of present proceedings it has been disclosed that the Father has only passed High School and is not even a graduate. It has also not been denied or disputed before us that he had undergone drug rehabilitation and that he was the member of Narcotics Anonymous. This is compounded by the fact that he is not in regular employment or has independent income. As on date he is not an Income tax assessee although he has claimed to have earned Rupees 40,000 to 50,000 per month in the past three years. We must again clarify that the fathers suitability to custody is not relevant where the child whose custody is in dispute is below five years since the mother is per se best suited to care for the infant during his tender age. It is for the Father to plead and prove the Mothers unsuitability since Thalbir is below five years of age. In these considerations the fathers character and background will also become relevant but only once the Court strongly and firmly doubts the mothers suitability; only then and even then would the comparative characteristic of the parents come into play. This approach has not been adopted by the learned Single Judge, whereas it has been properly pursued by the learned Civil Judge.We transfer the temporary custody of Thalbir to the Appellant/Mother with the direction that both of them shall reside in the address given by her, viz, House No.80, Magnolia, Ground Floor, Bin Waddo, Betalbatim, Goa and will not leave that territorial jurisdiction of the Trial Court without prior leave. We further direct that the Respondent/Father shall have visitation rights between 2.30 p.m. and 6.00 p.m. on every Tuesday and Thursday, and from 2.30 p.m. to 9.00 p.m. on Saturdays. These Orders are purely temporary in nature. The Civil Judge should decide the Petition/application pending before him with expedition, as directed by the High Court, without being influenced by any observations made by us hereinabove.21. After carefully reading the Reports of the Social Worker, Mrs. Deepali Ajay Satpute, we find it necessary to direct Mr. Arun Sharma, Father to neither directly nor indirectly through any member of his family or his friends, to communicate in any manner or to meet the Social Worker, Mrs. Deepali Ajay Satpute. This is in deference to the apprehensions that she has felt and expressed to the Court as a consequence of conversations of the Respondent and his Mother with her pertaining to her as well as the safety of her own son. In the event of the Social Worker seeking Police Protection to her and family, the Station House Officer of the concerned Police Station shall immediately provide the same and we direct so. | 1 | 3,221 | 1,205 | ### 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:
"ordinarily" cannot be over-emphasised. It ordains a presumption, albeit a rebuttable one, in favour of the mother. The learned Single Judge appears to have lost sight of the significance of the use of word "ordinarily" inasmuch as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment. 10. We shall now consider the relevance of the precedents cited before us by the learned Senior Counsel for the Father. In Sarita Sharma vs. Sushil Sharma (2000) 3 SCC 14 , in defiance of the orders passed by the Jurisdictional Court in the U.S., the mother, Sarita, had returned to India with two children from their matrimonial relationship. The High Court viewed that the divorce decree and custodial directions having emanated from a competent Court deserve to be honoured, and accordingly allowed the Habeas Corpus Petition and directed the mother to return the custody of the children to the father, Sushil. This Court was not persuaded that further consideration by Courts in India as to whether the interests of the children, which were paramount, stood foreclosed and could not be cogitated upon again. As regards Section 6 of the HMG Act, it opined that although it constitutes the Father as a natural guardian of a minor son it could not be considered as superseding its paramount consideration as to what is conducive to the welfare of the minor. These observations were reiterated and this Court reversed the decision of the High Court holding that the interests and welfare of the children dictated that the custody should be with their mother. This case, therefore, militates against the legal and factual position which the Father seeks to essay before us. It is also important to underscore the fact that both the children were over the age of five, a fortiori, the custody should not have been reversed in the case in hand by the High Court from the Mother to the Father since Thalbir was then around one year old and is presently still less than three years old. 11. Learned Senior Counsel has next drawn our attention to Mausami Moitra Ganguli vs. Jayant Ganguli, (2008) 7 SCC 673. In this case also, this Court was confronted with the custody conflict over 10 year male child. We must be quick to point out that the Court did not consider Section 6 of the HMG Act after detailing the factors which were indicative of the position that the welfare of the child lies with continuing the custody with the father, this Court dismissed the mothers appeal. The facts are totally distinguishable. The ratio continues to be that it is the welfare of a minor which has paramount importance. 12. The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother. Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this Section or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latters crossing the age of five years.13. We must not lose sight of the fact that our reflections must be restricted to aspects that are relevant for the granting of interim custody of an infant. The Trial is still pending. The learned Single Judge in the Impugned Order has rightly taken note of the fact that the Mother was holding a Tenured College Professorship, was a post-graduate from the renowned Haward University, receiving a regular salary. Whether she had a Bi-polar personality which made her unsuitable for interim custody of her infant son Thalbir had not been sufficiently proved. In the course of present proceedings it has been disclosed that the Father has only passed High School and is not even a graduate. It has also not been denied or disputed before us that he had undergone drug rehabilitation and that he was the member of Narcotics Anonymous. This is compounded by the fact that he is not in regular employment or has independent income. As on date he is not an Income tax assessee although he has claimed to have earned Rupees 40,000 to 50,000 per month in the past three years. We must again clarify that the fathers suitability to custody is not relevant where the child whose custody is in dispute is below five years since the mother is per se best suited to care for the infant during his tender age. It is for the Father to plead and prove the Mothers unsuitability since Thalbir is below five years of age. In these considerations the fathers character and background will also become relevant but only once the Court strongly and firmly doubts the mothers suitability; only then and even then would the comparative characteristic of the parents come into play. This approach has not been adopted by the learned Single Judge, whereas it has been properly pursued by the learned Civil Judge.
### Response:
1
### Explanation:
order for protection of the minor and interim protection of his person and property. Section 14 is of importance as its tenor indicates that these controversies be decided by one court, on the lines of Section 10 of the CPC which imparts preference of jurisdiction to the first court. Section 17 gives primacy to the welfare of the minor. Sub section 2 thereof enjoins the court to give due consideration to the age, sex and religion of the minor, the character and capacity of the proposed guardian and his nearness of kin to the minor. Since Thalbir is of a very tender age, the advisability of determining his wishes is not relevant at the present stage; he is not old enough to form an intelligent reference. Section 25 covers the custody of a ward being removed from the custody of the guardian of his person, and adumbrates that if the Court is of the opinion that it will be for the welfare of the ward to return to the custody of his guardian shall make an order of hislearned Single Judge appears to have lost sight of the significance of the use of word "ordinarily" inasmuch as he has observed in paragraph 13 of the Impugned Order that the Mother has not established her suitability to be granted interim custody of Thalbir who at that point in time was an infant. The proviso places the onus on the father to prove that it is not in the welfare of the infant child to be placed in the custody of his/her mother. The wisdom of the Parliament or the Legislature should not be trifled away by a curial interpretation which virtually nullifies the spirit of the enactment.The HMG Act postulates that the custody of an infant or a tender aged child should be given to his/her mother unless the father discloses cogent reasons that are indicative of and presage the livelihood of the welfare and interest of the child being undermined or jeopardised if the custody retained by the mother. Section 6(a) of HMG Act, therefore, preserves the right of the father to be the guardian of the property of the minor child but not the guardian of his person whilst the child is less than five years old. It carves out the exception of interim custody, in contradistinction of guardianship, and then specifies that custody should be given to the mother so long as the child is below five years in age. We must immediately clarify that this Section or for that matter any other provision including those contained in the G&W Act, does not disqualify the mother to custody of the child even after the latters crossing the age of five years.13. We must not lose sight of the fact that our reflections must be restricted to aspects that are relevant for the granting of interim custody of an infant. The Trial is still pending. The learned Single Judge in the Impugned Order has rightly taken note of the fact that the Mother was holding a Tenured College Professorship, was a post-graduate from the renowned Haward University, receiving a regular salary. Whether she had a Bi-polar personality which made her unsuitable for interim custody of her infant son Thalbir had not been sufficiently proved. In the course of present proceedings it has been disclosed that the Father has only passed High School and is not even a graduate. It has also not been denied or disputed before us that he had undergone drug rehabilitation and that he was the member of Narcotics Anonymous. This is compounded by the fact that he is not in regular employment or has independent income. As on date he is not an Income tax assessee although he has claimed to have earned Rupees 40,000 to 50,000 per month in the past three years. We must again clarify that the fathers suitability to custody is not relevant where the child whose custody is in dispute is below five years since the mother is per se best suited to care for the infant during his tender age. It is for the Father to plead and prove the Mothers unsuitability since Thalbir is below five years of age. In these considerations the fathers character and background will also become relevant but only once the Court strongly and firmly doubts the mothers suitability; only then and even then would the comparative characteristic of the parents come into play. This approach has not been adopted by the learned Single Judge, whereas it has been properly pursued by the learned Civil Judge.We transfer the temporary custody of Thalbir to the Appellant/Mother with the direction that both of them shall reside in the address given by her, viz, House No.80, Magnolia, Ground Floor, Bin Waddo, Betalbatim, Goa and will not leave that territorial jurisdiction of the Trial Court without prior leave. We further direct that the Respondent/Father shall have visitation rights between 2.30 p.m. and 6.00 p.m. on every Tuesday and Thursday, and from 2.30 p.m. to 9.00 p.m. on Saturdays. These Orders are purely temporary in nature. The Civil Judge should decide the Petition/application pending before him with expedition, as directed by the High Court, without being influenced by any observations made by us hereinabove.21. After carefully reading the Reports of the Social Worker, Mrs. Deepali Ajay Satpute, we find it necessary to direct Mr. Arun Sharma, Father to neither directly nor indirectly through any member of his family or his friends, to communicate in any manner or to meet the Social Worker, Mrs. Deepali Ajay Satpute. This is in deference to the apprehensions that she has felt and expressed to the Court as a consequence of conversations of the Respondent and his Mother with her pertaining to her as well as the safety of her own son. In the event of the Social Worker seeking Police Protection to her and family, the Station House Officer of the concerned Police Station shall immediately provide the same and we direct so.
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A.P.M. Mayankutty, Etc Vs. Secretary, Public Service Department | in accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, otherwise than in accordance with the said rules." This provision contemplates the making of temporary appointments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately. Such appointments, in terms, are permitted to be made otherwise than in accordance with the rules. The letters of appointment issued to the appellants mention expressly that they were appointed under Rule 10(a)(i)(1), that the appointments were "purely temporary necessiated on account of the non-availability of regularly selected candidates conferring no claims for future appointment as Junior Engineers .... and that the appointment is liable to be terminated at any time without previous notice." In face of the provisions of the rule and the terms of the appointment it seems to us clear that the appellants were appointed purely as a matter of stop-gap or emergency arrangement. Since such service cannot be taken into account for purposes of seniority, the appellants cannot contend that the entire service rendered by them from the date of their initial appointment must count for purposes of seniority. 8. Clause (iii) of Rule 10(a) makes this position clearer by providing that a person appointed under cl. (i) shall, whether or not he possesses the qualifications prescribed for the service, be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the relevant rules. The fact that the appellants, were qualified to hold the posts cannot, therefore, entitled them to count for the purposes of seniority the period during which they served in a stop-gap or emergency arrangement. Clause (v) of Rule 10(a) provides that a person appointed under cl. (i) shall not be regarded as a probationer, that he is not entitled by reason only of such appointment to any preferential claim to future appointment to the service and that the services shall be liable to be terminated at any time without notice and without assigning any reason. These provisions reflect significantly on the nature of the appointment held by the appellants and show that the precarious tenure. Such tenures hardly ever count for seniority in any system of service jurisprudence. 9. It is now only necessary to consider the appellants argument that has they remained in Madras, their entire service would have counted for purposes of seniority. In support of this argument reliance was placed on the correspondence between the Government of Kerala and Madras, but neither that correspondence nor a certain order dated June, 11, 1960, which is at Ext. P. 17, in the record, can avail the appellant. In a way of saying, the proof of the pudding is in the eating. It is needless to speculate as to what course the appellants destiny would have taken had they remained in Madras, because the Government of Madras itself did not treat the entire service of the appellants as regular when they were selected by the Public Service Commission. That parent Government undoubtedly assigned to them artificial dates for fixing the commencement of their probationary periods but such dates, though anterior to the dates of their actual selection by the Public Service Commission, were quite subsequent to the dates of their initial appointment. As stated earlier, the appellants were appointed initially in June, 1951 and June, 1950, but the Government of Madras, prior to the reorganisation of the States, had directed that their probationary periods should be deemed to commence in July, 1954 and March, 1953. This shows that the services rendered by the appellants under Rule 10(a)(i)(1) were treated by the Government which appointed them as a matter of stop-gap, emergency of fortuitous arrangements. 10. The decision in C. P. Damodaran Nayar v. State of Kerala, (1974) 2 S.C.R. 867, on which the appellants counsel has placed reliance for showing that temporary service of the kind rendered initially by the appellants can be counted for the purposes of seniority has no application to the instant case. One of the appellants in that case was selected as a District Munsif by the Madras Public Service Commission and was posted as such on May 26, 1951. He was in continuous service in that post since his appointment but on being allotted to the State of Kerala on November 1, 1956 his seniority was reckoned from October 6, 1951 on the footing that the said date was assigned to him as the date of commencement of his continuous service. Dealing with the appeal arising out of the dismissal of his writ petition, this Court held that the service rendered by the appellant after his initial appointment was neither emergency service nor was it a purely stop-gap or fortuitous arrangement. The distinguishing feature of that case, which is highlighted in the judgment of the Court, is that the appellant therein was "appointed in a regular manner through the Public Service Commission" and, therefore, his appointment could not "by any stretch of imagination" be described as having been made to fill a purely stop-gap or fortuitous vacuum (p. 876). In our case the initial appointment was not only made without any reference to the Public Service Commission but the various rules and the terms of the appellants appointment to which we have drawn attention show that the appellants were appointed purely as a matter of fortuitous or stop-gap arrangement. The concurrence of the Public Service Commission to the continuance of the appellants in the posts filled by them, first after the expiry of three months and then after the expiry of one year, was obtained not with a view to regularising the appointments since their inception but for the purpose of meeting the requirements of a provision under which such concurrence is necessary to obtain if an appointment made without selection by the Public Service Commission is required for any reason to be continued beyond three months or a year. | 0[ds]7. Having given every consideration to these matters we think it impossible to accept the appealIn face of the provisions of the rule and the terms of the appointment it seems to us clear that the appellants were appointed purely as a matter of stop-gap or emergency arrangement. Since such service cannot be taken into account for purposes of seniority, the appellants cannot contend that the entire service rendered by them from the date of their initial appointment must count for purposes of seniority8. Clause (iii) of Rule 10(a) makes this position clearer by providing that a person appointed under cl. (i) shall, whether or not he possesses the qualifications prescribed for the service, be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the relevant rules. The fact that the appellants, were qualified to hold the posts cannot, therefore, entitled them to count for the purposes of seniority the period during which they served in a stop-gap or emergency arrangement. Clause (v) of Rule 10(a) provides that a person appointed under cl. (i) shall not be regarded as a probationer, that he is not entitled by reason only of such appointment to any preferential claim to future appointment to the service and that the services shall be liable to be terminated at any time without notice and without assigning any reason. These provisions reflect significantly on the nature of the appointment held by the appellants and show that the precarious tenure. Such tenures hardly ever count for seniority in any system of service jurisprudenceIn a way of saying, the proof of the pudding is in the eating. It is needless to speculate as to what course the appellants destiny would have taken had they remained in Madras, because the Government of Madras itself did not treat the entire service of the appellants as regular when they were selected by the Public Service Commission. That parent Government undoubtedly assigned to them artificial dates for fixing the commencement of their probationary periods but such dates, though anterior to the dates of their actual selection by the Public Service Commission, were quite subsequent to the dates of their initial appointment. As stated earlier, the appellants were appointed initially in June, 1951 and June, 1950, but the Government of Madras, prior to the reorganisation of the States, had directed that their probationary periods should be deemed to commence in July, 1954 and March, 1953. This shows that the services rendered by the appellants under Rule 10(a)(i)(1) were treated by the Government which appointed them as a matter of stop-gap, emergency of fortuitous arrangements. In our case the initial appointment was not only made without any reference to the Public Service Commission but the various rules and the terms of the appellants appointment to which we have drawn attention show that the appellants were appointed purely as a matter of fortuitous or stop-gap arrangement. The concurrence of the Public Service Commission to the continuance of the appellants in the posts filled by them, first after the expiry of three months and then after the expiry of one year, was obtained not with a view to regularising the appointments since their inception but for the purpose of meeting the requirements of a provision under which such concurrence is necessary to obtain if an appointment made without selection by the Public Service Commission is required for any reason to be continued beyond three months or a year. | 0 | 2,599 | 651 | ### Instruction:
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in accordance with these rules and the Special Rules, the appointing authority may temporarily appoint a person, otherwise than in accordance with the said rules." This provision contemplates the making of temporary appointments when it is necessary in the public interest to do so owing to an emergency which has arisen for filling a vacancy immediately. Such appointments, in terms, are permitted to be made otherwise than in accordance with the rules. The letters of appointment issued to the appellants mention expressly that they were appointed under Rule 10(a)(i)(1), that the appointments were "purely temporary necessiated on account of the non-availability of regularly selected candidates conferring no claims for future appointment as Junior Engineers .... and that the appointment is liable to be terminated at any time without previous notice." In face of the provisions of the rule and the terms of the appointment it seems to us clear that the appellants were appointed purely as a matter of stop-gap or emergency arrangement. Since such service cannot be taken into account for purposes of seniority, the appellants cannot contend that the entire service rendered by them from the date of their initial appointment must count for purposes of seniority. 8. Clause (iii) of Rule 10(a) makes this position clearer by providing that a person appointed under cl. (i) shall, whether or not he possesses the qualifications prescribed for the service, be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the relevant rules. The fact that the appellants, were qualified to hold the posts cannot, therefore, entitled them to count for the purposes of seniority the period during which they served in a stop-gap or emergency arrangement. Clause (v) of Rule 10(a) provides that a person appointed under cl. (i) shall not be regarded as a probationer, that he is not entitled by reason only of such appointment to any preferential claim to future appointment to the service and that the services shall be liable to be terminated at any time without notice and without assigning any reason. These provisions reflect significantly on the nature of the appointment held by the appellants and show that the precarious tenure. Such tenures hardly ever count for seniority in any system of service jurisprudence. 9. It is now only necessary to consider the appellants argument that has they remained in Madras, their entire service would have counted for purposes of seniority. In support of this argument reliance was placed on the correspondence between the Government of Kerala and Madras, but neither that correspondence nor a certain order dated June, 11, 1960, which is at Ext. P. 17, in the record, can avail the appellant. In a way of saying, the proof of the pudding is in the eating. It is needless to speculate as to what course the appellants destiny would have taken had they remained in Madras, because the Government of Madras itself did not treat the entire service of the appellants as regular when they were selected by the Public Service Commission. That parent Government undoubtedly assigned to them artificial dates for fixing the commencement of their probationary periods but such dates, though anterior to the dates of their actual selection by the Public Service Commission, were quite subsequent to the dates of their initial appointment. As stated earlier, the appellants were appointed initially in June, 1951 and June, 1950, but the Government of Madras, prior to the reorganisation of the States, had directed that their probationary periods should be deemed to commence in July, 1954 and March, 1953. This shows that the services rendered by the appellants under Rule 10(a)(i)(1) were treated by the Government which appointed them as a matter of stop-gap, emergency of fortuitous arrangements. 10. The decision in C. P. Damodaran Nayar v. State of Kerala, (1974) 2 S.C.R. 867, on which the appellants counsel has placed reliance for showing that temporary service of the kind rendered initially by the appellants can be counted for the purposes of seniority has no application to the instant case. One of the appellants in that case was selected as a District Munsif by the Madras Public Service Commission and was posted as such on May 26, 1951. He was in continuous service in that post since his appointment but on being allotted to the State of Kerala on November 1, 1956 his seniority was reckoned from October 6, 1951 on the footing that the said date was assigned to him as the date of commencement of his continuous service. Dealing with the appeal arising out of the dismissal of his writ petition, this Court held that the service rendered by the appellant after his initial appointment was neither emergency service nor was it a purely stop-gap or fortuitous arrangement. The distinguishing feature of that case, which is highlighted in the judgment of the Court, is that the appellant therein was "appointed in a regular manner through the Public Service Commission" and, therefore, his appointment could not "by any stretch of imagination" be described as having been made to fill a purely stop-gap or fortuitous vacuum (p. 876). In our case the initial appointment was not only made without any reference to the Public Service Commission but the various rules and the terms of the appellants appointment to which we have drawn attention show that the appellants were appointed purely as a matter of fortuitous or stop-gap arrangement. The concurrence of the Public Service Commission to the continuance of the appellants in the posts filled by them, first after the expiry of three months and then after the expiry of one year, was obtained not with a view to regularising the appointments since their inception but for the purpose of meeting the requirements of a provision under which such concurrence is necessary to obtain if an appointment made without selection by the Public Service Commission is required for any reason to be continued beyond three months or a year.
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7. Having given every consideration to these matters we think it impossible to accept the appealIn face of the provisions of the rule and the terms of the appointment it seems to us clear that the appellants were appointed purely as a matter of stop-gap or emergency arrangement. Since such service cannot be taken into account for purposes of seniority, the appellants cannot contend that the entire service rendered by them from the date of their initial appointment must count for purposes of seniority8. Clause (iii) of Rule 10(a) makes this position clearer by providing that a person appointed under cl. (i) shall, whether or not he possesses the qualifications prescribed for the service, be replaced as soon as possible by a member of the service or an approved candidate qualified to hold the post under the relevant rules. The fact that the appellants, were qualified to hold the posts cannot, therefore, entitled them to count for the purposes of seniority the period during which they served in a stop-gap or emergency arrangement. Clause (v) of Rule 10(a) provides that a person appointed under cl. (i) shall not be regarded as a probationer, that he is not entitled by reason only of such appointment to any preferential claim to future appointment to the service and that the services shall be liable to be terminated at any time without notice and without assigning any reason. These provisions reflect significantly on the nature of the appointment held by the appellants and show that the precarious tenure. Such tenures hardly ever count for seniority in any system of service jurisprudenceIn a way of saying, the proof of the pudding is in the eating. It is needless to speculate as to what course the appellants destiny would have taken had they remained in Madras, because the Government of Madras itself did not treat the entire service of the appellants as regular when they were selected by the Public Service Commission. That parent Government undoubtedly assigned to them artificial dates for fixing the commencement of their probationary periods but such dates, though anterior to the dates of their actual selection by the Public Service Commission, were quite subsequent to the dates of their initial appointment. As stated earlier, the appellants were appointed initially in June, 1951 and June, 1950, but the Government of Madras, prior to the reorganisation of the States, had directed that their probationary periods should be deemed to commence in July, 1954 and March, 1953. This shows that the services rendered by the appellants under Rule 10(a)(i)(1) were treated by the Government which appointed them as a matter of stop-gap, emergency of fortuitous arrangements. In our case the initial appointment was not only made without any reference to the Public Service Commission but the various rules and the terms of the appellants appointment to which we have drawn attention show that the appellants were appointed purely as a matter of fortuitous or stop-gap arrangement. The concurrence of the Public Service Commission to the continuance of the appellants in the posts filled by them, first after the expiry of three months and then after the expiry of one year, was obtained not with a view to regularising the appointments since their inception but for the purpose of meeting the requirements of a provision under which such concurrence is necessary to obtain if an appointment made without selection by the Public Service Commission is required for any reason to be continued beyond three months or a year.
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Asa Ram Vs. The District Board, Muzaffarnagar | same authority is vested in the town panchayat. He goes on that now there are no Town Panchayats having authority in town areas, for the words "Town Panchayat" appearing in the Town Areas Act have everywhere been substituted by the words "Town Area Commmittee". It is submitted that a corresponding amendment was not made in S. 93 (3) and, therefore; though the District Board would have no power up to 1934 to frame bye-laws for town areas relating to regulation of offensive trades or callings, which were covered by S. 26 (a ) of the Town Areas Act, it would have that power after the amendment of 1934. 6. We must say that this is a very technical argument.The Town Areas Act was passed in 1914 and in the Act as it was originally passed the authority conferred by S. 26 (a) was vested in the Town Panchayat, In 1920 the U. P. Village Panchayat Act was passed creating panchayats for any village or groups of villages. It Seems that it was then thought fit to change the name in the Town Areas Act to Town Area Committee to avoid confusion with the Panchayats under the Village Panchayat Act. But this in our opinion was only a formal change, for the word committee in English is after all a translation more or less of the word panchayat in Hindi. Therefore, when the word committee was substituted in place of panchayat in the Town Areas Act there was really no change of substance and the restriction on the power of the District Board under S. 93 (3) of the District Boards Act to deal with matters entrusted to the town areas continued in full force.In this connection, our attention was drawn to Sm. Hira Devi v. District Board, Shahjahanpur, 1952 S CR 1122 : (A I R 1952 S C 362). In that case, S. 71 of the U. P. District Boards Act was amended but no corresponding amendment was made in S. 90. In that connection the following observations were made at p. ll31 (of S C R) : (at p. 365 of AIR) : --" It was unfortunate that when the Legislature came to amend the old S. 71 of the Act it forgot to amend S 90 in conformity with the amendment of S. 71. But this lacuna cannot be supplied by any such liberal construction as the High Court sought to put upon the expression orders of any authority whose sanction is necessary. No doubt it is the duty of the Court to try to harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act." 7. That case, however, related to entirely different circumstances. Here we are dealing with two statutes giving power to two statutory bodies, and if there is conflict in view of the technical submission made by the learned Solicitor General and S. 93 (3) cannot come to the aid of the Town Area Committee, we have still to see which Act will prevail in the circumstances .The U. P. District Boards Act deals with a larger area in which the area constituting the town area is also included. The Town Areas Act on the other hand deals with a smaller area and on principle when there is a body dealing with a larger area and from that area is carved out a smaller area which is entrusted to another body, the law giving power to the body governing the smaller area should prevail over the law giving power to, the body governing the larger area. If the substitution of the word committee for the word panchayat is merely a translation, as observed earlier, it makes no difference to the application of S. 93 (3) even after 1934. But if it is not treated as a mere translation and it is said that a new body was vested with powers under the Town Areas Act by the amendment of 1934, then it means that a smaller area was carved out from a larger area in 1934 and a new statutory body was created to govern it with certain powers; in those circumstances the powers given to the new statutory body in the smaller area carved out from the larger area will prevail. 8. Reference in this connection may be made to two English cases, which lay down the principle how the conflict between the two statutes in similar circumstances should be resolved. In King v. The Justices of Middlesex, (1831) 2 B and Ad 818 : 109 E R 1347 at p. 1348 it was held-"Where two Acts of Parliament, which passed during the same session and were to come into operation the same day, are repugnant to each other, that which last received the Royal assent must prevail and be considered pro tanto a repeal of the other." Again in Daw v. Metropolitan Board of Works, (1862) 12 C B N S 161 : 133 R R 311 it was held-"Where two statutes give authority to two public bodies to exercise powers which cannot consistently with the object of the Legislature co-exist, the earlier must necessarily be repealed by the later statute." In that case the conflict was between S. 145 of the City of London Sewers Act, 1848 and S.141 of the Metropolis Local Management Act, 1855, and the later was held to prevail. The principle of these cases will apply to the present circumstances, and if the words "town area committee" are not held to be a translation of the words "town panchayat,"the result is that a Town Area Committee being vested with power under S. 26 (a) to regulate offensive trades or callings, the power of the Town Area Committee must prevail over the power of the District Board under S. 174 (1) (k) of the District Boards Act. | 1[ds]It is enough to point out that the District Boards Act under which these bye-laws have been framed does not specifically provide anywhere for granting of licences. Section 174 (1) (k) itself speaks only of regulating offensive trades etc., and has not given in so many words power to issue licences. It is true that S. 106 provides that the board may charge a fee to be fixed by bye-law for any licence, sanction or permission which it is entitled or required to grant by or under the Act; but that section merely provides for levying of fee where a licence is necessary under other provisions of the Act and is not in itself an authority for issue of licences. Therefore, when the Board framed a bye-law relating to issue of licences it did so under its power of regulationSection 294 of the Municipalities Act is in the same terms as S. 106 of the District Boards Act and deals with the power of levying fees. The High Court seems to have lost sight of the distinction between granting licences which depends on the power of regulation and levying of licence-fees, which can only be levied if there is specific provision to that effect in the law. 1952 S C R 572 : (AIR 1952 S C 115) (supra) decided that as there was no provision authorising a Town Area Committee to levy licence-fee it could not do so. That, however, did not mean that regulation did not include the power of issuing licences, though in the absence of a provision for charging licence-fees, licences must be issued without charge, if bye-laws require the issue of a licence in order to regulate trades or callings which a Town Area Committee can regulate under S. 26 (a) of the Town Areas Act.The view of the learned Judge, therefore, that the Town Area Committee could not issue a licence when framing rules regulating offensive trades or callings is not correct. The Town Area Committee would thus have the power to frame bye-laws requiring taking out of licences in case it exercises its power of regulation under S.26 (a) of the Town Areas Act in the same way as a District Board has the power of framing bye-laws under S. 174 (1) (k) requiring those carrying on certain trades to take out licencesThe U. P. District Boards Act deals with a larger area in which the area constituting the town area is also included. The Town Areas Act on the other hand deals with a smaller area and on principle when there is a body dealing with a larger area and from that area is carved out a smaller area which is entrusted to another body, the law giving power to the body governing the smaller area should prevail over the law giving power to, the body governing the larger area. If the substitution of the word committee for the word panchayat is merely a translation, as observed earlier, it makes no difference to the application of S. 93 (3) even after 1934. But if it is not treated as a mere translation and it is said that a new body was vested with powers under the Town Areas Act by the amendment of 1934, then it means that a smaller area was carved out from a larger area in 1934 and a new statutory body was created to govern it with certain powers; in those circumstances the powers given to the new statutory body in the smaller area carved out from the larger area will prevail. | 1 | 3,124 | 645 | ### Instruction:
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same authority is vested in the town panchayat. He goes on that now there are no Town Panchayats having authority in town areas, for the words "Town Panchayat" appearing in the Town Areas Act have everywhere been substituted by the words "Town Area Commmittee". It is submitted that a corresponding amendment was not made in S. 93 (3) and, therefore; though the District Board would have no power up to 1934 to frame bye-laws for town areas relating to regulation of offensive trades or callings, which were covered by S. 26 (a ) of the Town Areas Act, it would have that power after the amendment of 1934. 6. We must say that this is a very technical argument.The Town Areas Act was passed in 1914 and in the Act as it was originally passed the authority conferred by S. 26 (a) was vested in the Town Panchayat, In 1920 the U. P. Village Panchayat Act was passed creating panchayats for any village or groups of villages. It Seems that it was then thought fit to change the name in the Town Areas Act to Town Area Committee to avoid confusion with the Panchayats under the Village Panchayat Act. But this in our opinion was only a formal change, for the word committee in English is after all a translation more or less of the word panchayat in Hindi. Therefore, when the word committee was substituted in place of panchayat in the Town Areas Act there was really no change of substance and the restriction on the power of the District Board under S. 93 (3) of the District Boards Act to deal with matters entrusted to the town areas continued in full force.In this connection, our attention was drawn to Sm. Hira Devi v. District Board, Shahjahanpur, 1952 S CR 1122 : (A I R 1952 S C 362). In that case, S. 71 of the U. P. District Boards Act was amended but no corresponding amendment was made in S. 90. In that connection the following observations were made at p. ll31 (of S C R) : (at p. 365 of AIR) : --" It was unfortunate that when the Legislature came to amend the old S. 71 of the Act it forgot to amend S 90 in conformity with the amendment of S. 71. But this lacuna cannot be supplied by any such liberal construction as the High Court sought to put upon the expression orders of any authority whose sanction is necessary. No doubt it is the duty of the Court to try to harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act." 7. That case, however, related to entirely different circumstances. Here we are dealing with two statutes giving power to two statutory bodies, and if there is conflict in view of the technical submission made by the learned Solicitor General and S. 93 (3) cannot come to the aid of the Town Area Committee, we have still to see which Act will prevail in the circumstances .The U. P. District Boards Act deals with a larger area in which the area constituting the town area is also included. The Town Areas Act on the other hand deals with a smaller area and on principle when there is a body dealing with a larger area and from that area is carved out a smaller area which is entrusted to another body, the law giving power to the body governing the smaller area should prevail over the law giving power to, the body governing the larger area. If the substitution of the word committee for the word panchayat is merely a translation, as observed earlier, it makes no difference to the application of S. 93 (3) even after 1934. But if it is not treated as a mere translation and it is said that a new body was vested with powers under the Town Areas Act by the amendment of 1934, then it means that a smaller area was carved out from a larger area in 1934 and a new statutory body was created to govern it with certain powers; in those circumstances the powers given to the new statutory body in the smaller area carved out from the larger area will prevail. 8. Reference in this connection may be made to two English cases, which lay down the principle how the conflict between the two statutes in similar circumstances should be resolved. In King v. The Justices of Middlesex, (1831) 2 B and Ad 818 : 109 E R 1347 at p. 1348 it was held-"Where two Acts of Parliament, which passed during the same session and were to come into operation the same day, are repugnant to each other, that which last received the Royal assent must prevail and be considered pro tanto a repeal of the other." Again in Daw v. Metropolitan Board of Works, (1862) 12 C B N S 161 : 133 R R 311 it was held-"Where two statutes give authority to two public bodies to exercise powers which cannot consistently with the object of the Legislature co-exist, the earlier must necessarily be repealed by the later statute." In that case the conflict was between S. 145 of the City of London Sewers Act, 1848 and S.141 of the Metropolis Local Management Act, 1855, and the later was held to prevail. The principle of these cases will apply to the present circumstances, and if the words "town area committee" are not held to be a translation of the words "town panchayat,"the result is that a Town Area Committee being vested with power under S. 26 (a) to regulate offensive trades or callings, the power of the Town Area Committee must prevail over the power of the District Board under S. 174 (1) (k) of the District Boards Act.
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### Explanation:
It is enough to point out that the District Boards Act under which these bye-laws have been framed does not specifically provide anywhere for granting of licences. Section 174 (1) (k) itself speaks only of regulating offensive trades etc., and has not given in so many words power to issue licences. It is true that S. 106 provides that the board may charge a fee to be fixed by bye-law for any licence, sanction or permission which it is entitled or required to grant by or under the Act; but that section merely provides for levying of fee where a licence is necessary under other provisions of the Act and is not in itself an authority for issue of licences. Therefore, when the Board framed a bye-law relating to issue of licences it did so under its power of regulationSection 294 of the Municipalities Act is in the same terms as S. 106 of the District Boards Act and deals with the power of levying fees. The High Court seems to have lost sight of the distinction between granting licences which depends on the power of regulation and levying of licence-fees, which can only be levied if there is specific provision to that effect in the law. 1952 S C R 572 : (AIR 1952 S C 115) (supra) decided that as there was no provision authorising a Town Area Committee to levy licence-fee it could not do so. That, however, did not mean that regulation did not include the power of issuing licences, though in the absence of a provision for charging licence-fees, licences must be issued without charge, if bye-laws require the issue of a licence in order to regulate trades or callings which a Town Area Committee can regulate under S. 26 (a) of the Town Areas Act.The view of the learned Judge, therefore, that the Town Area Committee could not issue a licence when framing rules regulating offensive trades or callings is not correct. The Town Area Committee would thus have the power to frame bye-laws requiring taking out of licences in case it exercises its power of regulation under S.26 (a) of the Town Areas Act in the same way as a District Board has the power of framing bye-laws under S. 174 (1) (k) requiring those carrying on certain trades to take out licencesThe U. P. District Boards Act deals with a larger area in which the area constituting the town area is also included. The Town Areas Act on the other hand deals with a smaller area and on principle when there is a body dealing with a larger area and from that area is carved out a smaller area which is entrusted to another body, the law giving power to the body governing the smaller area should prevail over the law giving power to, the body governing the larger area. If the substitution of the word committee for the word panchayat is merely a translation, as observed earlier, it makes no difference to the application of S. 93 (3) even after 1934. But if it is not treated as a mere translation and it is said that a new body was vested with powers under the Town Areas Act by the amendment of 1934, then it means that a smaller area was carved out from a larger area in 1934 and a new statutory body was created to govern it with certain powers; in those circumstances the powers given to the new statutory body in the smaller area carved out from the larger area will prevail.
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AYURVED VIKAS MANDAL Vs. STATE OF GUJARAT | Kurian, J.— CIVIL APPEAL NO(S). 12683 OF 2017 [@ SPECIAL LEAVE PETITION (C) NO. 15463 OF 2016] Leave granted. 2. The appellant is before this Court, aggrieved by the Judgment dated 02.05.2016 passed by the High Court of Gujarat at Ahmedabad in Letters Patent Appeal No. 125 of 2016 in Civil Application No. 13039 of 2015. The issue pertains to absorption of 23 members of the staff of the 2nd respondent-institution. After hearing the learned counsel for some time, this court passed the following order on 31.07.2017 :- The issue raised in these two petitions pertains to the fate of 23 teachers who had been working in an aided college. In 2012, it appears, there was a decision to convert the college to self-financing. According to the learned counsel for the State, the condition was that the employees of the institution should be continued as such and only on that condition the permission was granted. According to the employees, they have not been continued in the institution nor have they been absorbed in Government service, as directed by the High Court. Learned counsel appearing for the State submits that in case the direction of the High Court is implemented that will set a wrong precedent and it will also affect the chances of direct recruits. However, it is pointed out that in similar cases, the Government had agreed for absorption of such employees. Be that as it may, we direct the State Government to get instruction as to whether the State would be in a position to absorb these 23 employees without the judgment being treated as a precedent. List on 18.08.2017. 3. In response to the order, an affidavit has been filed on behalf of the State on 07.09.2017. Paragraph 4 of the affidavit reads as follows :- I say and submit that the State Government has taken up the matter of accommodating 16 employees of the trust in the available vacancies of other Grant in Aid Ayurveda Colleges of the State and it has been finally decided by the government that the 16 employees of the trust shall be accommodated in the Grant in Aid Ayurveda Colleges situated at Surat and Jamnagar as 7 employees are already retired. This decision has been taken on the condition that the trust shall pay the Salaries and Allowances of all the 16 employees from the date on which the trust has stopped paying the salaries till the date on which the State will absorb the employees in other Grant in Aid Ayurveda Colleges while the salaries and allowances of 7 employees shall be paid by the trust from the date on which the trust has stopped paying the salaries till the date of retirement. The pension papers of these employees shall be prepared by the trust, if not prepared and shall be forwarded to the Petitioner No. 2 office who in turn shall take necessary actions to sanction the same. The Statement showing the details of 16 employees of the trust to be absorbed in other Grant in Aid Ayurveda Colleges and 7 employees of the trust who have retired is annexed herewith and marked as Annexure R/1 & R/2 4. We find that the Government has taken a very fair stand, though Mr. Rakesh Khanna, learned senior counsel, has very vehemently contended that the second respondent will not be in a position to pay the arrears of salary, as stated in the Affidavit. Having submitted before the High Court that the Government will absorb the 23 employees, there is no point in turning round on that instruction furnished before the High Court; it is submitted. 5. Having heard Mr. Preetesh Kapoor, learned counsel appearing for the State, we find it difficult to appreciate the contentions advanced by him. True, the second respondent institution was a grant-in-aid college. However, it is on the request of the Management that the Government agreed to convert it into a self financing college, subject to certain conditions. 6. In that background, we are of the view that this case needs to be disposed of in terms of the affidavit, as extracted above, making it further clear that this Judgment is passed in the very peculiar facts of this case and the same shall not be treated as a precedent. 7. Mr. Rakesh Khanna, learned senior counsel, submits that in view of the paucity of funds for the Management, they may be permitted to sell/mortgage a portion of their land so as to comply with the directions regarding payment of arrears of salary of the 23 employees upto 31.10.2017 . | 1[ds]5. Having heard Mr. Preetesh Kapoor, learned counsel appearing for the State, we find it difficult to appreciate the contentions advanced by him. True, the second respondent institution was a grant-in-aid college. However, it is on the request of the Management that the Government agreed to convert it into a self financing college, subject to certain conditions.6. In that background, we are of the view that this case needs to be disposed of in terms of the affidavit, as extracted above, making it further clear that this Judgment is passed in the very peculiar facts of this case and the same shall not be treated as a precedent. | 1 | 835 | 125 | ### 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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Kurian, J.— CIVIL APPEAL NO(S). 12683 OF 2017 [@ SPECIAL LEAVE PETITION (C) NO. 15463 OF 2016] Leave granted. 2. The appellant is before this Court, aggrieved by the Judgment dated 02.05.2016 passed by the High Court of Gujarat at Ahmedabad in Letters Patent Appeal No. 125 of 2016 in Civil Application No. 13039 of 2015. The issue pertains to absorption of 23 members of the staff of the 2nd respondent-institution. After hearing the learned counsel for some time, this court passed the following order on 31.07.2017 :- The issue raised in these two petitions pertains to the fate of 23 teachers who had been working in an aided college. In 2012, it appears, there was a decision to convert the college to self-financing. According to the learned counsel for the State, the condition was that the employees of the institution should be continued as such and only on that condition the permission was granted. According to the employees, they have not been continued in the institution nor have they been absorbed in Government service, as directed by the High Court. Learned counsel appearing for the State submits that in case the direction of the High Court is implemented that will set a wrong precedent and it will also affect the chances of direct recruits. However, it is pointed out that in similar cases, the Government had agreed for absorption of such employees. Be that as it may, we direct the State Government to get instruction as to whether the State would be in a position to absorb these 23 employees without the judgment being treated as a precedent. List on 18.08.2017. 3. In response to the order, an affidavit has been filed on behalf of the State on 07.09.2017. Paragraph 4 of the affidavit reads as follows :- I say and submit that the State Government has taken up the matter of accommodating 16 employees of the trust in the available vacancies of other Grant in Aid Ayurveda Colleges of the State and it has been finally decided by the government that the 16 employees of the trust shall be accommodated in the Grant in Aid Ayurveda Colleges situated at Surat and Jamnagar as 7 employees are already retired. This decision has been taken on the condition that the trust shall pay the Salaries and Allowances of all the 16 employees from the date on which the trust has stopped paying the salaries till the date on which the State will absorb the employees in other Grant in Aid Ayurveda Colleges while the salaries and allowances of 7 employees shall be paid by the trust from the date on which the trust has stopped paying the salaries till the date of retirement. The pension papers of these employees shall be prepared by the trust, if not prepared and shall be forwarded to the Petitioner No. 2 office who in turn shall take necessary actions to sanction the same. The Statement showing the details of 16 employees of the trust to be absorbed in other Grant in Aid Ayurveda Colleges and 7 employees of the trust who have retired is annexed herewith and marked as Annexure R/1 & R/2 4. We find that the Government has taken a very fair stand, though Mr. Rakesh Khanna, learned senior counsel, has very vehemently contended that the second respondent will not be in a position to pay the arrears of salary, as stated in the Affidavit. Having submitted before the High Court that the Government will absorb the 23 employees, there is no point in turning round on that instruction furnished before the High Court; it is submitted. 5. Having heard Mr. Preetesh Kapoor, learned counsel appearing for the State, we find it difficult to appreciate the contentions advanced by him. True, the second respondent institution was a grant-in-aid college. However, it is on the request of the Management that the Government agreed to convert it into a self financing college, subject to certain conditions. 6. In that background, we are of the view that this case needs to be disposed of in terms of the affidavit, as extracted above, making it further clear that this Judgment is passed in the very peculiar facts of this case and the same shall not be treated as a precedent. 7. Mr. Rakesh Khanna, learned senior counsel, submits that in view of the paucity of funds for the Management, they may be permitted to sell/mortgage a portion of their land so as to comply with the directions regarding payment of arrears of salary of the 23 employees upto 31.10.2017 .
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5. Having heard Mr. Preetesh Kapoor, learned counsel appearing for the State, we find it difficult to appreciate the contentions advanced by him. True, the second respondent institution was a grant-in-aid college. However, it is on the request of the Management that the Government agreed to convert it into a self financing college, subject to certain conditions.6. In that background, we are of the view that this case needs to be disposed of in terms of the affidavit, as extracted above, making it further clear that this Judgment is passed in the very peculiar facts of this case and the same shall not be treated as a precedent.
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V.S. Achuthanandan Vs. R. Balakrishna Pillai | appeal from the judgment dated 18.12.2006 passed by the Special Judge, CBI (AHD), Patna, acquitting the accused persons when the case has been investigated by the Delhi Special Police Establishment (CBI) and this Court held that the appeal at the instance of the State Government is not maintainable. In view of the special circumstances highlighted in the case on hand, we reiterate that the present appeal by the appellant - V.S. Achuthanandan against the order of acquittal by the High Court is maintainable. Our view has been strengthened by a decision of this Court in K. Anbazhagan vs. Superintendent of Police and Others (2004) 3 SCC 767. Accordingly we reject the contention raised by the learned senior counsel for the respondents. Conclusion 47) The analysis of the materials placed by the prosecution, the plea of defence by the accused, the decision of the Special Court and the reasoning of the High Court, we are satisfied that the prosecution has established the following aspects insofar as the accused (A1), (A3) and (A6) are concerned:- a) By awarding both the works of Idamalayar at a very high and exorbitant rate with special conditions having heavy financial implications. b) By reducing the retention and security amount. c) By allowing the contractor to return only fifty per cent of the empty cement bags. Having arrived at such conclusion, we are of the view that the High Court failed to appreciate in its proper sense the materials placed by the prosecution and brushed aside several important items of evidence adduced by the prosecution. Equally, we are unable to accept the conclusion of the High Court, namely, the proved circumstances are not sufficient to hold that there was conspiracy as alleged by the prosecution. On the other hand, we are satisfied that the Special Court after framing various points for consideration and after thorough discussion has accepted the case of the prosecution insofar as the work of driving the surge shaft, lining the surge shaft, balance driving the power tunnel and other allied works of Idamalayar Hydro Electric Power Project at a higher or exorbitant rates to the contractor K.P. Poulose and the accused persons have abused their official positions. The Special Court has also accepted the prosecution case founding that A1 along with K.P. Poulose, Paul Mundakkal and other accused persons entered into criminal conspiracy and rightly convicted them. In our considered view, the High Court committed a grave error in acquitting the accused without adverting to the reliable and acceptable evidence adduced by the prosecution. 48) Now, coming to the sentence part, it is relevant to note that the contract was awarded to K.P. Poulose, (since deceased) the fourth accused, as early as on 19.11.1982. After various agitations, discussions in the Assembly, appointment of a Commission by the Government and based on the report of the Commission, the State Government initiated a prosecution which resulted in C.C. No. 01 of 1991 and trial prolonged upto November 19, 1999. Thereafter, the matter was kept pending at the High Court from 1999 to October 2003, when the High Court pronounced its order acquitting all the accused and the matter was taken up to this Court by the present appellant initially by way of special leave petition in 2005, leave was granted in 2006 and it was kept pending till this date, we feel that all the three accused have undergone agony of these proceedings for nearly two decades, we are of the opinion that ends of justice would be met by awarding rigorous imprisonment for one year with fine of Rs. 10,000/- each, and the same shall be paid within eight weeks, in default, to undergo simple imprisonment for one month each. 49) Before winding up, it is our duty to point out in all the cases in which charges relating to corruption by public servants are involved, normally, take longer time to reach its finality. The facts and figures, in the case on hand, which we have already mentioned clearly show that the contract relates to the year 1982 and the State Government initiated prosecution in 1991, however, the trial prolonged for nearly nine years and the Special Court passed an order convicting the accused only on 19.11.1999. When the matter was taken up by way of appeal by the accused to the High Court even in 1999 itself, the decision was rendered by the High Court acquitting all the accused only in 2003. In the same manner, though the appellant challenged the order of the High Court acquitting all the accused before this Court even in 2005, it has reached its finality only in 2011 by the present order. Though the issue was handled by a Special Court constituted for the sole purpose of finding out the truth or otherwise of the prosecution case, the fact remains it had taken nearly two decades to reach its finality. We are conscious of the fact that the Government of India, Department of Law & Justice is making all efforts for expeditious disposal of cases of this nature by constituting Special courts, however, the fact remains that it takes longer time to reach its destination. We are of the view that when a matter of this nature is entrusted to a Special Court or a regular Court, it is but proper on the part of the court concerned to give priority to the same and conclude the trial within a reasonable time. The High Court, having overall control and supervisory jurisdiction under Article 227 of the Constitution of India is expected to monitor and even call for a quarterly report from the court concerned for speedy disposal. Inasmuch as the accused is entitled to speedy justice, it is the duty of all in charge of dispensation of justice to see that the issue reaches its end as early as possible. 50) Considering all the materials and in the light of the above discussion, we agree with the conclusion arrived at by the Special Court and hold that | 1[ds]As per Section 78A, which was inserted by Act 101 of 1956 and came into force w.e.f. 30.12.1956, in discharge of its functions, the Board shall be guided by such directions and questions of policy as may be given to it by the State Government. As rightly pointed out by Mr. Shanti Bhushan, learned senior counsel for the appellant that except on policy matters, the State Government has no role in the affairs of the Board. In view of the charges levelled against A1 who was the Minister for Electricity, Government of Kerala, we adverted to these statutory provisions14) It is clear from the above materials that the process of tendering of Idamalayar works was interrupted on several occasions mainly by the Board by cancelling the tenders and ordering re-tender and by extending the period of validity of tenders more than once. It was on the last date of extension of the validity of the tender i.e. on 30.06.1982, K.P.Poulose appeared and submitted his tender with special conditions which was later accepted in the Boards meeting dated 19.11.1982. The Special Judge, basing reliance on Boards resolution (Ex. P550(a)), has rightly concluded that there was inordinate delay in awarding the work which reasoning was not accepted by the High Court. The materials placed clearly show that it was nearly three years to take a decision. It is also clear from the evidence of PWs 64, 66, 138 and 146 which clingingly established the circumstances under which A1 conceived the idea for fixing contract of the Board at exorbitant rate in order to derive monetary benefits. From the above, the contrary conclusion arrived by the High Court, according to us, is not in terms of the evidence led in by the prosecution. Whether Idamalayar contract was awarded at exorbitant rate causing loss to the BoardHaving arrived at such conclusion, we are of the view that the High Court failed to appreciate in its proper sense the materials placed by the prosecution and brushed aside several important items of evidence adduced by the prosecution. Equally, we are unable to accept the conclusion of the High Court, namely, the proved circumstances are not sufficient to hold that there was conspiracy as alleged by the prosecution. On the other hand, we are satisfied that the Special Court after framing various points for consideration and after thorough discussion has accepted the case of the prosecution insofar as the work of driving the surge shaft, lining the surge shaft, balance driving the power tunnel and other allied works of Idamalayar Hydro Electric Power Project at a higher or exorbitant rates to the contractor K.P. Poulose and the accused persons have abused their official positions. The Special Court has also accepted the prosecution case founding that A1 along with K.P. Poulose, Paul Mundakkal and other accused persons entered into criminal conspiracy and rightly convicted them. In our considered view, the High Court committed a grave error in acquitting the accused without adverting to the reliable and acceptable evidence adduced by the prosecutionThe High Court failed toappreciate in its proper sense the materials placed by the prosecution and brushed aside several important items of evidence adduced by the prosecution. Equally, we are unable to accept the conclusion of the High Court, namely, the proved circumstances are not sufficient to hold that there was conspiracy as alleged by the prosecution. On the other hand, we are satisfied that the Special Court after framing various points for consideration and after thorough discussion has accepted the case of the prosecution insofar as the work of driving the surge shaft, lining the surge shaft, balance driving the power tunnel and other allied works of Idamalayar Hydro Electric Power Project at a higher or exorbitant rates to the contractor K.P. Poulose and the accused persons have abused their official positions. The Special Court has also accepted the prosecution case founding that A1 along with K.P. Poulose, Paul Mundakkal and other accused persons entered into criminal conspiracy and rightly convicted them. In our considered view, the High Court committed a grave error in acquitting the accused without adverting to the reliable and acceptable evidence adduced by the prosecution49) Before winding up, it is our duty to point out in all the cases in which charges relating to corruption by public servants are involved, normally, take longer time to reach its finality. The facts and figures, in the case on hand, which we have already mentioned clearly show that the contract relates to the year 1982 and the State Government initiated prosecution in 1991, however, the trial prolonged for nearly nine years and the Special Court passed an order convicting the accused only on 19.11.1999. When the matter was taken up by way of appeal by the accused to the High Court even in 1999 itself, the decision was rendered by the High Court acquitting all the accused only in 2003. In the same manner, though the appellant challenged the order of the High Court acquitting all the accused before this Court even in 2005, it has reached its finality only in 2011 by the present order. Though the issue was handled by a Special Court constituted for the sole purpose of finding out the truth or otherwise of the prosecution case, the fact remains it had taken nearly two decades to reach its finality. We are conscious of the fact that the Government of India, Department of Law & Justice is making all efforts for expeditious disposal of cases of this nature by constituting Special courts, however, the fact remains that it takes longer time to reach its destination. We are of the view that when a matter of this nature is entrusted to a Special Court or a regular Court, it is but proper on the part of the court concerned to give priority to the same and conclude the trial within a reasonable time. The High Court, having overall control and supervisory jurisdiction under Article 227 of the Constitution of India is expected to monitor and even call for a quarterly report from the court concerned for speedy disposal. Inasmuch as the accused is entitled to speedy justice, it is the duty of all in charge of dispensation of justice to see that the issue reaches its end as early as possible. | 1 | 17,772 | 1,141 | ### 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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appeal from the judgment dated 18.12.2006 passed by the Special Judge, CBI (AHD), Patna, acquitting the accused persons when the case has been investigated by the Delhi Special Police Establishment (CBI) and this Court held that the appeal at the instance of the State Government is not maintainable. In view of the special circumstances highlighted in the case on hand, we reiterate that the present appeal by the appellant - V.S. Achuthanandan against the order of acquittal by the High Court is maintainable. Our view has been strengthened by a decision of this Court in K. Anbazhagan vs. Superintendent of Police and Others (2004) 3 SCC 767. Accordingly we reject the contention raised by the learned senior counsel for the respondents. Conclusion 47) The analysis of the materials placed by the prosecution, the plea of defence by the accused, the decision of the Special Court and the reasoning of the High Court, we are satisfied that the prosecution has established the following aspects insofar as the accused (A1), (A3) and (A6) are concerned:- a) By awarding both the works of Idamalayar at a very high and exorbitant rate with special conditions having heavy financial implications. b) By reducing the retention and security amount. c) By allowing the contractor to return only fifty per cent of the empty cement bags. Having arrived at such conclusion, we are of the view that the High Court failed to appreciate in its proper sense the materials placed by the prosecution and brushed aside several important items of evidence adduced by the prosecution. Equally, we are unable to accept the conclusion of the High Court, namely, the proved circumstances are not sufficient to hold that there was conspiracy as alleged by the prosecution. On the other hand, we are satisfied that the Special Court after framing various points for consideration and after thorough discussion has accepted the case of the prosecution insofar as the work of driving the surge shaft, lining the surge shaft, balance driving the power tunnel and other allied works of Idamalayar Hydro Electric Power Project at a higher or exorbitant rates to the contractor K.P. Poulose and the accused persons have abused their official positions. The Special Court has also accepted the prosecution case founding that A1 along with K.P. Poulose, Paul Mundakkal and other accused persons entered into criminal conspiracy and rightly convicted them. In our considered view, the High Court committed a grave error in acquitting the accused without adverting to the reliable and acceptable evidence adduced by the prosecution. 48) Now, coming to the sentence part, it is relevant to note that the contract was awarded to K.P. Poulose, (since deceased) the fourth accused, as early as on 19.11.1982. After various agitations, discussions in the Assembly, appointment of a Commission by the Government and based on the report of the Commission, the State Government initiated a prosecution which resulted in C.C. No. 01 of 1991 and trial prolonged upto November 19, 1999. Thereafter, the matter was kept pending at the High Court from 1999 to October 2003, when the High Court pronounced its order acquitting all the accused and the matter was taken up to this Court by the present appellant initially by way of special leave petition in 2005, leave was granted in 2006 and it was kept pending till this date, we feel that all the three accused have undergone agony of these proceedings for nearly two decades, we are of the opinion that ends of justice would be met by awarding rigorous imprisonment for one year with fine of Rs. 10,000/- each, and the same shall be paid within eight weeks, in default, to undergo simple imprisonment for one month each. 49) Before winding up, it is our duty to point out in all the cases in which charges relating to corruption by public servants are involved, normally, take longer time to reach its finality. The facts and figures, in the case on hand, which we have already mentioned clearly show that the contract relates to the year 1982 and the State Government initiated prosecution in 1991, however, the trial prolonged for nearly nine years and the Special Court passed an order convicting the accused only on 19.11.1999. When the matter was taken up by way of appeal by the accused to the High Court even in 1999 itself, the decision was rendered by the High Court acquitting all the accused only in 2003. In the same manner, though the appellant challenged the order of the High Court acquitting all the accused before this Court even in 2005, it has reached its finality only in 2011 by the present order. Though the issue was handled by a Special Court constituted for the sole purpose of finding out the truth or otherwise of the prosecution case, the fact remains it had taken nearly two decades to reach its finality. We are conscious of the fact that the Government of India, Department of Law & Justice is making all efforts for expeditious disposal of cases of this nature by constituting Special courts, however, the fact remains that it takes longer time to reach its destination. We are of the view that when a matter of this nature is entrusted to a Special Court or a regular Court, it is but proper on the part of the court concerned to give priority to the same and conclude the trial within a reasonable time. The High Court, having overall control and supervisory jurisdiction under Article 227 of the Constitution of India is expected to monitor and even call for a quarterly report from the court concerned for speedy disposal. Inasmuch as the accused is entitled to speedy justice, it is the duty of all in charge of dispensation of justice to see that the issue reaches its end as early as possible. 50) Considering all the materials and in the light of the above discussion, we agree with the conclusion arrived at by the Special Court and hold that
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by Mr. Shanti Bhushan, learned senior counsel for the appellant that except on policy matters, the State Government has no role in the affairs of the Board. In view of the charges levelled against A1 who was the Minister for Electricity, Government of Kerala, we adverted to these statutory provisions14) It is clear from the above materials that the process of tendering of Idamalayar works was interrupted on several occasions mainly by the Board by cancelling the tenders and ordering re-tender and by extending the period of validity of tenders more than once. It was on the last date of extension of the validity of the tender i.e. on 30.06.1982, K.P.Poulose appeared and submitted his tender with special conditions which was later accepted in the Boards meeting dated 19.11.1982. The Special Judge, basing reliance on Boards resolution (Ex. P550(a)), has rightly concluded that there was inordinate delay in awarding the work which reasoning was not accepted by the High Court. The materials placed clearly show that it was nearly three years to take a decision. It is also clear from the evidence of PWs 64, 66, 138 and 146 which clingingly established the circumstances under which A1 conceived the idea for fixing contract of the Board at exorbitant rate in order to derive monetary benefits. From the above, the contrary conclusion arrived by the High Court, according to us, is not in terms of the evidence led in by the prosecution. Whether Idamalayar contract was awarded at exorbitant rate causing loss to the BoardHaving arrived at such conclusion, we are of the view that the High Court failed to appreciate in its proper sense the materials placed by the prosecution and brushed aside several important items of evidence adduced by the prosecution. Equally, we are unable to accept the conclusion of the High Court, namely, the proved circumstances are not sufficient to hold that there was conspiracy as alleged by the prosecution. On the other hand, we are satisfied that the Special Court after framing various points for consideration and after thorough discussion has accepted the case of the prosecution insofar as the work of driving the surge shaft, lining the surge shaft, balance driving the power tunnel and other allied works of Idamalayar Hydro Electric Power Project at a higher or exorbitant rates to the contractor K.P. Poulose and the accused persons have abused their official positions. The Special Court has also accepted the prosecution case founding that A1 along with K.P. Poulose, Paul Mundakkal and other accused persons entered into criminal conspiracy and rightly convicted them. In our considered view, the High Court committed a grave error in acquitting the accused without adverting to the reliable and acceptable evidence adduced by the prosecutionThe High Court failed toappreciate in its proper sense the materials placed by the prosecution and brushed aside several important items of evidence adduced by the prosecution. Equally, we are unable to accept the conclusion of the High Court, namely, the proved circumstances are not sufficient to hold that there was conspiracy as alleged by the prosecution. On the other hand, we are satisfied that the Special Court after framing various points for consideration and after thorough discussion has accepted the case of the prosecution insofar as the work of driving the surge shaft, lining the surge shaft, balance driving the power tunnel and other allied works of Idamalayar Hydro Electric Power Project at a higher or exorbitant rates to the contractor K.P. Poulose and the accused persons have abused their official positions. The Special Court has also accepted the prosecution case founding that A1 along with K.P. Poulose, Paul Mundakkal and other accused persons entered into criminal conspiracy and rightly convicted them. In our considered view, the High Court committed a grave error in acquitting the accused without adverting to the reliable and acceptable evidence adduced by the prosecution49) Before winding up, it is our duty to point out in all the cases in which charges relating to corruption by public servants are involved, normally, take longer time to reach its finality. The facts and figures, in the case on hand, which we have already mentioned clearly show that the contract relates to the year 1982 and the State Government initiated prosecution in 1991, however, the trial prolonged for nearly nine years and the Special Court passed an order convicting the accused only on 19.11.1999. When the matter was taken up by way of appeal by the accused to the High Court even in 1999 itself, the decision was rendered by the High Court acquitting all the accused only in 2003. In the same manner, though the appellant challenged the order of the High Court acquitting all the accused before this Court even in 2005, it has reached its finality only in 2011 by the present order. Though the issue was handled by a Special Court constituted for the sole purpose of finding out the truth or otherwise of the prosecution case, the fact remains it had taken nearly two decades to reach its finality. We are conscious of the fact that the Government of India, Department of Law & Justice is making all efforts for expeditious disposal of cases of this nature by constituting Special courts, however, the fact remains that it takes longer time to reach its destination. We are of the view that when a matter of this nature is entrusted to a Special Court or a regular Court, it is but proper on the part of the court concerned to give priority to the same and conclude the trial within a reasonable time. The High Court, having overall control and supervisory jurisdiction under Article 227 of the Constitution of India is expected to monitor and even call for a quarterly report from the court concerned for speedy disposal. Inasmuch as the accused is entitled to speedy justice, it is the duty of all in charge of dispensation of justice to see that the issue reaches its end as early as possible.
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Kedar Nath Yadav Vs. State Of West Bengal | the objections pertained to persons who were already running industrial units. The names of the objectors are as follows:"1. Kuldip Maity of Beraberi, P.S. Singur;2. Subir Kumar Pal, Director of M/s Shree Bhumi Steel Pvt. Ltd., P.S. Singur;3. M/s. Shanti Ceramics Pvt. Ltd., P.S. Singur;4. Prashanta Kumar Jana, Vill-Habaspota, Singur;5. M/s. Ajit Services Station on behalf of Tapan Kumar Bera, Advocate;6. M/s. Shree Padma Sagar Exports Pvt. Ltd. of Singherbheri, P.S. Singur"69. Some of these objectors were not given the opportunity to be heard as required under Section 5-A (2) of the L.A. Act. The same ought to have been given to them as required both under the statutory provisions of the L.A. Act as well as the principles of natural justice, as the acquisition of lands of the objectors would entail a serious civil consequence. In the case of Mandir Shri Sita Ramji v. Lt. Governor of Delhi, (1975) 4 SCC 298 a Constitution Bench of this Court has held that it is the mandatory duty cast upon the Collector to follow the provision of Section 5-A (2) of the L.A. Act as under:"5. The learned Single Judge allowed the writ petition on the basis that the appellant had no opportunity of being heard by the Collector under Section 5-A. The duty to afford such an opportunity is mandatory. A decision by the Government on the objection, when the Collector afforded no opportunity of being heard to the objector, would not be proper. The power to hear the objection under Section 5-A is that of the Collector and not of the appropriate Government. It is no doubt true that the recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the recommendation or to reject it; but the requirement of the section is that when a persons property is proposed to be acquired, he must be given an opportunity to show cause against it. Merely because the Government may not choose to accept the recommendation of the Land Acquisition Collector, even when he makes one, it cannot be said that he need not make the recommendation at all but leave it to the Government to decide the matter. In other words, the fact that the Collector is not the authority to decide the objection does not exonerate him from his duty to hear the objector on the objection and make the recommendation."(emphasis laid by this Court)70. In the case of Babu Ram v. State of Haryana, (2009) 10 SCC 115 this Court observed as under:"30. As indicated hereinabove in the various cases cited by Mr. Pradip Ghosh and, in particular, the decision in Krishnan Lal Arneja case, in which reference has been made to the observations made by this Court in Om Prakash case, it has been emphasized that a right under Section 5-A is not merely statutory but also has the flavour of fundamental rights under Articles 14 and 19 of the Constitution. Such observations had been made in reference to an observation made in the earlier decision in Gurdial Singh case and keeping in mind the fact that right to property was no longer a fundamental right, an observation was made that even if the right to property was no longer a fundamental right, the observations relating to Article 14 would continue to apply in full force with regard to Section 5-A of the L.A. Act."(emphasis laid by this Court)From a perusal of the proceedings before the Collector, which are made available to this Court, it becomes clear that the same have been rejected without assigning any clear reasons or application of mind.71. Thus, the report of the Collector is not a valid report in the eyes of law. The State Government has mechanically accepted the same without application of mind independently before issuing notification under Section 6 of the L.A. Act declaring that the lands are required for establishment of automobile industry by TML. Therefore, the point nos. 3, 4 and 5 are answered against the State Government and in favour of the land owners/cultivators.Answer to Point Nos. 6, 7 and 872. After issuing the notifications under Section 6 of the L.A. Act declaring that the lands have been acquired for the purpose of industrial development, a statutory duty is cast upon the Collector to issue notice to the land owners/cultivators, as required under Section 9 of the L.A. Act, to determine the market value of the acquired land and award compensation as required under Section 11 of the L.A. Act which is mandatory for taking possession of the land by the State Government.73. As can be seen from material on record, no individual notices were served upon the land owners/cultivators. A joint inquiry appears to have been conducted by the Land Acquisition Collector without giving them an adequate opportunity to establish their claim for determination of reasonable compensation for acquisition of lands by presenting true and correct market value of the lands. The determination of market value of lands by clubbing a number of cases together and passing a composite award is no award in the eyes of law. The inquiry, as contemplated under Section 11 of the L.A. Act, is a quasi judicial exercise of power on the part of the Collector in awarding just and reasonable compensation to the landowners/cultivators. That has not been done in the instant case. Further, the proviso to Section 11(1) of the L.A. Act provides that no award shall be made by the collector without the previous approval of either the appropriate government or such officer authorised by it for the above purpose. It was also brought to the notice of this Court that supplementary awards were also passed which is not legally permissible in law. For non-compliance of the above provisions of the L.A. Act, the composite awards are vitiated in law and therefore, the same are also liable to be quashed.74. Accordingly, the point nos. 6, 7 and 8 are answered in favour of the land owners.ORDER | 1[ds]The learned senior counsel submit that even before the Supreme Court, the Stateof West Bengalhas stated in its counter affidavit that establishing a new industry is the public purpose as envisaged under Section 3(f) of the L.A. Act and that in the instant case, it was the state government which had acquired the lands in favour of WBIDC for theng its industrialization policy in the State6. The learned senior counsel further submits that in the instant case, having regard to the nature of acquisition of lands made by the previous Government, the lands were acquired by the State Government ints eminent domain power without following the statutory provisions contained in Sections 3(f), 4 and 6 of the L.A. Act as well as Part VII of the L.A. Act. It is submitted that the previous government of the state has violated statutory provisions of the L.A. Act in acquiring the vast extent of lands having immense agricultural potential, thus depriving the agricultural occupation of a largend owners/ cultivators, thereby depriving them of their constitutional and fundamental rights guaranteed under the Constitution of India. It is submitted that the acquisition of the lands in the instant case has been made at the instance of TML. Therefore, the previous Government has violated the law in acquiring the lands. It is submitted that the stand of the present government becomes clear from the fact that it enacted the Singur Act, 2011, the constitutional validity of which has been challenged by TML by way of filing petitions, which were allowed by the High Court, against which judgment, the State Government filed SLPs which are currently pending before this Court. Therefore, the State Government has changed its stand in not justifying the acquisition proceedings.47. We are unable to agree with the contentions advanced by the learned senior counsel appearing on behalf of TML. While it is true that rule of law cannot be sacrificed for the sake of furthering political agendas, it is also a well established position of law that a stand taken by the state government can be changed subsequently if there is material on record to show that the earlier action of the acquisition of lands by the State Government was illegal or suffers from legal malafides or colourable8. Further, in any case, it is also well settled position of law that this Court is not bound by affidavits and counter affidavits filed by the parties. Ints power under Article 136 of the Constitution of India, this Court can examine the material on record in order to determine whether the action of the previous state government in acquiring the lands in the instant case was in accordance with law or not.The above said preliminary objection, as has been raised by the learned senior counsel appearing on behalf of TML is thus, not accepted. We now proceed to decide the matter on merits.A perusal of the notification issued under Section 4(1) of the L.A. Act extracted supra clearly shows that the proposed lands in the notification are needed for the setting up of the Tata Small Car project in mouza Berabery, P.S. Singur, District Hooghly.54. The Cabinet Memo dated 30.05.2006, extracted supra, at Serial No. 3 mentioned acquisition of lands measuring 1053 acres by WBIDC for theof setting upof the Tata Motors `Small Car Project in the StateThe said Cabinet Memo received the approval of the Chief Minister on 05.06.2006 after which the notification under Section 4 of the L.A. Act was published in the official gazette.55. As far as the proposal is concerned, there is nothing on record to indicate that WBIDC made such requisition to the State Government giving its proposal for acquisition of the proposed lands mentioned in the notification issued under Section 4 of the L.A. Act, which are required for `public purpose as defined under Section 3(f) (iii) of the L.A. Act, which enables the WBIDC to give requisition for acquiring the lands in its favour for the planned development of land out of the public funds in pursuance of any scheme or policy of Government. As is evident from the Notifications issued under the L.A. Act and from the cabinet memo, there is no mention about such requisition being made by the Corporation to the State Government regarding the proposed lands being required for acquisition in favour of WBIDC for planned development of land in pursuance of any scheme or policy of the Government. Even from a perusal of the letter dated 29.08.2006, written by the Joint Secretary, Land and Land Reforms Department, Governmentit becomes clear that the state government did not apply its mind while considering the need of the land and merely followed the document on which the Collector had signed.Even if the argument advanced on behalf of TML were to be accepted, that it was the policy of the state government to generate employment and increase socio economic development in the State, the relevant policy documents are not forthcoming in the original acquisition files which were made available for this Court. Thus, by no stretch of imagination can the acquisition of lands in the instant case beo be at theinstance of WBIDC, or for the fulfilment of some scheme of the Corporation or the State Government. Thus, it cannot be said to attract Section 3(f)(iii), (iv) or (vi) either. On the contrary, what is on record is the minutes of meetings between the representatives of the West Bengal Government and TML dated 17.03.2006, which state that TML is interested in setting up a `special category project in the State to manufacture 2,50,000 units for its `Small Car Project. As per the project requirement mentioned in the letter written by Deputy General Manager TML to the Principal Secretary, Commerce & Industries Department, Governmentof West Bengaldated 19.01.2006, 400 acres of land were required for setting up of the factory, 200 acres for vendor park and 100 acres for township. The said letter was forwarded by the Commerce and Industries Department to the Principal Secretary, Land and Land Reforms Department on 24.01.2006 and the Financeir consideration and seeking their views in this regard. It is undisputed fact that the State Government has not deposited the public money towards the cost of acquisition of land to initiate the acquisition proceedings to show that the acquisition of lands is for public purpose which is an essential requirement under the provision of Section 6 of the L.A. Act. As can be seen, the notification issued under Section 6 of the L.A. Act merely provides that the land is needed for the setting up of the Tata Small Car project, which is a public purpose under the L.A. Act.From a perusal of both the statutory provisions of the L.A. Act as well as the case law on the subject referred to supra upon which strong reliance has been rightly placed by the learned senior counsel on behalf of the owners/cultivators and State Government, it becomes clear that the state government can acquire land under the public purpose clauses (iv) and (vii) of the Act for industrial estates, housing colonies and economic parks/zones even where the type of industry has been identified. So, an acquisition made for an industrial estate of a particular type of industry like small cars is permissible under the `public purpose for theof the L.A. Actunder the above clauses of Section 3 (f) of the Act. Before land could be acquired, the procedure consistent with the statutory provisions of law must be followed mandatorily. There is nothing in law which would support the acquisition of land for a particular Company under theic purpose, rendering the exception provided under Section 3(f)(viii)of the L.A. Act3. In this day and age of fast paced development, it is completely understandable for the state government to want to acquire lands to set up industrial units. What, however, cannot be lost sight of is the fact that when the brunt of this `development is borne by the weakest sections of the society, more so, poor agricultural workers who have no means of raising a voice against the action of the mighty state government, as is the case in the instant fact situation, it is the onerous duty of the state Government to ensure that the mandatory procedure laid down under the L.A. Act and the Rules framed there under are followed scrupulously otherwise the acquisition proceedings will be rendered void ab initio in law. Compliance with the provisionsof the L.A. Actcannot be treated as any by the State Government, as that would be akin to handing over the eminent domainte to the executive, which cannot be permitted in a democratic country which isbe governed by the4. In the instant case, what makes the acquisition proceedings perverse is not the fact that the lands were needed for setting up of an automobile industry, which would help to generate employment as well as promote socio economic development in the State, but what makes the acquisition proceedings perverse is that the proper procedure as laid down under Part VIIof the L.A. Actread with Rules was not followed by the State Government. The acquisition of land for and at the instance of the company was sought to be disguised as acquisition of land for `public purpose in order to circumvent compliance with the mandatory provisions of Part VIIof the L.A.This action of the State Government is grossly perverse and illegal and void ab initio in law and such anof power bythe state government for acquisition of lands cannot be allowed under any circumstance. If such acquisitions of lands are permitted, it would render entire Part VIIof the L.A.as nugatory and redundant, as then virtually every acquisition of land in favour of a company could be justified as one for a `public purpose on the ground that the setting up of industry would generate employment and promote socio economic development in the State. Surely, that could not have been the intention of the legislature in providing the provisions of Part VII read with 3 (f)of the L.A.From a perusal of the materials on record from the original files, the relevant extracts from the letters addressed by TML to the State Governmentof West Bengaland Cabinet notes which have been extracted and discussed supra, it becomes clear that in the instant case, the lands in question were acquired by the State Government for a particular Company (TML), at the instance of that Company. Further, the exact location and site of the land was also identified by TML. Even the notifications issued under Sections 4 and 6of the L.A.clearly state that the land in question was being acquiredfor the `Small CarIn view of the foregoing reasons, by no stretch of imagination can such an acquisition of lands beone for `public purpose and not for a company. If the acquisition of lands in the instant case does not amount to one for the company, I do not know what would.65. In view of the aforesaid categorical findings recorded by me based on the materials on record, including cabinet memo, minutes of meetings between representatives of the state government and TML as well as the notifications issued under Sections 4 and 6of the L.A.1984, it is clear that the acquisition of lands in the instant case is for the Company (TML). Admittedly, the procedure for acquisition as contemplated under Sections 39, 40 and 41 of Part VIIof the L.A.read with Rules 3, 4 and 5 of the Land Acquisition (Companies) Rules, 1963 has not been followed, as the acquisition was sought to be guised as one for `public purpose under Sections 3(f) (iii), (iv) and (vii)of the L.A.The acquisition of land in the instant case in favour of the Company is thus, improper for not following the mandatory procedure prescribed under Part VIIof the L.A.and Rules and therefore the acquisition proceedings are liable to be quashed.66. Further, even after the lands were acquired in its favour, TML could not start operations in accordance with the terms of the lease deed. The same becomes clear from a perusal of the letter dated 28.09.2010 written by the Managing Director, India Operations of TML to the Managing Director ofIn view of the foregoing reasons, Point Nos. 1 and 2 are answered in favour of the land owners/cultivators.From a perusal of the materials on record and original acquisition files, it is evident that a largens were filed by the land owners before the notification was issued under Section 4of the L.A.Act. The samewere not considered properly under Section. Notices were issued to the objectors individually but the same could not be served upon the owners/cultivators of the proposed lands to be acquired. It is further mentioned in the record that the announcements were made through loudspeakers and by publications in the newspapers. It has been submitted by Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the Stateof West Bengalthat once a decision was taken to serve the land owners/cultivators individually then it should have been ensured by the Land Acquisition Collector that the notices were so served. However, the fact that the same was not done is evident from a perusal of the acquisition files maintained by the State Government.Thus, the report of the Collector is not a valid report in the eyes of law. The State Government has mechanically accepted the same without application of mind independently before issuing notification under Section 6of the L.A.declaring that the lands are required for establishment of automobile industry by TML. Therefore, the point nos. 3, 4 and 5 are answered against the State Government and in favour of the land owners/cultivators.After issuing the notifications under Section 6of the L.A.declaring that the lands have been acquired for theal development, a statutory duty is cast upon the Collector to issue notice to the land owners/cultivators, as required under Section 9of the L.A.to determine the market value of the acquired land and award compensation as required under Section 11of the L.A.for taking possessionof the land by the State Government.73. As can be seen from material on record, no individual notices were served upon the land owners/cultivators. A joint inquiry appears to have been conducted by the Land Acquisition Collector without giving them an adequate opportunity to establish their claim for determination of reasonable compensation for acquisition of lands by presenting true and correct market value of the lands. The determination of market value of lands by clubbing aes together and passing a composite award is no award in the eyes of law. The inquiry, as contemplated under Section 11of the L.A.is a quasi judicialer on the part of the Collector in awarding just and reasonable compensation to the landowners/cultivators. That has not been done in the instant case. Further, the proviso to Section 11(1)of the L.A.Act provides thatno award shall be made by the collector without the previous approval of either the appropriate government or such officer authorised by it for the above purpose. It was also brought to the notice of this Court that supplementary awards were also passed which is not legally permissible in law. Forof the above provisionsof the L.A.the composite awards are vitiated in law and therefore, the same are also liable to be quashed.74. Accordingly, the point nos. 6, 7 and 8 are answered in favour of the land owners. | 1 | 21,379 | 2,785 | ### Instruction:
Predict the outcome of the case proceeding (1 for acceptance, 0 for rejection) and subsequently provide an explanation based on significant sentences in the proceeding.
### Input:
the objections pertained to persons who were already running industrial units. The names of the objectors are as follows:"1. Kuldip Maity of Beraberi, P.S. Singur;2. Subir Kumar Pal, Director of M/s Shree Bhumi Steel Pvt. Ltd., P.S. Singur;3. M/s. Shanti Ceramics Pvt. Ltd., P.S. Singur;4. Prashanta Kumar Jana, Vill-Habaspota, Singur;5. M/s. Ajit Services Station on behalf of Tapan Kumar Bera, Advocate;6. M/s. Shree Padma Sagar Exports Pvt. Ltd. of Singherbheri, P.S. Singur"69. Some of these objectors were not given the opportunity to be heard as required under Section 5-A (2) of the L.A. Act. The same ought to have been given to them as required both under the statutory provisions of the L.A. Act as well as the principles of natural justice, as the acquisition of lands of the objectors would entail a serious civil consequence. In the case of Mandir Shri Sita Ramji v. Lt. Governor of Delhi, (1975) 4 SCC 298 a Constitution Bench of this Court has held that it is the mandatory duty cast upon the Collector to follow the provision of Section 5-A (2) of the L.A. Act as under:"5. The learned Single Judge allowed the writ petition on the basis that the appellant had no opportunity of being heard by the Collector under Section 5-A. The duty to afford such an opportunity is mandatory. A decision by the Government on the objection, when the Collector afforded no opportunity of being heard to the objector, would not be proper. The power to hear the objection under Section 5-A is that of the Collector and not of the appropriate Government. It is no doubt true that the recommendation of the Land Acquisition Collector is not binding on the Government. The Government may choose either to accept the recommendation or to reject it; but the requirement of the section is that when a persons property is proposed to be acquired, he must be given an opportunity to show cause against it. Merely because the Government may not choose to accept the recommendation of the Land Acquisition Collector, even when he makes one, it cannot be said that he need not make the recommendation at all but leave it to the Government to decide the matter. In other words, the fact that the Collector is not the authority to decide the objection does not exonerate him from his duty to hear the objector on the objection and make the recommendation."(emphasis laid by this Court)70. In the case of Babu Ram v. State of Haryana, (2009) 10 SCC 115 this Court observed as under:"30. As indicated hereinabove in the various cases cited by Mr. Pradip Ghosh and, in particular, the decision in Krishnan Lal Arneja case, in which reference has been made to the observations made by this Court in Om Prakash case, it has been emphasized that a right under Section 5-A is not merely statutory but also has the flavour of fundamental rights under Articles 14 and 19 of the Constitution. Such observations had been made in reference to an observation made in the earlier decision in Gurdial Singh case and keeping in mind the fact that right to property was no longer a fundamental right, an observation was made that even if the right to property was no longer a fundamental right, the observations relating to Article 14 would continue to apply in full force with regard to Section 5-A of the L.A. Act."(emphasis laid by this Court)From a perusal of the proceedings before the Collector, which are made available to this Court, it becomes clear that the same have been rejected without assigning any clear reasons or application of mind.71. Thus, the report of the Collector is not a valid report in the eyes of law. The State Government has mechanically accepted the same without application of mind independently before issuing notification under Section 6 of the L.A. Act declaring that the lands are required for establishment of automobile industry by TML. Therefore, the point nos. 3, 4 and 5 are answered against the State Government and in favour of the land owners/cultivators.Answer to Point Nos. 6, 7 and 872. After issuing the notifications under Section 6 of the L.A. Act declaring that the lands have been acquired for the purpose of industrial development, a statutory duty is cast upon the Collector to issue notice to the land owners/cultivators, as required under Section 9 of the L.A. Act, to determine the market value of the acquired land and award compensation as required under Section 11 of the L.A. Act which is mandatory for taking possession of the land by the State Government.73. As can be seen from material on record, no individual notices were served upon the land owners/cultivators. A joint inquiry appears to have been conducted by the Land Acquisition Collector without giving them an adequate opportunity to establish their claim for determination of reasonable compensation for acquisition of lands by presenting true and correct market value of the lands. The determination of market value of lands by clubbing a number of cases together and passing a composite award is no award in the eyes of law. The inquiry, as contemplated under Section 11 of the L.A. Act, is a quasi judicial exercise of power on the part of the Collector in awarding just and reasonable compensation to the landowners/cultivators. That has not been done in the instant case. Further, the proviso to Section 11(1) of the L.A. Act provides that no award shall be made by the collector without the previous approval of either the appropriate government or such officer authorised by it for the above purpose. It was also brought to the notice of this Court that supplementary awards were also passed which is not legally permissible in law. For non-compliance of the above provisions of the L.A. Act, the composite awards are vitiated in law and therefore, the same are also liable to be quashed.74. Accordingly, the point nos. 6, 7 and 8 are answered in favour of the land owners.ORDER
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1
### Explanation:
the mandatory provisions of Part VIIof the L.A.This action of the State Government is grossly perverse and illegal and void ab initio in law and such anof power bythe state government for acquisition of lands cannot be allowed under any circumstance. If such acquisitions of lands are permitted, it would render entire Part VIIof the L.A.as nugatory and redundant, as then virtually every acquisition of land in favour of a company could be justified as one for a `public purpose on the ground that the setting up of industry would generate employment and promote socio economic development in the State. Surely, that could not have been the intention of the legislature in providing the provisions of Part VII read with 3 (f)of the L.A.From a perusal of the materials on record from the original files, the relevant extracts from the letters addressed by TML to the State Governmentof West Bengaland Cabinet notes which have been extracted and discussed supra, it becomes clear that in the instant case, the lands in question were acquired by the State Government for a particular Company (TML), at the instance of that Company. Further, the exact location and site of the land was also identified by TML. Even the notifications issued under Sections 4 and 6of the L.A.clearly state that the land in question was being acquiredfor the `Small CarIn view of the foregoing reasons, by no stretch of imagination can such an acquisition of lands beone for `public purpose and not for a company. If the acquisition of lands in the instant case does not amount to one for the company, I do not know what would.65. In view of the aforesaid categorical findings recorded by me based on the materials on record, including cabinet memo, minutes of meetings between representatives of the state government and TML as well as the notifications issued under Sections 4 and 6of the L.A.1984, it is clear that the acquisition of lands in the instant case is for the Company (TML). Admittedly, the procedure for acquisition as contemplated under Sections 39, 40 and 41 of Part VIIof the L.A.read with Rules 3, 4 and 5 of the Land Acquisition (Companies) Rules, 1963 has not been followed, as the acquisition was sought to be guised as one for `public purpose under Sections 3(f) (iii), (iv) and (vii)of the L.A.The acquisition of land in the instant case in favour of the Company is thus, improper for not following the mandatory procedure prescribed under Part VIIof the L.A.and Rules and therefore the acquisition proceedings are liable to be quashed.66. Further, even after the lands were acquired in its favour, TML could not start operations in accordance with the terms of the lease deed. The same becomes clear from a perusal of the letter dated 28.09.2010 written by the Managing Director, India Operations of TML to the Managing Director ofIn view of the foregoing reasons, Point Nos. 1 and 2 are answered in favour of the land owners/cultivators.From a perusal of the materials on record and original acquisition files, it is evident that a largens were filed by the land owners before the notification was issued under Section 4of the L.A.Act. The samewere not considered properly under Section. Notices were issued to the objectors individually but the same could not be served upon the owners/cultivators of the proposed lands to be acquired. It is further mentioned in the record that the announcements were made through loudspeakers and by publications in the newspapers. It has been submitted by Mr. Rakesh Dwivedi, learned senior counsel appearing on behalf of the Stateof West Bengalthat once a decision was taken to serve the land owners/cultivators individually then it should have been ensured by the Land Acquisition Collector that the notices were so served. However, the fact that the same was not done is evident from a perusal of the acquisition files maintained by the State Government.Thus, the report of the Collector is not a valid report in the eyes of law. The State Government has mechanically accepted the same without application of mind independently before issuing notification under Section 6of the L.A.declaring that the lands are required for establishment of automobile industry by TML. Therefore, the point nos. 3, 4 and 5 are answered against the State Government and in favour of the land owners/cultivators.After issuing the notifications under Section 6of the L.A.declaring that the lands have been acquired for theal development, a statutory duty is cast upon the Collector to issue notice to the land owners/cultivators, as required under Section 9of the L.A.to determine the market value of the acquired land and award compensation as required under Section 11of the L.A.for taking possessionof the land by the State Government.73. As can be seen from material on record, no individual notices were served upon the land owners/cultivators. A joint inquiry appears to have been conducted by the Land Acquisition Collector without giving them an adequate opportunity to establish their claim for determination of reasonable compensation for acquisition of lands by presenting true and correct market value of the lands. The determination of market value of lands by clubbing aes together and passing a composite award is no award in the eyes of law. The inquiry, as contemplated under Section 11of the L.A.is a quasi judicialer on the part of the Collector in awarding just and reasonable compensation to the landowners/cultivators. That has not been done in the instant case. Further, the proviso to Section 11(1)of the L.A.Act provides thatno award shall be made by the collector without the previous approval of either the appropriate government or such officer authorised by it for the above purpose. It was also brought to the notice of this Court that supplementary awards were also passed which is not legally permissible in law. Forof the above provisionsof the L.A.the composite awards are vitiated in law and therefore, the same are also liable to be quashed.74. Accordingly, the point nos. 6, 7 and 8 are answered in favour of the land owners.
|
United India Insurance Co Ltd Vs. M/S.Pushpalaya Printers | sustainability of the claim depended upon the interpretation of Clause 5 of the insurance policy. The District Forum took a narrow view that the word "impact" contained in clause 5 of the insurance policy covered risk of only contingent impact of a road vehicle forcibly coming in contact with another. It held that the damage caused to the building and machinery in the instant case was not due to such forcible contact but it was due to the consequential effect of vibration on account of operating of a bulldozer by the side of the respondents printing press building and as such it was not covered by clause 5 of the insurance policy; thus, there being no deficiency of service on the part of the appellant the complaint filed by the respondent was not maintainable. 4. According to the State Commission the only point, which arouse for decision in the appeal was whether the damage caused to the building and the machinery of the respondent was the resultant of the impact of the bulldozer. Considering the meaning of the word "impact" given in various dictionaries the State Commission took the view that when the word "impact" has got meanings more than one and the word "impact" not only means "coming forcibly in contact with another", it also means "to drive close", "effective action of the thing upon another" and "effect of such action". The "impact" covered damage caused to the building and machinery in view of the admitted fact that such damage was caused because of close drive by the bulldozer on the road. Expressing thus the State Commission set aside the order of the District Forum and granted relief to the respondent. 5. The National Commission concurring with the view expressed by the State commission interpreting the expression "impact" observed that the said word has to be construed liberally and in its wider sense. 6. The only point that arises for consideration is whether the word "impact" contained in clause 5 of the insurance policy covers the damage caused to the building and machinery due to driving of the bulldozer on the road close to the building. It is evident from the terms of the insurance policy that the property was insured as against destruction or damage to whole or part. The appellant company agreed to pay towards destruction or damage to the property insured to the extent of its liability on account of various happenings. In the present case both the parties relied on clause 5 of the insurance policy. Clause 5 is also subject to exclusions contained in the insurance policy. That a damage caused to the building of machinery on account of driving of vehicle on the road close to the building is not excluded. Clause 5 speaks of "impact" by any rail/road vehicle or animal. If the appellant company wanted to exclude any damage or destruction caused on account of driving of vehicle on the road close to the building, it could have expressly excluded. The insured possibly did not understand and expect that the destruction and damage to the building and machinery is confined only to the direct collusion by vehicle moving on the road to the building or machinery. In the ordinary course, the question of a vehicle directly dashing the building or the machinery inside the building does not arise. Further, "impact" by road vehicle found in the company of other words in the same clause 5 normally indicates that damage caused to the building on account of vibration by driving of vehicle close to the road is also included. In order to interpret this clause, it is also necessary to gather the intention of the parties from the words used in the policy. If the word "impact" is interpreted narrowly the question of impact by any rail would not arise as the question of a rail forcibly coming to the contact of a building or machinery would not arise. In the absence of specific exclusion and the word "impact" having more meanings in the context, it cannot be confined to forcible contact alone when it includes the meanings "to drive close", "effective action of the one thing upon another" and "the effect of such action", it is reasonable and fair to hold in the context that the word "impact" contained in clause 5 of the insurance policy covers the case of the respondent to say that damage caused to the building and machinery on account of the bulldozer moving closely on the road was on account of its "impact". It is also settled position in law that if there is any ambiguity or a term is capable of two possible interpretations one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken, namely, to cover the risk on the happening of certain event. Although there is no ambiguity in the expression "impact", even otherwise applying the rule of contra proferentem, the use of the word "impact" in clause 5 in the instant policy must be construed against the appellant. Where the words of a document are ambiguous, they shall be construed against the party who prepared the document. This rule applies to contracts of insurance and clause 5 of the insurance policy even after reading the entire policy in the present case should be construed against the insurer. A Constitution Bench of this Court in General Assurance Society Ltd. vs. Chandumull Jain & Anr. [1966 (3) SCR 500 ] has expressed that "in a contract of insurance, there is requirement of uberrima fides, i.e. good faith on the part of the assured and the contract is likely to be construed contra proferentem i.e. against the company in case of ambiguity or doubt." 7. In the light of what is stated above, no fault can be found with the impugned order. The interpretation placed by the State Commission as well as by the National Commission in relation to the expression "impact" is in order and appropriate. | 0[ds]It is evident from the terms of the insurance policy that the property was insured as against destruction or damage to whole or part. The appellant company agreed to pay towards destruction or damage to the property insured to the extent of its liability on account of various happenings. In the present case both the parties relied on clause 5 of the insurance policy. Clause 5 is also subject to exclusions contained in the insurance policy. That a damage caused to the building of machinery on account of driving of vehicle on the road close to the building is not excluded. Clause 5 speaks of "impact" by any rail/road vehicle or animal. If the appellant company wanted to exclude any damage or destruction caused on account of driving of vehicle on the road close to the building, it could have expressly excluded. The insured possibly did not understand and expect that the destruction and damage to the building and machinery is confined only to the direct collusion by vehicle moving on the road to the building or machinery. In the ordinary course, the question of a vehicle directly dashing the building or the machinery inside the building does not arise. Further, "impact" by road vehicle found in the company of other words in the same clause 5 normally indicates that damage caused to the building on account of vibration by driving of vehicle close to the road is also included. In order to interpret this clause, it is also necessary to gather the intention of the parties from the words used in the policy. If the word "impact" is interpreted narrowly the question of impact by any rail would not arise as the question of a rail forcibly coming to the contact of a building or machinery would not arise. In the absence of specific exclusion and the word "impact" having more meanings in the context, it cannot be confined to forcible contact alone when it includes the meanings "to drive close", "effective action of the one thing upon another" and "the effect of such action", it is reasonable and fair to hold in the context that the word "impact" contained in clause 5 of the insurance policy covers the case of the respondent to say that damage caused to the building and machinery on account of the bulldozer moving closely on the road was on account of its "impact". It is also settled position in law that if there is any ambiguity or a term is capable of two possible interpretations one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken, namely, to cover the risk on the happening of certain event. Although there is no ambiguity in the expression "impact", even otherwise applying the rule of contra proferentem, the use of the word "impact" in clause 5 in the instant policy must be construed against the appellant. Where the words of a document are ambiguous, they shall be construed against the party who prepared the document. This rule applies to contracts of insurance and clause 5 of the insurance policy even after reading the entire policy in the present case should be construed against the insurer.In the light of what is stated above, no fault can be found with the impugned order. The interpretation placed by the State Commission as well as by the National Commission in relation to the expression "impact" is in order and appropriate. | 0 | 1,769 | 637 | ### 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:
sustainability of the claim depended upon the interpretation of Clause 5 of the insurance policy. The District Forum took a narrow view that the word "impact" contained in clause 5 of the insurance policy covered risk of only contingent impact of a road vehicle forcibly coming in contact with another. It held that the damage caused to the building and machinery in the instant case was not due to such forcible contact but it was due to the consequential effect of vibration on account of operating of a bulldozer by the side of the respondents printing press building and as such it was not covered by clause 5 of the insurance policy; thus, there being no deficiency of service on the part of the appellant the complaint filed by the respondent was not maintainable. 4. According to the State Commission the only point, which arouse for decision in the appeal was whether the damage caused to the building and the machinery of the respondent was the resultant of the impact of the bulldozer. Considering the meaning of the word "impact" given in various dictionaries the State Commission took the view that when the word "impact" has got meanings more than one and the word "impact" not only means "coming forcibly in contact with another", it also means "to drive close", "effective action of the thing upon another" and "effect of such action". The "impact" covered damage caused to the building and machinery in view of the admitted fact that such damage was caused because of close drive by the bulldozer on the road. Expressing thus the State Commission set aside the order of the District Forum and granted relief to the respondent. 5. The National Commission concurring with the view expressed by the State commission interpreting the expression "impact" observed that the said word has to be construed liberally and in its wider sense. 6. The only point that arises for consideration is whether the word "impact" contained in clause 5 of the insurance policy covers the damage caused to the building and machinery due to driving of the bulldozer on the road close to the building. It is evident from the terms of the insurance policy that the property was insured as against destruction or damage to whole or part. The appellant company agreed to pay towards destruction or damage to the property insured to the extent of its liability on account of various happenings. In the present case both the parties relied on clause 5 of the insurance policy. Clause 5 is also subject to exclusions contained in the insurance policy. That a damage caused to the building of machinery on account of driving of vehicle on the road close to the building is not excluded. Clause 5 speaks of "impact" by any rail/road vehicle or animal. If the appellant company wanted to exclude any damage or destruction caused on account of driving of vehicle on the road close to the building, it could have expressly excluded. The insured possibly did not understand and expect that the destruction and damage to the building and machinery is confined only to the direct collusion by vehicle moving on the road to the building or machinery. In the ordinary course, the question of a vehicle directly dashing the building or the machinery inside the building does not arise. Further, "impact" by road vehicle found in the company of other words in the same clause 5 normally indicates that damage caused to the building on account of vibration by driving of vehicle close to the road is also included. In order to interpret this clause, it is also necessary to gather the intention of the parties from the words used in the policy. If the word "impact" is interpreted narrowly the question of impact by any rail would not arise as the question of a rail forcibly coming to the contact of a building or machinery would not arise. In the absence of specific exclusion and the word "impact" having more meanings in the context, it cannot be confined to forcible contact alone when it includes the meanings "to drive close", "effective action of the one thing upon another" and "the effect of such action", it is reasonable and fair to hold in the context that the word "impact" contained in clause 5 of the insurance policy covers the case of the respondent to say that damage caused to the building and machinery on account of the bulldozer moving closely on the road was on account of its "impact". It is also settled position in law that if there is any ambiguity or a term is capable of two possible interpretations one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken, namely, to cover the risk on the happening of certain event. Although there is no ambiguity in the expression "impact", even otherwise applying the rule of contra proferentem, the use of the word "impact" in clause 5 in the instant policy must be construed against the appellant. Where the words of a document are ambiguous, they shall be construed against the party who prepared the document. This rule applies to contracts of insurance and clause 5 of the insurance policy even after reading the entire policy in the present case should be construed against the insurer. A Constitution Bench of this Court in General Assurance Society Ltd. vs. Chandumull Jain & Anr. [1966 (3) SCR 500 ] has expressed that "in a contract of insurance, there is requirement of uberrima fides, i.e. good faith on the part of the assured and the contract is likely to be construed contra proferentem i.e. against the company in case of ambiguity or doubt." 7. In the light of what is stated above, no fault can be found with the impugned order. The interpretation placed by the State Commission as well as by the National Commission in relation to the expression "impact" is in order and appropriate.
### Response:
0
### Explanation:
It is evident from the terms of the insurance policy that the property was insured as against destruction or damage to whole or part. The appellant company agreed to pay towards destruction or damage to the property insured to the extent of its liability on account of various happenings. In the present case both the parties relied on clause 5 of the insurance policy. Clause 5 is also subject to exclusions contained in the insurance policy. That a damage caused to the building of machinery on account of driving of vehicle on the road close to the building is not excluded. Clause 5 speaks of "impact" by any rail/road vehicle or animal. If the appellant company wanted to exclude any damage or destruction caused on account of driving of vehicle on the road close to the building, it could have expressly excluded. The insured possibly did not understand and expect that the destruction and damage to the building and machinery is confined only to the direct collusion by vehicle moving on the road to the building or machinery. In the ordinary course, the question of a vehicle directly dashing the building or the machinery inside the building does not arise. Further, "impact" by road vehicle found in the company of other words in the same clause 5 normally indicates that damage caused to the building on account of vibration by driving of vehicle close to the road is also included. In order to interpret this clause, it is also necessary to gather the intention of the parties from the words used in the policy. If the word "impact" is interpreted narrowly the question of impact by any rail would not arise as the question of a rail forcibly coming to the contact of a building or machinery would not arise. In the absence of specific exclusion and the word "impact" having more meanings in the context, it cannot be confined to forcible contact alone when it includes the meanings "to drive close", "effective action of the one thing upon another" and "the effect of such action", it is reasonable and fair to hold in the context that the word "impact" contained in clause 5 of the insurance policy covers the case of the respondent to say that damage caused to the building and machinery on account of the bulldozer moving closely on the road was on account of its "impact". It is also settled position in law that if there is any ambiguity or a term is capable of two possible interpretations one beneficial to the insured should be accepted consistent with the purpose for which the policy is taken, namely, to cover the risk on the happening of certain event. Although there is no ambiguity in the expression "impact", even otherwise applying the rule of contra proferentem, the use of the word "impact" in clause 5 in the instant policy must be construed against the appellant. Where the words of a document are ambiguous, they shall be construed against the party who prepared the document. This rule applies to contracts of insurance and clause 5 of the insurance policy even after reading the entire policy in the present case should be construed against the insurer.In the light of what is stated above, no fault can be found with the impugned order. The interpretation placed by the State Commission as well as by the National Commission in relation to the expression "impact" is in order and appropriate.
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Union Of India Vs. Devjee Mishra | Court to warrant remand of Court Martial Proceedings. Even the Division Bench has failed to consider the matter in right perspective and especially to examine the plea of the appellants asserted in the two counter affidavits filed to oppose the writ petition, including on the question of genuineness of Annexures 19 and 24. Notably, the Division Bench having perused the original records and found that the letters were not part of the Court Martial Proceedings and that the Officials of the District Court Martial had acted bonafide and fairly, should have accepted the plea of the appellants that these letters (Annexures 19 and 24) were afterthought and in any case cannot be made the basis to question the validity of Court Martial Proceedings and in particular the voluntary confession made by the respondent thereat. 14. In our opinion, in the fact situation of the present case, the High Court committed manifest error in interfering with the impugned decision of the Competent Authority of awarding sentence and punishment to the respondent for the two charges in respect of which he had pleaded guilty. 15. The learned counsel for the respondent would then contend that if the impugned order was to be revived by this Court, the same be at least modified to one of discharge - so that the respondent would be able to get retiral benefits for having served for 13 years and 4 months in the Air Force. This submission though attractive at the first blush, does not commend us. The misconduct for which the respondent has been sentenced and punished is not the first of its kind committed by him. Even in the past he indulged in similar misconduct. Moreover, the respondent indulged in making reckless and frivolous allegations against his superiors even in the past and was not serious enough in serving the Air Force. He overstayed the leave period after his marriage was fixed on 10th February, 2003 on the specious ground that he was unwell and was undergoing medical treatment. The Competent Authority having taken notice of all the attending circumstances chose to impose punishment of dismissal. We cannot impose our opinion or substitute the subjective satisfaction reached by the Competent Authority in that regard. 16. The learned Counsel for the appellants further submitted that as per the Pension Regulations applicable to Air Force personnel, the respondent will not be eligible for pension or gratuity in respect of his previous service. For that he relied on the Circular issued by the Deputy Secretary to the Govt. of India, dated 25th April, 2001, which reads thus :- 25 April 2001?To, The Chief of the Air Staff Subject : Amendment to Regulation 16 and 102 of Pension Regulations for the Air Force, 1961, Part I Sir, 1. I am directed to state that under the provisions of Regulations 102 (a) of Pension Regulations for the Air Force (Part I), 1961 as amended vide CS No. 71/IV/67 an airman who is dismissed or removed under the provisions of the Air Force Act is ineligible for pension and gratuity in respect of all previous service though in exceptional cases. President may at his discretion, grant pension gratuity at a rate not exceeding that for which he would have otherwise qualified had he been discharged on the same date. Similar provisions in respect of Commissioned Officers do not exist vide Regulation 16 of Pension Regulations for the Air Force (Part I), 1961. The disparity in the provisions has been engaging attention of the Government for some time past. 2. It has now been decided that all Indian Air Force Personnel including commissioned officers who are cashiered / dismissed under the provisions of Air Force Act, 1950 or removed / compulsorily retired under Rule 16 of AF Rules, 1969 i.e. as a measure of penalty, will be ineligible for pension or gratuity in respect of all previous service. In exceptional cases, however, the Competent Authority on submission of an appeal to that effect may at his discretion sanction pension / gratuity or both at a rate not exceeding that which would be otherwise admissible had the individual so cashiered / dismissed /removed been retired discharged on the same date in the normal manner. 3. An individual who is compulsorily retired or removed on grounds other than misconduct or discharged under the provisions of Air Force Act, 1950 and the rules made thereunder, remains eligible for pension and/or gratuity as admissible on the date of discharge. This will also apply to cases of dismissal/removal. 4. All appeals to the Competent Authority in this regard will be preferred within two years of the date of cashiering/dismissal/removal. 5. Competent Authority both for Commissioned Officers and PBORs for Regulations 16 and 102 of Pension Regulations for the Air Force 1961 will be the president of India. 6. Pension Regulations for the Air Force will be amended in respect of the above provisions in due course. 7. The provisions of this letter shall come into effect from the date of issue of this letter. However, past cases will be decided as hither-to-fore. Yours faithfully, Sd/-XXX (Amrit Lal) Deputy Secretary to the Government of India?(emphasis supplied) We are not inclined to express any opinion on this contention as we find that there is discretion vested in the Competent Authority to sanction pension / gratuity or both, in exceptional cases. Even though the respondent has been dismissed from service, he is free to pursue that remedy, if so advised. The Competent Authority may consider the said representation in accordance with law. We reiterate that we may not be understood to have expressed any opinion in that regard. 17. In view of the above, this appeal must succeed. Hence, the judgment of the learned Single Judge dated 15th July, 2008, and the order of the Division Bench dated 23rd June, 2009 are set aside. Instead, the Court Martial Proceedings dated 17th June, 2004 as also the order dated 2nd July, 2004 promulgating the same are restored and revived. 18. | 1[ds]The misconduct for which the respondent has been sentenced and punished is not the first of its kind committed by him. Even in the past he indulged in similar misconduct. Moreover, the respondent indulged in making reckless and frivolous allegations against his superiors even in the past and was not serious enough in serving the Air Force. He overstayed the leave period after his marriage was fixed on 10th February, 2003 on the specious ground that he was unwell and was undergoing medical treatment. The Competent Authority having taken notice of all the attending circumstances chose to impose punishment of dismissal. We cannot impose our opinion or substitute the subjective satisfaction reached by the Competent Authority in that regard.In our opinion, in the fact situation of the present case, the High Court committed manifest error in interfering with the impugned decision of the Competent Authority of awarding sentence and punishment to the respondent for the two charges in respect of which he had pleadedfind that there is discretion vested in the Competent Authority to sanction pension / gratuity or both, in exceptional cases. Even though the respondent has been dismissed from service, he is free to pursue that remedy, if so advised. The Competent Authority may consider the said representation in accordance with law. We reiterate that we may not be understood to have expressed any opinion in thatappeal must succeed. Hence, the judgment of the learned Single Judge dated 15th July, 2008, and the order of the Division Bench dated 23rd June, 2009 are set aside. Instead, the Court Martial Proceedings dated 17th June, 2004 as also the order dated 2nd July, 2004 promulgating the same are restored and | 1 | 5,592 | 309 | ### 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:
Court to warrant remand of Court Martial Proceedings. Even the Division Bench has failed to consider the matter in right perspective and especially to examine the plea of the appellants asserted in the two counter affidavits filed to oppose the writ petition, including on the question of genuineness of Annexures 19 and 24. Notably, the Division Bench having perused the original records and found that the letters were not part of the Court Martial Proceedings and that the Officials of the District Court Martial had acted bonafide and fairly, should have accepted the plea of the appellants that these letters (Annexures 19 and 24) were afterthought and in any case cannot be made the basis to question the validity of Court Martial Proceedings and in particular the voluntary confession made by the respondent thereat. 14. In our opinion, in the fact situation of the present case, the High Court committed manifest error in interfering with the impugned decision of the Competent Authority of awarding sentence and punishment to the respondent for the two charges in respect of which he had pleaded guilty. 15. The learned counsel for the respondent would then contend that if the impugned order was to be revived by this Court, the same be at least modified to one of discharge - so that the respondent would be able to get retiral benefits for having served for 13 years and 4 months in the Air Force. This submission though attractive at the first blush, does not commend us. The misconduct for which the respondent has been sentenced and punished is not the first of its kind committed by him. Even in the past he indulged in similar misconduct. Moreover, the respondent indulged in making reckless and frivolous allegations against his superiors even in the past and was not serious enough in serving the Air Force. He overstayed the leave period after his marriage was fixed on 10th February, 2003 on the specious ground that he was unwell and was undergoing medical treatment. The Competent Authority having taken notice of all the attending circumstances chose to impose punishment of dismissal. We cannot impose our opinion or substitute the subjective satisfaction reached by the Competent Authority in that regard. 16. The learned Counsel for the appellants further submitted that as per the Pension Regulations applicable to Air Force personnel, the respondent will not be eligible for pension or gratuity in respect of his previous service. For that he relied on the Circular issued by the Deputy Secretary to the Govt. of India, dated 25th April, 2001, which reads thus :- 25 April 2001?To, The Chief of the Air Staff Subject : Amendment to Regulation 16 and 102 of Pension Regulations for the Air Force, 1961, Part I Sir, 1. I am directed to state that under the provisions of Regulations 102 (a) of Pension Regulations for the Air Force (Part I), 1961 as amended vide CS No. 71/IV/67 an airman who is dismissed or removed under the provisions of the Air Force Act is ineligible for pension and gratuity in respect of all previous service though in exceptional cases. President may at his discretion, grant pension gratuity at a rate not exceeding that for which he would have otherwise qualified had he been discharged on the same date. Similar provisions in respect of Commissioned Officers do not exist vide Regulation 16 of Pension Regulations for the Air Force (Part I), 1961. The disparity in the provisions has been engaging attention of the Government for some time past. 2. It has now been decided that all Indian Air Force Personnel including commissioned officers who are cashiered / dismissed under the provisions of Air Force Act, 1950 or removed / compulsorily retired under Rule 16 of AF Rules, 1969 i.e. as a measure of penalty, will be ineligible for pension or gratuity in respect of all previous service. In exceptional cases, however, the Competent Authority on submission of an appeal to that effect may at his discretion sanction pension / gratuity or both at a rate not exceeding that which would be otherwise admissible had the individual so cashiered / dismissed /removed been retired discharged on the same date in the normal manner. 3. An individual who is compulsorily retired or removed on grounds other than misconduct or discharged under the provisions of Air Force Act, 1950 and the rules made thereunder, remains eligible for pension and/or gratuity as admissible on the date of discharge. This will also apply to cases of dismissal/removal. 4. All appeals to the Competent Authority in this regard will be preferred within two years of the date of cashiering/dismissal/removal. 5. Competent Authority both for Commissioned Officers and PBORs for Regulations 16 and 102 of Pension Regulations for the Air Force 1961 will be the president of India. 6. Pension Regulations for the Air Force will be amended in respect of the above provisions in due course. 7. The provisions of this letter shall come into effect from the date of issue of this letter. However, past cases will be decided as hither-to-fore. Yours faithfully, Sd/-XXX (Amrit Lal) Deputy Secretary to the Government of India?(emphasis supplied) We are not inclined to express any opinion on this contention as we find that there is discretion vested in the Competent Authority to sanction pension / gratuity or both, in exceptional cases. Even though the respondent has been dismissed from service, he is free to pursue that remedy, if so advised. The Competent Authority may consider the said representation in accordance with law. We reiterate that we may not be understood to have expressed any opinion in that regard. 17. In view of the above, this appeal must succeed. Hence, the judgment of the learned Single Judge dated 15th July, 2008, and the order of the Division Bench dated 23rd June, 2009 are set aside. Instead, the Court Martial Proceedings dated 17th June, 2004 as also the order dated 2nd July, 2004 promulgating the same are restored and revived. 18.
### Response:
1
### Explanation:
The misconduct for which the respondent has been sentenced and punished is not the first of its kind committed by him. Even in the past he indulged in similar misconduct. Moreover, the respondent indulged in making reckless and frivolous allegations against his superiors even in the past and was not serious enough in serving the Air Force. He overstayed the leave period after his marriage was fixed on 10th February, 2003 on the specious ground that he was unwell and was undergoing medical treatment. The Competent Authority having taken notice of all the attending circumstances chose to impose punishment of dismissal. We cannot impose our opinion or substitute the subjective satisfaction reached by the Competent Authority in that regard.In our opinion, in the fact situation of the present case, the High Court committed manifest error in interfering with the impugned decision of the Competent Authority of awarding sentence and punishment to the respondent for the two charges in respect of which he had pleadedfind that there is discretion vested in the Competent Authority to sanction pension / gratuity or both, in exceptional cases. Even though the respondent has been dismissed from service, he is free to pursue that remedy, if so advised. The Competent Authority may consider the said representation in accordance with law. We reiterate that we may not be understood to have expressed any opinion in thatappeal must succeed. Hence, the judgment of the learned Single Judge dated 15th July, 2008, and the order of the Division Bench dated 23rd June, 2009 are set aside. Instead, the Court Martial Proceedings dated 17th June, 2004 as also the order dated 2nd July, 2004 promulgating the same are restored and
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Shiv Kumar Chadha Vs. Municipal Corporation of Delhi & Others | of Order 39 of the Code requires that in all cases the Court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of grating the injunction would be defeated by delay ....... 32. It has come to our notice that in spite of the aforesaid statutory requirement, the Courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that Court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant. 33. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. The proviso was introduced to provide a condition, where Court proposes to giant an injunction without giving notice of the application to the opposite parrty, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court shall record the reasons why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statuate or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non- compliance thereof will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not obli- gatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor, (1875) 1 Ch.D. 426, Nazir Ahmed v. Emperor, AIR 1936 PC 253 . This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915 . 34. As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme Court Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English Courts saying: Ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion. .... An ex parte injunction should generally be until a certain day, usually the next motion day ... | 1[ds]27. According to us, it cannot be urged that the provisions of the Act have created any right or liability and for enforcement thereof remedy has been provided under the Act itself. The Act purports to regulate the common law right of the citizens to erect or construct buildings of their choice. This right existed since time immemorial. But with the urbanisa- tion and development of the concept of planned city, regulations, restrictions, on such common law right have been imposed. But as the provisions of the Act intend to regulate and restrict a common law right, and not any right or liability created under the Act itself, it cannot be said that the right and the remedy have been given uno flatu e.g. in the same breath. Most of the cases of this Court referred to above related to statutes creating rights or liabilities and providing remedies at the same time. As such the principles enunciated therein, shall not be fully applicable in the present case. In spite of the bar prescribed under Sub-sections (4) and (5) of Section 343 and Section 347E of the Corporation Act over the power of the Courts, under certain special circumstances, the Court can examine, whether the dispute falls with-in the ambit of the Act. But once the Court is satisfied that either the provisions of the Act are not applicable to the building in question or the basic procedural requirements which are vital in nature, have not been followed, it shall have jurisdiction, to enquire and investigate while protect- ing the common law rights of the citizens. Can a Court hold a suit to be not maintainable, although along with the plaint materials are produced to show that the building in question is not within the Corporation limits, or that the constructions were made prior to coming into force of the relevant provisions of the Act? We are conscious of the fact that persons who make unauthorised constructions by contravening and violating the building bye- laws or regulations often run to Courts, with pleas mentioned above, specially that no notice was issued or served on them, before the Corporation has ordered the demolition of the construction28. It is well-known that in most of the cities building regulations and bye-laws have been framed, still it has been discovered that construc- tions have been made without any sanction or in contravention of the sanctioned plan, and such constructions have continued without any interven- tion. There cannot be two opinions that the regulations and bye-laws in respect of buildings, are meant to serve the public interest. But at the same time it cannot be held that in all circumstances, the authorities entrusted with the demolition of unauthorised constructions, have exclusive power, to the absolute exclusion of the power of the Court. In some special cases where jurisdictional error on the part of the Corporation is established, a suit shall be maintainable. According to us,(1) The Court should not ordinarily entertain a suit in connection with the proceedings initiated for demolition, by the Commis- sioner, in terms of Section 343(1) of the Corporation Act. The Court should direct the persons aggrieved to pursue the remedy before the Appellate Tribunal and then before the Administrator in accordance with the provisions of the said Act(2) The Court should entertain a suit questioing the validity of an order passed under Section 343 of the Act, only if the Court is of prima facie opinion that the order is nullity in the eyes of law because of any jurisdictional error in exercise of the power by the Commissioner or that the order is outside the Act29. It need not be said that primary object of filing a suit challenging the validity of the order of demolition is to restrain such demolition with the intervention of the Court. In such a suit the plaintiff is more interested in getting an order of interim injunction. It has been pointed out repeatedly that a party is not entitled to an order of injunction as a matter of right or course. Grant of injunction is within the discretion of the Court and such discretion is to be exercised in favour of the plaintiff only if it is proved to the satisfaction of the Court that unless the defendant is restrained by an order of injunction, an irreparable loss or damage will be caused to the plaintiff during the pendency of the suit. The purpose of temporary injunction is, thus, to maintain the status quo. The Court grants such relief according to the legal principles of debite justitiae. Before any such order is passed the Court must be satisfied that a strong prima facie case has been made out by the plaintiff including on the question of maintainability of the suit and the balance of convenience is in his favour and refusal of injunction would cause irreparable injury to him30. Under the changed circumstance with so many cases pending in Courts, once an interim order of injunction is passed, in many cases, such interim orders continue for months; if not for years. At final hearing while vacating such interim orders of injunction in many cases, it has been discovered that while protecting the plaintiffs from suffering the alleged injury, more serious injury has been caused to the defendants due to continuance of interim orders of injunction without final hearing. It is a matter of common knowledge that on many occasions even public interest also suffers in view of such interim orders of injunction, because persons in whose favour such orders are passed are interested in perpetuating the contraventions made by them by delaying the final disposal of such applica- tions. The Court should be always willing to extend its hand to protect a citizen who is being wronged or is being deprived of a property without any authority in law or without following the procedure which are fundamental and vital in nature. But at the same time the judicial proceedings cannot be used to protect or to perpetuate a wrong committed by a person who approaches the Court31. Power to grant injunction is an extraordinary power vested in the Court to be exercised taking into consideration the facts and circum- stances of a particular case. The Courts have to be more cautious when the said power is being exercised without notice or hearing the party who is to be affected by the order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the Court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of grating the injunction would be defeated by delay32. It has come to our notice that in spite of the aforesaid statutory requirement, the Courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that Court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant33. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. The proviso was introduced to provide a condition, where Court proposes to giant an injunction without giving notice of the application to the opposite parrty, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court shall record the reasons why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statuate or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non- compliance thereof will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not obli- gatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor, (1875) 1 Ch.D. 426, Nazir Ahmed v. Emperor, AIR 1936 PC 253 . This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915 34. As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme Court Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English Courts saying:Ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion.An ex parte injunction should generally be until a certain day, usually the next motion day | 1 | 6,765 | 2,242 | ### 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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of Order 39 of the Code requires that in all cases the Court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of grating the injunction would be defeated by delay ....... 32. It has come to our notice that in spite of the aforesaid statutory requirement, the Courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that Court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant. 33. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. The proviso was introduced to provide a condition, where Court proposes to giant an injunction without giving notice of the application to the opposite parrty, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court shall record the reasons why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statuate or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non- compliance thereof will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not obli- gatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor, (1875) 1 Ch.D. 426, Nazir Ahmed v. Emperor, AIR 1936 PC 253 . This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915 . 34. As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme Court Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English Courts saying: Ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion. .... An ex parte injunction should generally be until a certain day, usually the next motion day ...
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order so passed. That is why Rule 3 of Order 39 of the Code requires that in all cases the Court shall, before grant of an injunction, direct notice of the application to be given to the opposite party, except where it appears that object of granting injunction itself would be defeated by delay. By the Civil Procedure Code (Amendment) Act, 1976, a proviso has been added to the said rule saying that where it is proposed to grant an injunction without giving notice of the application to the opposite party, the Court shall record the reasons for its opinion that the object of grating the injunction would be defeated by delay32. It has come to our notice that in spite of the aforesaid statutory requirement, the Courts have been passing orders of injunction before issuance of notices or hearing the parties against whom such orders are to operate without recording the reasons for passing such orders. It is said that if the reasons for grant of injunction are mentioned, a grievance can be made by the other side that Court has prejudged the issues involved in the suit. According to us, this is a misconception about the nature and the scope of interim orders. It need not be pointed out that any opinion expressed in connection with an interlocutory application has no bearing and shall not affect any party, at the stage of the final adjudication. Apart from that now in view of the proviso to Rule 3 aforesaid, there is no scope for any argument. When the statute itself requires reasons to be recorded, the Court cannot ignore that requirement by saying that if reasons are recorded, it may amount to expressing an opinion in favour of the plaintiff before hearing the defendant33. The imperative nature of the proviso has to be judged in the context of Rule 3 of Order 39 of the Code. Before the proviso aforesaid was introduced, Rule 3 said the Court shall in all cases, except where it appears that the object of granting the injunction would be defeated by the delay, before granting an injunction, direct notice of the application for the same to be given to the opposite party. The proviso was introduced to provide a condition, where Court proposes to giant an injunction without giving notice of the application to the opposite parrty, being of the opinion that the object of granting injunction itself shall be defeated by delay. The condition so introduced is that the Court shall record the reasons why an ex parte order of injunction was being passed in the facts and circumstances of a particular case. In this background, the requirement for recording the reasons for grant of ex parte injunction, cannot be held to be a mere formality. This requirement is consistent with the principle, that a party to a suit, who is being restrained from exercising a right which such party claims to exercise either under a statuate or under the common law, must be informed why instead of following the requirement of Rule 3, the procedure prescribed under the proviso has been followed. The party who invokes the jurisdiction of the Court for grant of an order of restraint against a party, without affording an opportunity to him of being heard, must satisfy the Court about the gravity of the situation and Court has to consider briefly these factors in the ex parte order. We are quite conscious of the fact that there are other statutes which contain similar provisions requiring the Court or the authority concerned to record reasons before exercising power vested in them. In respect of some of such provisions it has been held that they are required to be complied with but non- compliance thereof will not vitiate the order so passed. But same cannot be said in respect of the proviso to Rule 3 of Order 39. The Parliament has prescribed a particular procedure for passing of an order of injunction without notice to the other side, under exceptional circumstances. Such ex parte orders have far reaching effect, as such a condition has been imposed that Court must record reasons before passing such order. If it is held that the compliance of the proviso aforesaid is optional and not obli- gatory, then the introduction of the proviso by the Parliament shall be a futile exercise and that part of Rule 3 will be a surplusage for all practical purpose. Proviso to Rule 3 of Order 39 of the Code, attracts the principle, that if a statute requires a thing to be done in a particular manner, it should be done in that manner or not all. This principle was approved and accepted in well-known cases of Taylor v. Taylor, (1875) 1 Ch.D. 426, Nazir Ahmed v. Emperor, AIR 1936 PC 253 . This Court has also expressed the same view in respect of procedural requirement of the Bombay Tenancy and Agricultural Lands Act in the case of Ramchandra Keshav Adke v. Govind Joti Chavare, AIR 1975 SC 915 34. As such whenever a Court considers it necessary in the facts and circumstances of a particular case to pass an order of injunction without notice to other side, it must record the reasons for doing so and should take into consideration, while passing an order of injunction, all relevant factors, including as to how the object of granting injunction itself shall be defeated if an ex parte order is not passed. But any such ex parte order should be in force up to a particular date before which the plaintiff should be required to serve the notice on the defendant concerned. In the Supreme Court Practice 1993, Vol. 1, at page 514, reference has been made to the views of the English Courts saying:Ex parte injunctions are for cases of real urgency where there has been a true impossibility of giving notice of motion.An ex parte injunction should generally be until a certain day, usually the next motion day
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The University Of Mysore And Anr Vs. C. D. Govinda Rao And Anr | this connection, the High Court has failed to notice one significant fact that when the Board considered the claims of the respective applicants, it examined them very carefully and actually came to the conclusion that none of them deserved to be appointed a Professor. These recommendations made by the Board clearly show that they considered the relevant factors carefully and ultimately came to the conclusion that appellant No. 2 should be recommended for the post of Reader. Therefore, we are satisfied that the criticism made by the High Court against the Board and its deliberations is not justified.14. It appears that the High Court was also dissatisfied with the conduct of appellant No. 1 and its officers, and in fact, while dealing with the question about the length of the teaching experience of appellant No. 2, the High Court has observed that "the material placed on record is of a doubtful nature characterised by a clear tendency to mislead the Court, if not an actual attempt to do so". The learned Attorney-General has complained that this criticism is not justified. In fact, after the judgment was pronounced, an application was made to the same learned Judges to expunge the criticism made against appellant No. 1, and in support of this application. Mr. Ethirajula Naidu, who was then the Advocate-General and who had argued the matter before the High Court, made an affidavit, showing that appellant No. 1 could not be charged with having attempted to mislead the High Court. Even then, the High Court was not fully satisfied, and so in a judgment delivered by it on the application subsequently made to quash the said observations, the learned Judges observed that they were willing to accept and did accept the assurance given by the learned Advocate-General that there was no actual attempt made to mislead the Court. Even so, they held that the material placed before the Court could or did have a tendency to mislead, and that is the opinion which they thought even after hearing the learned Advocate-General, was well founded, at any rate, not unwarranted.15. This criticism has been made by the High Court because when an affidavit was filed before it by Mr. Thimmaraju, the Gazetted Assistant of appellant No. 1, he produced on June 1, 1961, a statement from the Service Register of appellant No. 2. This extract purported to show that Appellant No. 2 had more than five years teaching experience prescribed by third qualification. The Register was then sent for by the High Court and examined, and it became clear that whereas the first four entries in the statement filed by the deponent were borne out by the said Register, the subsequent eight entries did not appear in that Register. Later when the High Court was moved, after the judgment was pronounced, for expunging the remarks, another document was produced. This purported to be the Gazetted Officers Register, and the statements contained in the extract filed by Thimmaraju appeared in that Register. The explanation given by Appellant No. 1 and the learned Advocate-General was that when appellant No. 2 was a non-gazetted servant, his service register was separately kept; but in regard to Government gazetted servants, a general service Register was kept, and all the statements filed by Mr. Thimmaraju really contained facts taken from the separate service Register of appellant No. 2 when he was a non-gazetted servant, and facts taken from the Government gazetted servants Register, after he became a gazetted servant. It is undoubtedly true that the statement filed by Thimmaraju seems to suggest that all the facts stated in the statement were gathered from service Register of appellant No. 2, and that, strictly, was not accurate at all. Therefore, on the inaccuracy of the statement made by Mr. Thimmaraju, the High Court would have been justified in making an adverse comment; but in considering the question as to whether Thimmaraju or appellant No. 1 on whose behalf he made the affidavit, attempted or intended to mislead the Court, it is necessary to bear in mind other relevant facts. On the question about the length of the teaching career of appellant No. 2, appellant No. 2 had made a detailed affidavit on July 22, 1961. In this affidavit, he had set out the several teaching assignments he had held and the periods during which he held them, and these clearly show that his teaching experience of the prescribed character is much more than five years which is the minimum prescribed. It is remarkable that though the respondent purported to make a rejoinder to the affidavit filed by appellant No. 2, the details given by appellant No. 2 in regard to his teaching experience have not been specially or categorically traversed by the respondent. Besides, it is significant that the Government gazetted officers Register, which was produced before the High Court later, amply bears out the facts in the statement filed by Thimmaraju. Therefore, one thing is clear that the material fact about the length of the teaching experience of appellant No. 2 is fully established by the affidavit of appellant No. 2 and even by the gazetted officers Register which was later produced, and so, it seems to us that the High Court need not have been so severe on appellant No. 1 when it observed that the material produced by appellant No. 1 had a tendency to mislead the Court, if not an actual attempt to do so. It is undoubtedly true that Thimmaraju should have looked into the record more carefully and should have stated clearly that the facts stated in the statement filed by him were taken partly from the individual service register of appellant No. 2 and partly from the Register which is kept as a general Register for gazetted servants in that State. Therefore, we think there is some substance in the contention made by the learned Attorney-General that the harsh criticism made by the High Court against appellant No. 1 is not fully justified. | 1[ds]6. The judgment of the High Court does not indicate that the attention of the High Court was drawn to the technical nature of the writ of quo warranto which was claimed by the respondent in the present proceedings, and the conditions which had to be satisfied before a writ could issue in such proceedings.In the present case, it does not appear that the attention of the Court was drawn to this aspect of the matter. The judgment does not show that any statutory provisions or rules were placed before the Court and that in making the appointment of appellant No. 2, these statutory provisions had been contravened. The mader appears to have been argued before the High Court on the assumption that if the appointment of appellant No. 2 was shown to be inconsistent with the qualifications as they were advertised by appellant No. 1, that itself would justify the issue of a writ of quo warranto. In the present proceedings, we do not propose to consider and decide whether this assumption was well founded or not.We propose to deal with the appeals on the basis that it may have been open to the High Court to quash the appointment of appellant No. 2 even if it was shown that one or the other of the qualifications prescribed by the advertisement published by appellant No. 1 was not satisfied bythough some reference was made to the ordinances, no attempt was made to show when the ordinances came into force and no arguments appear to have been urged on that account. The judgment delivered by the High Court in the present proceedings is an elaborate judgment and we think it would be legitimate to assume that it does not refer to the statutory rules and ordinances for the simple reason that neither party relied on them and the High Court had, therefore, no occasion to examine them. In any case, we do not think it would be open to the respondent to take a ground about the effect of the statutory rules and ordinances for the first time in appeal. The petition, which he originally filed, when read with the affidavit made by him, does support this view and unambiguously shows that he confined his attack against trio validity of the appointment of appellant No. 2 solely to the ground that appellant No 2 did not satisfy the qualifications prescribed by the notification by which applications had been called for by appellant No. 1. That is the basis on which the High Court has dealt with this matter and that is the basis on which we propose to deal with it.Thus, it is clear that substantially the High Court decided to quash the appointment of appellant No. 2 on the ground that it was plain that he did not satisfy the first qualification. In this connection, the High Court has also criticised the report made by the Board and has observed that the Members of the Board did not appear to have applied their minds to the question which they were called upon to consider.12. In our opinion, in coming to the conclusion that appellant. No. 2 did not satisfy the first qualification, the High Court is plainly in error. The judgment shows that the learned judges concentrated on the question as to whether a candidate obtaining 50 per cent marks could be said to have secured a high Second Class Degree, and if the relevant question had to be determined solely by reference to this aspect of the matter, the conclusion of the High Court would have been beyond reproach. But what the High Court has failed to notice is the fact that the first qualification consists of two parts - the first part is : a high Second Class Masters Degree of an Indian University, and the second part is : its equivalent which is an equivalent qualification of a foreign University. The High Court does not appear to have considered the question as to whether it would be appropriate for the High Court to differ from the opinion of the Board when it was quite likely that the Board may have taken the view that the Degree of Master of Arts of the Durham University which appellant No. 2 had obtained, was equivalent to a high Second Class Masters Degree of an Indian University. This aspect of the questions (sic) purely to an academic matter and courts would naturally, hesitate to express a definite opinion, particularly, when it appears that the Board of experts was satisfied that appellant No.2 fulfilled the first qualification. If only the attention of the High Court had been drawn to the equivalent furnished in the first qualification, we have no doubt that it would not have held that the Board had acted capriciously in expressing the opinion that appellant No. 2 satisfied all the qualifications, including the first qualification. As we have already observed though the High Court felt some difficulty, about the two remaining qualifications, the High Court has not rested its decision on any definite finding that these qualification also had not been satisfied. On reading the first qualification, the position appears to be very simple; but unfortunately, since the equivalent qualification specified by cl : (a) was apparently not brought to the notice of the High Court, it has failed to take that aspect of the matter into account. On that aspect of the matter, it may follow that the Masters Degree of the Durham University secured by appellant No. 2, would satisfy the first qualification and even the second. Besides, it appears that appellant No. 2 has to his credit published works which by themselves would satisfy the second qualification. Therefore, there is no doubt that the High Court was in error in coming to the conclusion that since appellant No. 2 could not be said to have secured a high Second Class Master Degree of on Indian University he did not satisfy the first qualification. It is plain that Masters Degree of the Durham University. which, appellant No. 2 has obtained, can be and must have been taken by the Board to be equivalent to a high Second Class Masters Degree of in Indian University, and that means the first qualification is satisfied by appellant No. 2. That being so, we must hold that the High Court was in error in issuing a writ of quo warranto, quashing the appointment of appellant No.is undoubtedly true that Thimmaraju should have looked into the record more carefully and should have stated clearly that the facts stated in the statement filed by him were taken partly from the individual service register of appellant No. 2 and partly from the Register which is kept as a general Register for gazetted servants in that State. Therefore, we think there is some substance in the contention made by the learned Attorney-General that the harsh criticism made by the High Court against appellant No. 1 is not fully justified. | 1 | 5,189 | 1,258 | ### 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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this connection, the High Court has failed to notice one significant fact that when the Board considered the claims of the respective applicants, it examined them very carefully and actually came to the conclusion that none of them deserved to be appointed a Professor. These recommendations made by the Board clearly show that they considered the relevant factors carefully and ultimately came to the conclusion that appellant No. 2 should be recommended for the post of Reader. Therefore, we are satisfied that the criticism made by the High Court against the Board and its deliberations is not justified.14. It appears that the High Court was also dissatisfied with the conduct of appellant No. 1 and its officers, and in fact, while dealing with the question about the length of the teaching experience of appellant No. 2, the High Court has observed that "the material placed on record is of a doubtful nature characterised by a clear tendency to mislead the Court, if not an actual attempt to do so". The learned Attorney-General has complained that this criticism is not justified. In fact, after the judgment was pronounced, an application was made to the same learned Judges to expunge the criticism made against appellant No. 1, and in support of this application. Mr. Ethirajula Naidu, who was then the Advocate-General and who had argued the matter before the High Court, made an affidavit, showing that appellant No. 1 could not be charged with having attempted to mislead the High Court. Even then, the High Court was not fully satisfied, and so in a judgment delivered by it on the application subsequently made to quash the said observations, the learned Judges observed that they were willing to accept and did accept the assurance given by the learned Advocate-General that there was no actual attempt made to mislead the Court. Even so, they held that the material placed before the Court could or did have a tendency to mislead, and that is the opinion which they thought even after hearing the learned Advocate-General, was well founded, at any rate, not unwarranted.15. This criticism has been made by the High Court because when an affidavit was filed before it by Mr. Thimmaraju, the Gazetted Assistant of appellant No. 1, he produced on June 1, 1961, a statement from the Service Register of appellant No. 2. This extract purported to show that Appellant No. 2 had more than five years teaching experience prescribed by third qualification. The Register was then sent for by the High Court and examined, and it became clear that whereas the first four entries in the statement filed by the deponent were borne out by the said Register, the subsequent eight entries did not appear in that Register. Later when the High Court was moved, after the judgment was pronounced, for expunging the remarks, another document was produced. This purported to be the Gazetted Officers Register, and the statements contained in the extract filed by Thimmaraju appeared in that Register. The explanation given by Appellant No. 1 and the learned Advocate-General was that when appellant No. 2 was a non-gazetted servant, his service register was separately kept; but in regard to Government gazetted servants, a general service Register was kept, and all the statements filed by Mr. Thimmaraju really contained facts taken from the separate service Register of appellant No. 2 when he was a non-gazetted servant, and facts taken from the Government gazetted servants Register, after he became a gazetted servant. It is undoubtedly true that the statement filed by Thimmaraju seems to suggest that all the facts stated in the statement were gathered from service Register of appellant No. 2, and that, strictly, was not accurate at all. Therefore, on the inaccuracy of the statement made by Mr. Thimmaraju, the High Court would have been justified in making an adverse comment; but in considering the question as to whether Thimmaraju or appellant No. 1 on whose behalf he made the affidavit, attempted or intended to mislead the Court, it is necessary to bear in mind other relevant facts. On the question about the length of the teaching career of appellant No. 2, appellant No. 2 had made a detailed affidavit on July 22, 1961. In this affidavit, he had set out the several teaching assignments he had held and the periods during which he held them, and these clearly show that his teaching experience of the prescribed character is much more than five years which is the minimum prescribed. It is remarkable that though the respondent purported to make a rejoinder to the affidavit filed by appellant No. 2, the details given by appellant No. 2 in regard to his teaching experience have not been specially or categorically traversed by the respondent. Besides, it is significant that the Government gazetted officers Register, which was produced before the High Court later, amply bears out the facts in the statement filed by Thimmaraju. Therefore, one thing is clear that the material fact about the length of the teaching experience of appellant No. 2 is fully established by the affidavit of appellant No. 2 and even by the gazetted officers Register which was later produced, and so, it seems to us that the High Court need not have been so severe on appellant No. 1 when it observed that the material produced by appellant No. 1 had a tendency to mislead the Court, if not an actual attempt to do so. It is undoubtedly true that Thimmaraju should have looked into the record more carefully and should have stated clearly that the facts stated in the statement filed by him were taken partly from the individual service register of appellant No. 2 and partly from the Register which is kept as a general Register for gazetted servants in that State. Therefore, we think there is some substance in the contention made by the learned Attorney-General that the harsh criticism made by the High Court against appellant No. 1 is not fully justified.
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propose to consider and decide whether this assumption was well founded or not.We propose to deal with the appeals on the basis that it may have been open to the High Court to quash the appointment of appellant No. 2 even if it was shown that one or the other of the qualifications prescribed by the advertisement published by appellant No. 1 was not satisfied bythough some reference was made to the ordinances, no attempt was made to show when the ordinances came into force and no arguments appear to have been urged on that account. The judgment delivered by the High Court in the present proceedings is an elaborate judgment and we think it would be legitimate to assume that it does not refer to the statutory rules and ordinances for the simple reason that neither party relied on them and the High Court had, therefore, no occasion to examine them. In any case, we do not think it would be open to the respondent to take a ground about the effect of the statutory rules and ordinances for the first time in appeal. The petition, which he originally filed, when read with the affidavit made by him, does support this view and unambiguously shows that he confined his attack against trio validity of the appointment of appellant No. 2 solely to the ground that appellant No 2 did not satisfy the qualifications prescribed by the notification by which applications had been called for by appellant No. 1. That is the basis on which the High Court has dealt with this matter and that is the basis on which we propose to deal with it.Thus, it is clear that substantially the High Court decided to quash the appointment of appellant No. 2 on the ground that it was plain that he did not satisfy the first qualification. In this connection, the High Court has also criticised the report made by the Board and has observed that the Members of the Board did not appear to have applied their minds to the question which they were called upon to consider.12. In our opinion, in coming to the conclusion that appellant. No. 2 did not satisfy the first qualification, the High Court is plainly in error. The judgment shows that the learned judges concentrated on the question as to whether a candidate obtaining 50 per cent marks could be said to have secured a high Second Class Degree, and if the relevant question had to be determined solely by reference to this aspect of the matter, the conclusion of the High Court would have been beyond reproach. But what the High Court has failed to notice is the fact that the first qualification consists of two parts - the first part is : a high Second Class Masters Degree of an Indian University, and the second part is : its equivalent which is an equivalent qualification of a foreign University. The High Court does not appear to have considered the question as to whether it would be appropriate for the High Court to differ from the opinion of the Board when it was quite likely that the Board may have taken the view that the Degree of Master of Arts of the Durham University which appellant No. 2 had obtained, was equivalent to a high Second Class Masters Degree of an Indian University. This aspect of the questions (sic) purely to an academic matter and courts would naturally, hesitate to express a definite opinion, particularly, when it appears that the Board of experts was satisfied that appellant No.2 fulfilled the first qualification. If only the attention of the High Court had been drawn to the equivalent furnished in the first qualification, we have no doubt that it would not have held that the Board had acted capriciously in expressing the opinion that appellant No. 2 satisfied all the qualifications, including the first qualification. As we have already observed though the High Court felt some difficulty, about the two remaining qualifications, the High Court has not rested its decision on any definite finding that these qualification also had not been satisfied. On reading the first qualification, the position appears to be very simple; but unfortunately, since the equivalent qualification specified by cl : (a) was apparently not brought to the notice of the High Court, it has failed to take that aspect of the matter into account. On that aspect of the matter, it may follow that the Masters Degree of the Durham University secured by appellant No. 2, would satisfy the first qualification and even the second. Besides, it appears that appellant No. 2 has to his credit published works which by themselves would satisfy the second qualification. Therefore, there is no doubt that the High Court was in error in coming to the conclusion that since appellant No. 2 could not be said to have secured a high Second Class Master Degree of on Indian University he did not satisfy the first qualification. It is plain that Masters Degree of the Durham University. which, appellant No. 2 has obtained, can be and must have been taken by the Board to be equivalent to a high Second Class Masters Degree of in Indian University, and that means the first qualification is satisfied by appellant No. 2. That being so, we must hold that the High Court was in error in issuing a writ of quo warranto, quashing the appointment of appellant No.is undoubtedly true that Thimmaraju should have looked into the record more carefully and should have stated clearly that the facts stated in the statement filed by him were taken partly from the individual service register of appellant No. 2 and partly from the Register which is kept as a general Register for gazetted servants in that State. Therefore, we think there is some substance in the contention made by the learned Attorney-General that the harsh criticism made by the High Court against appellant No. 1 is not fully justified.
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Dr. Miss Annie M. Pichamuthu and Another Vs. Dr. Mrs. Bessie Thangam Selvaraj and Another | Chinnappa Reddy, J.1. Late Dr. Arulmani purchased a house in Madurai on January 24, 1908. One of her sisters, Kamalam James, lived with her in that house from 1928 to 1948. The relations between Dr. Arulmani and Kamalam James became strained and the latter had ultimately to leave the house. Thereafter, Dr. Bessie Thangam Selvaraj (first defendant), the daughter of another sister of Dr. Arulmani started paying her frequent visits. Dr. Bessie also used to give some money now and then to Dr. Arulmani. On March 19, 1952 Dr. Arulmani executed a will in favour of Bessie revoking an earlier will which she had executed in favour of her uterine sister Dr. Annie Pichamuthu (first plaintiff). A few months afterwards, on January 20, 1953, Dr. Arulmani executed a deed of settlement in favour of the first defendant. The first plaintiff who was working elsewhere returned to Madurai and learnt about the execution of the deed of settlement towards the end of March 1953. On April 2, 1953, Arulmani purported to revoke the deed of settlement by a revocation deed Ex. A-3. A few days later, on April 13, 1953, Arulmani executed an agreement of sale in favour of her two uterine sisters (plaintiffs) and two half-sisters. Towards the end of May 1953, Arulmani fell ill. Again the first defendant started taking care of her. On may 26, 1953, Arulmani executed two documents Exs. A-8 and A-9. By Ex. A-8 she purported to cancel the agreement of sale executed by her in favour of her sisters and half-sisters on April 13, 1953. By Ex. A-9 she purported to cancel the deed of revocation executed by her on April 2, 1953. Arulmani again fell ill in January 1954 and in March 1954, the first plaintiff took her with her to Trichinopoly for treatment. At Trichinopoly Arulmani executed Ex. A-12, a deed of sale in favour of her two sisters and two half-sisters. When the first plaintiff attempted to take possession of the house she was resisted by the second defendant, the tenant in possession. After obtaining a deed of release from the two half-sisters, the two plaintiffs, the sisters of Arulmani, filed the suit out of which this appeal arises on January 16, 1956 for a declaration that the deed of settlement dated January 20, 1953 was invalid and for recovery of possession of the house together with profits. Arulmani died on May 19, 1956.2. The plaintiffs alleged that the settlement deed was obtained by the firsts defendant from Arulmani by misrepresentation and undue influence. The trial Judge held that the settlement deed was vitiated by undue influence and decreed the suit. On appeal by the first defendant the High Court of Madras held that merely because the first defendant was helping Arulmani by giving small loans and was also visiting her frequently, attending to her personal comforts, it did not follow that Arulmani was the victim of any undue influence. On the other hand it was held by the High Court that Arulmani was a strong willed person who could not be easily influenced by anyone. The appeal was allowed and the suit was dismissed.3. In this appeal, Shri Vepa P. Sarathi, learned counsel for the plaintiffs-appellants argued that though there was no direct evidence of any undue influence, the circumstances of the case clearly established that the first defendant managed to obtain a deed of settlement in her favour by exercising undue influence over Arulmani. The circumstances pointed out by him were the impecunious condition of Arulmani, the frequent visits paid by the first defendant to her at that time, the small amounts that the first defendant used to give Arulmani and the show of affection made by the defendant. According to Shri Sarathi the first defendant must have also misrepresented to Arulmani that she would take care of her for the rest of her lifetime if she settled the properties on her.4. We are unable to agree with the submission of Shri Vepa P. Sarathi. It is true that Dr. Arulmani was old and impecunious. Her niece, the first defendant, befriended her, visited her frequently, took care of her personal comforts and even gave her small amounts of money. There is no evidence to lead us to the conclusion that everything that was done by the first defendant was nothing but a pretence. For the purposes of this appeal we may even assume that the actions of first defendant were motivated and that the display of affection was a mere show. Even so it is difficult to conclude, in the absence of better or other evidence, that there was any undue influence or misrepresentation. It is clear from the evidence and it has been so found by the High Court that Arulmani was a woman of character and strong will. She was to likely to have been the victim of any undue influence or misrepresentation. More likely, she executed the deed of settlement out of a genuine sense of gratitude towards her niece who had befriended her in time of need and taken care of her. It is to be noticed here that after Arulmani revoked the deed of settlement after the first plaintiff rushed to the scene, the revocation of the deed of settlement was followed very soon thereafter by an agreement of sale in favour of the plaintiffs and the two half-sisters. The execution of the agreement of sale so soon after the deed of revocation would lead anyone to suspect that the deed of revocation itself was the result of pressure applied on Arulmani by her sisters and half-sisters. It is unnecessary for us to dilate further on this question. It is sufficient to say that there is no evidence of undue influence or misrepresentation and the deed of the settlement cannot be set aside on this ground.5. | 0[ds]4. We are unable to agree with the submission of Shri Vepa P. Sarathi. It is true that Dr. Arulmani was old and impecunious. Her niece, the first defendant, befriended her, visited her frequently, took care of her personal comforts and even gave her small amounts of money. There is no evidence to lead us to the conclusion that everything that was done by the first defendant was nothing but a pretence. For the purposes of this appeal we may even assume that the actions of first defendant were motivated and that the display of affection was a mere show. Even so it is difficult to conclude, in the absence of better or other evidence, that there was any undue influence or misrepresentation. It is clear from the evidence and it has been so found by the High Court that Arulmani was a woman of character and strong will. She was to likely to have been the victim of any undue influence or misrepresentation. More likely, she executed the deed of settlement out of a genuine sense of gratitude towards her niece who had befriended her in time of need and taken care of her. It is to be noticed here that after Arulmani revoked the deed of settlement after the first plaintiff rushed to the scene, the revocation of the deed of settlement was followed very soon thereafter by an agreement of sale in favour of the plaintiffs and the twoThe execution of the agreement of sale so soon after the deed of revocation would lead anyone to suspect that the deed of revocation itself was the result of pressure applied on Arulmani by her sisters andIt is unnecessary for us to dilate further on this question. It is sufficient to say that there is no evidence of undue influence or misrepresentation and the deed of the settlement cannot be set aside on this ground. | 0 | 1,069 | 341 | ### Instruction:
Project the court's decision (favor (1) or against (0) the appeal) based on the case proceeding, and subsequently give an in-depth explanation by analyzing relevant sentences from the document.
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Chinnappa Reddy, J.1. Late Dr. Arulmani purchased a house in Madurai on January 24, 1908. One of her sisters, Kamalam James, lived with her in that house from 1928 to 1948. The relations between Dr. Arulmani and Kamalam James became strained and the latter had ultimately to leave the house. Thereafter, Dr. Bessie Thangam Selvaraj (first defendant), the daughter of another sister of Dr. Arulmani started paying her frequent visits. Dr. Bessie also used to give some money now and then to Dr. Arulmani. On March 19, 1952 Dr. Arulmani executed a will in favour of Bessie revoking an earlier will which she had executed in favour of her uterine sister Dr. Annie Pichamuthu (first plaintiff). A few months afterwards, on January 20, 1953, Dr. Arulmani executed a deed of settlement in favour of the first defendant. The first plaintiff who was working elsewhere returned to Madurai and learnt about the execution of the deed of settlement towards the end of March 1953. On April 2, 1953, Arulmani purported to revoke the deed of settlement by a revocation deed Ex. A-3. A few days later, on April 13, 1953, Arulmani executed an agreement of sale in favour of her two uterine sisters (plaintiffs) and two half-sisters. Towards the end of May 1953, Arulmani fell ill. Again the first defendant started taking care of her. On may 26, 1953, Arulmani executed two documents Exs. A-8 and A-9. By Ex. A-8 she purported to cancel the agreement of sale executed by her in favour of her sisters and half-sisters on April 13, 1953. By Ex. A-9 she purported to cancel the deed of revocation executed by her on April 2, 1953. Arulmani again fell ill in January 1954 and in March 1954, the first plaintiff took her with her to Trichinopoly for treatment. At Trichinopoly Arulmani executed Ex. A-12, a deed of sale in favour of her two sisters and two half-sisters. When the first plaintiff attempted to take possession of the house she was resisted by the second defendant, the tenant in possession. After obtaining a deed of release from the two half-sisters, the two plaintiffs, the sisters of Arulmani, filed the suit out of which this appeal arises on January 16, 1956 for a declaration that the deed of settlement dated January 20, 1953 was invalid and for recovery of possession of the house together with profits. Arulmani died on May 19, 1956.2. The plaintiffs alleged that the settlement deed was obtained by the firsts defendant from Arulmani by misrepresentation and undue influence. The trial Judge held that the settlement deed was vitiated by undue influence and decreed the suit. On appeal by the first defendant the High Court of Madras held that merely because the first defendant was helping Arulmani by giving small loans and was also visiting her frequently, attending to her personal comforts, it did not follow that Arulmani was the victim of any undue influence. On the other hand it was held by the High Court that Arulmani was a strong willed person who could not be easily influenced by anyone. The appeal was allowed and the suit was dismissed.3. In this appeal, Shri Vepa P. Sarathi, learned counsel for the plaintiffs-appellants argued that though there was no direct evidence of any undue influence, the circumstances of the case clearly established that the first defendant managed to obtain a deed of settlement in her favour by exercising undue influence over Arulmani. The circumstances pointed out by him were the impecunious condition of Arulmani, the frequent visits paid by the first defendant to her at that time, the small amounts that the first defendant used to give Arulmani and the show of affection made by the defendant. According to Shri Sarathi the first defendant must have also misrepresented to Arulmani that she would take care of her for the rest of her lifetime if she settled the properties on her.4. We are unable to agree with the submission of Shri Vepa P. Sarathi. It is true that Dr. Arulmani was old and impecunious. Her niece, the first defendant, befriended her, visited her frequently, took care of her personal comforts and even gave her small amounts of money. There is no evidence to lead us to the conclusion that everything that was done by the first defendant was nothing but a pretence. For the purposes of this appeal we may even assume that the actions of first defendant were motivated and that the display of affection was a mere show. Even so it is difficult to conclude, in the absence of better or other evidence, that there was any undue influence or misrepresentation. It is clear from the evidence and it has been so found by the High Court that Arulmani was a woman of character and strong will. She was to likely to have been the victim of any undue influence or misrepresentation. More likely, she executed the deed of settlement out of a genuine sense of gratitude towards her niece who had befriended her in time of need and taken care of her. It is to be noticed here that after Arulmani revoked the deed of settlement after the first plaintiff rushed to the scene, the revocation of the deed of settlement was followed very soon thereafter by an agreement of sale in favour of the plaintiffs and the two half-sisters. The execution of the agreement of sale so soon after the deed of revocation would lead anyone to suspect that the deed of revocation itself was the result of pressure applied on Arulmani by her sisters and half-sisters. It is unnecessary for us to dilate further on this question. It is sufficient to say that there is no evidence of undue influence or misrepresentation and the deed of the settlement cannot be set aside on this ground.5.
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4. We are unable to agree with the submission of Shri Vepa P. Sarathi. It is true that Dr. Arulmani was old and impecunious. Her niece, the first defendant, befriended her, visited her frequently, took care of her personal comforts and even gave her small amounts of money. There is no evidence to lead us to the conclusion that everything that was done by the first defendant was nothing but a pretence. For the purposes of this appeal we may even assume that the actions of first defendant were motivated and that the display of affection was a mere show. Even so it is difficult to conclude, in the absence of better or other evidence, that there was any undue influence or misrepresentation. It is clear from the evidence and it has been so found by the High Court that Arulmani was a woman of character and strong will. She was to likely to have been the victim of any undue influence or misrepresentation. More likely, she executed the deed of settlement out of a genuine sense of gratitude towards her niece who had befriended her in time of need and taken care of her. It is to be noticed here that after Arulmani revoked the deed of settlement after the first plaintiff rushed to the scene, the revocation of the deed of settlement was followed very soon thereafter by an agreement of sale in favour of the plaintiffs and the twoThe execution of the agreement of sale so soon after the deed of revocation would lead anyone to suspect that the deed of revocation itself was the result of pressure applied on Arulmani by her sisters andIt is unnecessary for us to dilate further on this question. It is sufficient to say that there is no evidence of undue influence or misrepresentation and the deed of the settlement cannot be set aside on this ground.
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Chhangamal Harpaldas & Another Vs. Dominion of India & Another | consignee alone could sue for loss caused by non-delivery of goods after the goods had been delivered to the railway company for consignment. After referring to that judgment, the learned Judge observed that"When goods are delivered to a Railway Company for transmission to a buyer, the property in the goods passes to the buyer and any loss that is occasioned thereafter is the loss to the buyer and no loss to the seller, and that the seller having suffered no loss, is not entitled to claim any damages from the Railway Company. That, however, is not a decision in support of the proposition that a bare consignee under a railway receipt may sue the railway administration for loss of the goods.15. In AIR 1924 Mad 517(K) the head-note is :"Consignee alone can sue for loss caused by the non-delivery of the goods after the goods have been delivered to railway company for consignment."In that case, the consignors filed a suit for damages for loss of a consignment. On evidence it was found that in consigning the goods the plaintiffs had acted merely as agents of another person and had in consequence of non-delivery of the goods to the consignee not suffered any loss. On those facts it was held that the consignors were not entitled to maintain the action. The observation that a consignee alone can file a suit was plainly unnecessary for the decision of that case.16. In Shamji Bhanji and Co. v. North Western Rly. Co., 48 Bom LR 698 : (AIR 1947 Bom 169) (L), it was held by Mr. Justice Bhagwati that the plaintiffs, who were consignors and who ultimately became endorsees of the railway receipt, could file a suit for loss of the goods. It was observed in that case that the endorsements made on the railway receipt by the plaintiffs had not the effect of passing the property and that in any event the reendorsement made by the endorsee in favour of the plaintiffs invested them with the right to receive the goods represented by the railway receipt from the railway company, and that as the contract of carriage had been entered into by the plaintiffs with the railway company the plaintiffs were the only persons entitled to maintain the suit against the railway company for compensation for loss of the goods. The case does not lay down that the consignee can file a suit for compensation for loss, and the principle of the case is plainly inconsistent with the dictum in the case in AIR 1924 Mad 517 (K).17. In Erachshaw Desabhai v. Dominion of India, (S) AIR 1955 Madh B 70 (M), it was observed that a consignee of goods has sufficient interest in the goods to entitle him to sue for compensation for loss arising out of misconduct of the railway administration, and in support of that observation, Jalan and Sons, Ltd. v. Governor-General in Council, AIR 1949 EP 190 (N), was cited. But it is evident from Jalan and Sons case (N) that the plaintiffs were held entitled to sue as endorsees of the railway receipt, and not as consignees. Again in Erachshaws case (M) the plaintiffs were held on facts to be owners of the goods and entitled to sue.18. It is admitted that the railway receipts were never sent to the plaintiffs by the consignors and the plaintiffs were merely commission agents of Peer Mahomed and Sons. Suganmal Harpaldas, who is a partner of the plaintiffs firm, admitted in his evidence that he had not suffered any loss and that he was entitled merely to his commission in the sale proceeds. He also admitted in his evidence that the railway receipt was never sent to him. Evidently the plaintiffs were not even in possession of the railway receipt and could not be deemed to have become owners of the goods by negotiation of the railway receipt. They had otherwise no interest in the goods as owners and they were not parties to the contract with the railway administration.19. Mr. Kotwal submitted that when a railway receipt is issued by the railway administration on consignment of goods there is a tripartite contract between the consignor, the consignee and the railway administration and that the breach of contract by the railway administration or misconduct of the employees of the railway confers a cause of action upon the consignee. In our view, this contention cannot be accepted. The contract incorporated in the railway receipt results from acceptance of the Forwarding Note the consignor to the railway administration and which is expressly in the form of a request by it is on acceptance of the Forwarding Note that the railway receipt is issued. It is true that the consignor may direct the railway administration to deliver the goods covered by the railway receipt to the consignee, but the consignee does not thereby become a party to the contract. Unless he is the owner of the goods covered by the railway receipt, the consignee is an agent of the consignor for receiving the goods; and an agent of the consignor cannot sue the railway administration for loss of the goods.20. It is well-settled that normally a person who is not a party to a contract is not entitled to maintain an action for breach of that contract. That rule, it is true, is subject to certain well-recognised exceptions, e.g., a person who is not a party to a contract can sue on it if he is claiming through a party to the contract or if he is in the position of a cestui que trust or a trust or of a principal suing through an agent, or if he claims under a family settlement (See National Petroleum Co. Ltd. v. Popatlal Mulji, 38 Bom LR 610 : (AIR 1936 Bom 344) (O)).In this case, the plaintiffs do not fall within any of the excepted classes. Not being parties to the contract and not being owners of the goods covered by the railway receipt, | 0[ds]In our view, that contention must be accepted. The Forwarding Notes expressly requested the Station Master at Kajgaon to despatch the goods by passenger train and in pursuance of these Forwarding Notes the Parcel Way Bills were made out. Even it was the case of the railway administration, as is evident from the letters Exhibits 141, 143 and 111, that the consignments of plantains had been sent by passenger train, it is undisputed that from Kajgaon to Itarsi the consignments had not been sent by passenger train but they were sent by parcel trains. 39 Dn. from Victoria Terminus, to which the wagons were attached, is only a parcel train. It is, therefore, difficult to accept the view of the learned trial Judge that there was no breach of contract committed by the railway administration in sending the wagons from Kajgaon to Itarsi by a parcel train.It is admitted that the railway receipts were never sent to the plaintiffs by the consignors and the plaintiffs were merely commission agents of Peer Mahomed and Sons. Suganmal Harpaldas, who is a partner of the plaintiffs firm, admitted in his evidence that he had not suffered any loss and that he was entitled merely to his commission in the sale proceeds. He also admitted in his evidence that the railway receipt was never sent to him. Evidently the plaintiffs were not even in possession of the railway receipt and could not be deemed to have become owners of the goods by negotiation of the railway receipt. They had otherwise no interest in the goods as owners and they were not parties to the contract with the railwayour view, this contention cannot be accepted. The contract incorporated in the railway receipt results from acceptance of the Forwarding Note the consignor to the railway administration and which is expressly in the form of a request by it is on acceptance of the Forwarding Note that the railway receipt is issued. It is true that the consignor may direct the railway administration to deliver the goods covered by the railway receipt to the consignee, but the consignee does not thereby become a party to the contract. Unless he is the owner of the goods covered by the railway receipt, the consignee is an agent of the consignor for receiving the goods; and an agent of the consignor cannot sue the railway administration for loss of the goods.20. It isthat normally a person who is not a party to a contract is not entitled to maintain an action for breach of that contract. That rule, it is true, is subject to certainexceptions, e.g., a person who is not a party to a contract can sue on it if he is claiming through a party to the contract or if he is in the position of a cestui que trust or a trust or of a principal suing through an agent, or if he claims under a family settlement (See National Petroleum Co. Ltd. v. Popatlal Mulji, 38 Bom LR 610 : (AIR 1936 Bom 344) (O)).In this case, the plaintiffs do not fall within any of the excepted classes. Not being parties to the contract and not being owners of the goods covered by the railway receipt, in our judgment, the plaintiffs had no right to maintain an action for compensation for loss of the goods. | 0 | 4,094 | 612 | ### 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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consignee alone could sue for loss caused by non-delivery of goods after the goods had been delivered to the railway company for consignment. After referring to that judgment, the learned Judge observed that"When goods are delivered to a Railway Company for transmission to a buyer, the property in the goods passes to the buyer and any loss that is occasioned thereafter is the loss to the buyer and no loss to the seller, and that the seller having suffered no loss, is not entitled to claim any damages from the Railway Company. That, however, is not a decision in support of the proposition that a bare consignee under a railway receipt may sue the railway administration for loss of the goods.15. In AIR 1924 Mad 517(K) the head-note is :"Consignee alone can sue for loss caused by the non-delivery of the goods after the goods have been delivered to railway company for consignment."In that case, the consignors filed a suit for damages for loss of a consignment. On evidence it was found that in consigning the goods the plaintiffs had acted merely as agents of another person and had in consequence of non-delivery of the goods to the consignee not suffered any loss. On those facts it was held that the consignors were not entitled to maintain the action. The observation that a consignee alone can file a suit was plainly unnecessary for the decision of that case.16. In Shamji Bhanji and Co. v. North Western Rly. Co., 48 Bom LR 698 : (AIR 1947 Bom 169) (L), it was held by Mr. Justice Bhagwati that the plaintiffs, who were consignors and who ultimately became endorsees of the railway receipt, could file a suit for loss of the goods. It was observed in that case that the endorsements made on the railway receipt by the plaintiffs had not the effect of passing the property and that in any event the reendorsement made by the endorsee in favour of the plaintiffs invested them with the right to receive the goods represented by the railway receipt from the railway company, and that as the contract of carriage had been entered into by the plaintiffs with the railway company the plaintiffs were the only persons entitled to maintain the suit against the railway company for compensation for loss of the goods. The case does not lay down that the consignee can file a suit for compensation for loss, and the principle of the case is plainly inconsistent with the dictum in the case in AIR 1924 Mad 517 (K).17. In Erachshaw Desabhai v. Dominion of India, (S) AIR 1955 Madh B 70 (M), it was observed that a consignee of goods has sufficient interest in the goods to entitle him to sue for compensation for loss arising out of misconduct of the railway administration, and in support of that observation, Jalan and Sons, Ltd. v. Governor-General in Council, AIR 1949 EP 190 (N), was cited. But it is evident from Jalan and Sons case (N) that the plaintiffs were held entitled to sue as endorsees of the railway receipt, and not as consignees. Again in Erachshaws case (M) the plaintiffs were held on facts to be owners of the goods and entitled to sue.18. It is admitted that the railway receipts were never sent to the plaintiffs by the consignors and the plaintiffs were merely commission agents of Peer Mahomed and Sons. Suganmal Harpaldas, who is a partner of the plaintiffs firm, admitted in his evidence that he had not suffered any loss and that he was entitled merely to his commission in the sale proceeds. He also admitted in his evidence that the railway receipt was never sent to him. Evidently the plaintiffs were not even in possession of the railway receipt and could not be deemed to have become owners of the goods by negotiation of the railway receipt. They had otherwise no interest in the goods as owners and they were not parties to the contract with the railway administration.19. Mr. Kotwal submitted that when a railway receipt is issued by the railway administration on consignment of goods there is a tripartite contract between the consignor, the consignee and the railway administration and that the breach of contract by the railway administration or misconduct of the employees of the railway confers a cause of action upon the consignee. In our view, this contention cannot be accepted. The contract incorporated in the railway receipt results from acceptance of the Forwarding Note the consignor to the railway administration and which is expressly in the form of a request by it is on acceptance of the Forwarding Note that the railway receipt is issued. It is true that the consignor may direct the railway administration to deliver the goods covered by the railway receipt to the consignee, but the consignee does not thereby become a party to the contract. Unless he is the owner of the goods covered by the railway receipt, the consignee is an agent of the consignor for receiving the goods; and an agent of the consignor cannot sue the railway administration for loss of the goods.20. It is well-settled that normally a person who is not a party to a contract is not entitled to maintain an action for breach of that contract. That rule, it is true, is subject to certain well-recognised exceptions, e.g., a person who is not a party to a contract can sue on it if he is claiming through a party to the contract or if he is in the position of a cestui que trust or a trust or of a principal suing through an agent, or if he claims under a family settlement (See National Petroleum Co. Ltd. v. Popatlal Mulji, 38 Bom LR 610 : (AIR 1936 Bom 344) (O)).In this case, the plaintiffs do not fall within any of the excepted classes. Not being parties to the contract and not being owners of the goods covered by the railway receipt,
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In our view, that contention must be accepted. The Forwarding Notes expressly requested the Station Master at Kajgaon to despatch the goods by passenger train and in pursuance of these Forwarding Notes the Parcel Way Bills were made out. Even it was the case of the railway administration, as is evident from the letters Exhibits 141, 143 and 111, that the consignments of plantains had been sent by passenger train, it is undisputed that from Kajgaon to Itarsi the consignments had not been sent by passenger train but they were sent by parcel trains. 39 Dn. from Victoria Terminus, to which the wagons were attached, is only a parcel train. It is, therefore, difficult to accept the view of the learned trial Judge that there was no breach of contract committed by the railway administration in sending the wagons from Kajgaon to Itarsi by a parcel train.It is admitted that the railway receipts were never sent to the plaintiffs by the consignors and the plaintiffs were merely commission agents of Peer Mahomed and Sons. Suganmal Harpaldas, who is a partner of the plaintiffs firm, admitted in his evidence that he had not suffered any loss and that he was entitled merely to his commission in the sale proceeds. He also admitted in his evidence that the railway receipt was never sent to him. Evidently the plaintiffs were not even in possession of the railway receipt and could not be deemed to have become owners of the goods by negotiation of the railway receipt. They had otherwise no interest in the goods as owners and they were not parties to the contract with the railwayour view, this contention cannot be accepted. The contract incorporated in the railway receipt results from acceptance of the Forwarding Note the consignor to the railway administration and which is expressly in the form of a request by it is on acceptance of the Forwarding Note that the railway receipt is issued. It is true that the consignor may direct the railway administration to deliver the goods covered by the railway receipt to the consignee, but the consignee does not thereby become a party to the contract. Unless he is the owner of the goods covered by the railway receipt, the consignee is an agent of the consignor for receiving the goods; and an agent of the consignor cannot sue the railway administration for loss of the goods.20. It isthat normally a person who is not a party to a contract is not entitled to maintain an action for breach of that contract. That rule, it is true, is subject to certainexceptions, e.g., a person who is not a party to a contract can sue on it if he is claiming through a party to the contract or if he is in the position of a cestui que trust or a trust or of a principal suing through an agent, or if he claims under a family settlement (See National Petroleum Co. Ltd. v. Popatlal Mulji, 38 Bom LR 610 : (AIR 1936 Bom 344) (O)).In this case, the plaintiffs do not fall within any of the excepted classes. Not being parties to the contract and not being owners of the goods covered by the railway receipt, in our judgment, the plaintiffs had no right to maintain an action for compensation for loss of the goods.
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Krishna Janardhan Bhat Vs. Dattatraya G. Hegde | advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken.” 31. Mr. Bhat relied upon a decision of this Court in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16] wherein this Court held: “22 Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.23 . In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists”. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.” [See also K.N. Beena v. Muniyappan and Another (2001) 8 SCC 458 ] 32. We assume that the law laid down therein is correct. The views we have taken are not inconsistent therewith. 33. But, we may at the same time notice the development of law in this area in some jurisdictions. The presumption of innocence is a human right. [See Narender Singh & Anr. v. State of M.P. (2004) 10 SCC 699 , Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. (2005) 5 SCC 294 and Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its Director (2007) 1 SCC 70 ] Article 6(2) of he European Convention on Human Rights provides : “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused rights and the interest of the society is required to be taken into consideration. In India, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence. For the aforementioned purpose the nature of the offence, seriousness as also gravity thereof may be taken into consideration. The courts must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. It is for the aforementioned reasons that we have taken into consideration the decisions operating in the field where the difficulty of proving a negative has been emphasized. It is not suggested that a negative can never be proved but there are cases where such difficulties are faced by the accused e,g,. honest and reasonable mistake of fact. In a recent Article “The Presumption of Innocence and Reverse Burdens : A Balancing Duty published in [2007] C.L.J. (March Part) 142 it has been stated :- “In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment." 34. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same.35. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the courts below approached the case from a wholly wrong angle, viz., wrong application of the legal principles in the fact situation of the case. In view of the legal position as has been enunciated by this Court in M.S. Narayana Menon (supra) and later cases, we are of the opinion that the High Court should have entertained the revision application. | 1[ds]19. The courts below failed to notice that ordinarily in terms of Section 269SS of the Income Tax Act, any advance taken by way of any loan of more than Rs. 20,000/- was to be made by way of an account payee cheque only.Indisputably, a mandatory presumption is required to be raised in terms of Section 118(b) and Section 139 of the Act.The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.22. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is notcourts below proceeded to hold that the defence raised by the appellant has not been proved, which, in our opinion, is not correct. He did not know that the said cheque had not been encashed. He replied to the notice thinking that one of the cheque has been misused. There is nothing on record to show that he knew that one of the cheques was still with R.G. Bhat.We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same.35. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the courts below approached the case from a wholly wrong angle, viz., wrong application of the legal principles in the fact situation of the case. In view of the legal position as has been enunciated by this Court in M.S. Narayana Menon (supra) and later cases, we are of the opinion that the High Court should have entertained the revision application. | 1 | 5,534 | 586 | ### Instruction:
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advance would be made to him and that too even after institution of three civil suits. The amount advanced even did not carry any interest. If in a situation of this nature, the High Court has arrived at a finding that the respondent has discharged his burden of proof cast on him under Section 139 of the Act, no exception thereto can be taken.” 31. Mr. Bhat relied upon a decision of this Court in Hiten P. Dalal v. Bratindranath Banerjee [(2001) 6 SCC 16] wherein this Court held: “22 Presumptions are rules of evidence and do not conflict with the presumption of innocence, because by the latter, all that is meant is that the prosecution is obliged to prove the case against the accused beyond reasonable doubt. The obligation on the prosecution may be discharged with the help of presumptions of law or fact unless the accused adduces evidence showing the reasonable possibility of the non-existence of the presumed fact.23 . In other words, provided the facts required to form the basis of a presumption of law exist, no discretion is left with the court but to draw the statutory conclusion, but this does not preclude the person against whom the presumption is drawn from rebutting it and proving the contrary. A fact is said to be proved when, after considering the matters before it, the court either believes it to exist, or considers its existence so probable that a prudent man ought, under the circumstances of the particular case, to act upon the supposition that it exists”. Therefore, the rebuttal does not have to be conclusively established but such evidence must be adduced before the court in support of the defence that the court must either believe the defence to exist or consider its existence to be reasonably probable, the standard of reasonability being that of the prudent man.” [See also K.N. Beena v. Muniyappan and Another (2001) 8 SCC 458 ] 32. We assume that the law laid down therein is correct. The views we have taken are not inconsistent therewith. 33. But, we may at the same time notice the development of law in this area in some jurisdictions. The presumption of innocence is a human right. [See Narender Singh & Anr. v. State of M.P. (2004) 10 SCC 699 , Ranjitsing Brahmajeetsing Sharma v. State of Maharashtra and Anr. (2005) 5 SCC 294 and Rajesh Ranjan Yadav @ Pappu Yadav v. CBI through its Director (2007) 1 SCC 70 ] Article 6(2) of he European Convention on Human Rights provides : “Everyone charged with a criminal offence shall be presumed innocent until proved guilty according to law”. Although India is not bound by the aforementioned Convention and as such it may not be necessary like the countries forming European countries to bring common law into land with the Convention, a balancing of the accused rights and the interest of the society is required to be taken into consideration. In India, however, subject to the statutory interdicts, the said principle forms the basis of criminal jurisprudence. For the aforementioned purpose the nature of the offence, seriousness as also gravity thereof may be taken into consideration. The courts must be on guard to see that merely on the application of presumption as contemplated under Section 139 of the Negotiable Instruments Act, the same may not lead to injustice or mistaken conviction. It is for the aforementioned reasons that we have taken into consideration the decisions operating in the field where the difficulty of proving a negative has been emphasized. It is not suggested that a negative can never be proved but there are cases where such difficulties are faced by the accused e,g,. honest and reasonable mistake of fact. In a recent Article “The Presumption of Innocence and Reverse Burdens : A Balancing Duty published in [2007] C.L.J. (March Part) 142 it has been stated :- “In determining whether a reverse burden is compatible with the presumption of innocence regard should also be had to the pragmatics of proof. How difficult would it be for the prosecution to prove guilt without the reverse burden? How easily could an innocent defendant discharge the reverse burden? But courts will not allow these pragmatic considerations to override the legitimate rights of the defendant. Pragmatism will have greater sway where the reverse burden would not pose the risk of great injustice where the offence is not too serious or the reverse burden only concerns a matter incidental to guilt. And greater weight will be given to prosecutorial efficiency in the regulatory environment." 34. We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same.35. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the courts below approached the case from a wholly wrong angle, viz., wrong application of the legal principles in the fact situation of the case. In view of the legal position as has been enunciated by this Court in M.S. Narayana Menon (supra) and later cases, we are of the opinion that the High Court should have entertained the revision application.
### Response:
1
### Explanation:
19. The courts below failed to notice that ordinarily in terms of Section 269SS of the Income Tax Act, any advance taken by way of any loan of more than Rs. 20,000/- was to be made by way of an account payee cheque only.Indisputably, a mandatory presumption is required to be raised in terms of Section 118(b) and Section 139 of the Act.The proviso appended to the said section provides for compliance of legal requirements before a complaint petition can be acted upon by a court of law. Section 139 of the Act merely raises a presumption in regard to the second aspect of the matter. Existence of legally recoverable debt is not a matter of presumption under Section 139 of the Act. It merely raises a presumption in favour of a holder of the cheque that the same has been issued for discharge of any debt or other liability.22. The courts below, as noticed hereinbefore, proceeded on the basis that Section 139 raises a presumption in regard to existence of a debt also. The courts below, in our opinion, committed a serious error in proceeding on the basis that for proving the defence the accused is required to step into the witness box and unless he does so he would not be discharging his burden. Such an approach on the part of the courts, we feel, is notcourts below proceeded to hold that the defence raised by the appellant has not been proved, which, in our opinion, is not correct. He did not know that the said cheque had not been encashed. He replied to the notice thinking that one of the cheque has been misused. There is nothing on record to show that he knew that one of the cheques was still with R.G. Bhat.We are not oblivious of the fact that the said provision has been inserted to regulate the growing business, trade, commerce and industrial activities of the country and the strict liability to promote greater vigilance in financial matters and to safeguard the faith of the creditor in the drawer of the cheque which is essential to the economic life of a developing country like India. This, however, shall not mean that the courts shall put a blind eye to the ground realities. Statute mandates raising of presumption but it stops at that. It does not say how presumption drawn should be held to have rebutted. Other important principles of legal jurisprudence, namely presumption of innocence as human rights and the doctrine of reverse burden introduced by Section 139 should be delicately balanced. Such balancing acts, indisputably would largely depend upon the factual matrix of each case, the materials brought on record and having regard to legal principles governing the same.35. Keeping in view the peculiar facts and circumstances of this case, we are of the opinion that the courts below approached the case from a wholly wrong angle, viz., wrong application of the legal principles in the fact situation of the case. In view of the legal position as has been enunciated by this Court in M.S. Narayana Menon (supra) and later cases, we are of the opinion that the High Court should have entertained the revision application.
|
LOK PRAHARI THROUGH ITS GENERAL SECRETARY Vs. THE STATE OF UTTAR PRADESH | and others 14 ; State of Punjab and another vs. Brijeshwar Singh Chahal and another 15 .33. Paragraph 23 and 35 of Kumari Shrilekha (supra) may be extracted with profit only to notice the absolute clarity in carrying forward the principle laid down by Hon. Bhagwati J., in Royappa (supra).?23. Thus, in a case like the present, if it is shown that the impugned State action is arbitrary and, therefore, violative of Article 14 of the Constitution, there can be no impediment in striking down the impugned act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons. …………35. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the 13 (2002) 2 SCC 188 14 (1991) 1 SCC 212 15 (2016) 6 SCC 1 mind.?34. The?final?culmination is in Shayara Bano vs. Union of India and others 16 where two members of the Bench (Hon?ble R.F. Nariman and Uday Umesh Lalit, JJ.) wrote as follows:?101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.?35. The above view received support of a third member of the Constitution Bench (Hon?ble Kurian Joseph, J.) 16 (2017) 9 SCC 1 36. In the light of the above views the allocation of government bungalows to constitutional functionaries enumerated in Section 4(3) of the 1981 Act after such functionaries demit public office(s) would be clearly subject to judicial review on the touchstone of Article 14 of the Constitution of India. This is particularly so as such bungalows constitute public property which by itself is scarce and meant for use of current holders of public offices. The above is manifested by the institution of Section 4-A in the 1981 Act by the Amendment Act of 1997 (Act 8 of 1997). The questions relating to allocation of such property, therefore, undoubtedly, are questions of public character and, therefore, the same would be amenable for being adjudicated on the touchstone of reasonable classification as well as arbitrariness.37. The present petitioner, as already noticed in the opening paragraphs of this judgment, had earlier approached this Court under Article 32 of the Constitution challenging the validity of the 1997 Rules. Not only the said writ petition was entertained but the 1997 Rules were, in fact, struck down. In doing so, this Court had, inter alia, considered the validity of the 1997 Rules in the light of Article 14 of the Constitution of India. The insertion of Section 4(3) by the 2016 Amendment as a substantive provision of the statute when the 1997 Rules to the same effect were declared invalid by the Court would require the curing of the invalidity found by this Court in the matter of allotment of government accommodation to former Chief Ministers. The defect found earlier persists. The impugned legislation, therefore, can very well be construed to be an attempt to overreach the judgment of this Court in Lok Prahari (supra).38. Natural resources, public lands and the public goods like government bungalows/official residence are public property that belongs to the people of the country. The ‘Doctrine of Equality? which emerges from the concepts of justice, fairness must guide the State in the distribution/allocation of the same. The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality.39. Undoubtedly, Section 4(3) of the 1981 Act would have the effect of creating a separate class of citizens for conferment of benefits by way of distribution of public property on the basis of the previous public office held by them. Once such persons demit the public office earlier held by them there is nothing to distinguish them from the common man. The public office held by them becomes a matter of history and, therefore, cannot form the basis of a reasonable classification to categorize previous holders of public office as a special category of persons entitled to the benefit of special privileges. The test of reasonable classification, therefore, has to fail. Not only that the legislation i.e. Section 4(3) of the 1981 Act recognizing former holders of public office as a special class of citizens, viewed in the aforesaid context, would appear to be arbitrary and discriminatory thereby violating the equality clause. It is a legislative exercise based on irrelevant and legally unacceptable considerations, unsupported by any constitutional sanctity. | 1[ds]27. Coming back to the issue in hand a brief look at the contentions advanced may be appropriate at this stage.The State of Uttar Pradesh has sought to defeat the writ petition by contending that the same being under Article 32 of the Constitution of India a direct infringement of the fundamental rights of the petitioner must be established which is nowhere apparent even on a close scrutiny. The writ petition, therefore, is not maintainable. Alternatively, it has been argued that infringement of the equality clause under Article 14 of the Constitution of India is a far cry as there is an intelligible differentia to justify a separate and exclusive treatment to former Chief Ministers who form a class of their own.While it is true that Article 32 of the Constitution is to be invoked for enforcement of the fundamental rights of a citizen or a non citizen, as may be, and there must be a violation or infringement thereof we have moved away from the theory of infringement of the fundamental rights of an individual citizen or non citizen to one of infringement of rights of a class. In fact, the above transformation is the foundation of what had developed as an independent and innovative stream of jurisprudence called?Public Interest Litigation?or class actionThough evolved much earlier, a Solemn affirmation of the aforesaid principle is to be found in paragraph 48 of the report in Vineet Narain (supra) which would be eminently worthy of recapitulation and, therefore, is extracted below:In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.?9. Along with the aforesaid shift in the judicial thinking there has been an equally important shift from the classical test (classification test) for the purpose of enquiry with regard to infringement of the equality clause under Article 14 of the Constitution of India to, what may be termed, a more dynamic test of arbitrariness. The shift which depicts two different dimensions of a challenge on the anvil of Article 14 is best demonstrated by a comparative reading of the judgments of this Court in the case of Budhan Choudhry and others vs. State ofand E.P. Royappa vs. State of Tamil Nadu and another.In the light of the above views the allocation of government bungalows to constitutional functionaries enumerated in Section 4(3) of the 1981 Act after such functionaries demit public office(s) would be clearly subject to judicial review on the touchstone of Article 14 of the Constitution of India. This is particularly so as such bungalows constitute public property which by itself is scarce and meant for use of current holders of public offices. The above is manifested by the institution of Section 4-A in the 1981 Act by the Amendment Act of 1997 (Act 8 of 1997). The questions relating to allocation of such property, therefore, undoubtedly, are questions of public character and, therefore, the same would be amenable for being adjudicated on the touchstone of reasonable classification as well as arbitrariness.37. The present petitioner, as already noticed in the opening paragraphs of this judgment, had earlier approached this Court under Article 32 of the Constitution challenging the validity of the 1997 Rules. Not only the said writ petition was entertained but the 1997 Rules were, in fact, struck down. In doing so, this Court had, inter alia, considered the validity of the 1997 Rules in the light of Article 14 of the Constitution of IndiaThe insertion of Section 4(3) by the 2016 Amendment as a substantive provision of the statute when the 1997 Rules to the same effect were declared invalid by the Court would require the curing of the invalidity found by this Court in the matter of allotment of government accommodation to former Chief Ministers. The defect found earlier persists. The impugned legislation, therefore, can very well be construed to be an attempt to overreach the judgment of this Court in Lok Prahari (supra).38. Natural resources, public lands and the public goods like government bungalows/official residence are public property that belongs to the people of the country. The ‘Doctrine of Equality? which emerges from the concepts of justice, fairness must guide the State in the distribution/allocation of the same. The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality.39. Undoubtedly, Section 4(3) of the 1981 Act would have the effect of creating a separate class of citizens for conferment of benefits by way of distribution of public property on the basis of the previous public office held by them. Once such persons demit the public office earlier held by them there is nothing to distinguish them from the common man. The public office held by them becomes a matter of history and, therefore, cannot form the basis of a reasonable classification to categorize previous holders of public office as a special category of persons entitled to the benefit of special privileges. The test of reasonable classification, therefore, has to fail. Not only that the legislation i.e. Section 4(3) of the 1981 Act recognizing former holders of public office as a special class of citizens, viewed in the aforesaid context, would appear to be arbitrary and discriminatory thereby violating the equality clause. It is a legislative exercise based on irrelevant and legally unacceptable considerations, unsupported by any constitutional sanctity. | 1 | 7,077 | 1,134 | ### 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:
and others 14 ; State of Punjab and another vs. Brijeshwar Singh Chahal and another 15 .33. Paragraph 23 and 35 of Kumari Shrilekha (supra) may be extracted with profit only to notice the absolute clarity in carrying forward the principle laid down by Hon. Bhagwati J., in Royappa (supra).?23. Thus, in a case like the present, if it is shown that the impugned State action is arbitrary and, therefore, violative of Article 14 of the Constitution, there can be no impediment in striking down the impugned act irrespective of the question whether an additional right, contractual or statutory, if any, is also available to the aggrieved persons. …………35. It is now too well settled that every State action, in order to survive, must not be susceptible to the vice of arbitrariness which is the crux of Article 14 of the Constitution and basic to the rule of law, the system which governs us. Arbitrariness is the very negation of the rule of law. Satisfaction of this basic test in every State action is sine qua non to its validity and in this respect, the State cannot claim comparison with a private individual even in the field of contract. This distinction between the State and a private individual in the field of contract has to be borne in the 13 (2002) 2 SCC 188 14 (1991) 1 SCC 212 15 (2016) 6 SCC 1 mind.?34. The?final?culmination is in Shayara Bano vs. Union of India and others 16 where two members of the Bench (Hon?ble R.F. Nariman and Uday Umesh Lalit, JJ.) wrote as follows:?101. It will be noticed that a Constitution Bench of this Court in Indian Express Newspapers (Bombay) (P) Ltd. v. Union of India stated that it was settled law that subordinate legislation can be challenged on any of the grounds available for challenge against plenary legislation. This being the case, there is no rational distinction between the two types of legislation when it comes to this ground of challenge under Article 14. The test of manifest arbitrariness, therefore, as laid down in the aforesaid judgments would apply to invalidate legislation as well as subordinate legislation under Article 14. Manifest arbitrariness, therefore, must be something done by the legislature capriciously, irrationally and/or without adequate determining principle. Also, when something is done which is excessive and disproportionate, such legislation would be manifestly arbitrary. We are, therefore, of the view that arbitrariness in the sense of manifest arbitrariness as pointed out by us above would apply to negate legislation as well under Article 14.?35. The above view received support of a third member of the Constitution Bench (Hon?ble Kurian Joseph, J.) 16 (2017) 9 SCC 1 36. In the light of the above views the allocation of government bungalows to constitutional functionaries enumerated in Section 4(3) of the 1981 Act after such functionaries demit public office(s) would be clearly subject to judicial review on the touchstone of Article 14 of the Constitution of India. This is particularly so as such bungalows constitute public property which by itself is scarce and meant for use of current holders of public offices. The above is manifested by the institution of Section 4-A in the 1981 Act by the Amendment Act of 1997 (Act 8 of 1997). The questions relating to allocation of such property, therefore, undoubtedly, are questions of public character and, therefore, the same would be amenable for being adjudicated on the touchstone of reasonable classification as well as arbitrariness.37. The present petitioner, as already noticed in the opening paragraphs of this judgment, had earlier approached this Court under Article 32 of the Constitution challenging the validity of the 1997 Rules. Not only the said writ petition was entertained but the 1997 Rules were, in fact, struck down. In doing so, this Court had, inter alia, considered the validity of the 1997 Rules in the light of Article 14 of the Constitution of India. The insertion of Section 4(3) by the 2016 Amendment as a substantive provision of the statute when the 1997 Rules to the same effect were declared invalid by the Court would require the curing of the invalidity found by this Court in the matter of allotment of government accommodation to former Chief Ministers. The defect found earlier persists. The impugned legislation, therefore, can very well be construed to be an attempt to overreach the judgment of this Court in Lok Prahari (supra).38. Natural resources, public lands and the public goods like government bungalows/official residence are public property that belongs to the people of the country. The ‘Doctrine of Equality? which emerges from the concepts of justice, fairness must guide the State in the distribution/allocation of the same. The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality.39. Undoubtedly, Section 4(3) of the 1981 Act would have the effect of creating a separate class of citizens for conferment of benefits by way of distribution of public property on the basis of the previous public office held by them. Once such persons demit the public office earlier held by them there is nothing to distinguish them from the common man. The public office held by them becomes a matter of history and, therefore, cannot form the basis of a reasonable classification to categorize previous holders of public office as a special category of persons entitled to the benefit of special privileges. The test of reasonable classification, therefore, has to fail. Not only that the legislation i.e. Section 4(3) of the 1981 Act recognizing former holders of public office as a special class of citizens, viewed in the aforesaid context, would appear to be arbitrary and discriminatory thereby violating the equality clause. It is a legislative exercise based on irrelevant and legally unacceptable considerations, unsupported by any constitutional sanctity.
### Response:
1
### Explanation:
State of Uttar Pradesh has sought to defeat the writ petition by contending that the same being under Article 32 of the Constitution of India a direct infringement of the fundamental rights of the petitioner must be established which is nowhere apparent even on a close scrutiny. The writ petition, therefore, is not maintainable. Alternatively, it has been argued that infringement of the equality clause under Article 14 of the Constitution of India is a far cry as there is an intelligible differentia to justify a separate and exclusive treatment to former Chief Ministers who form a class of their own.While it is true that Article 32 of the Constitution is to be invoked for enforcement of the fundamental rights of a citizen or a non citizen, as may be, and there must be a violation or infringement thereof we have moved away from the theory of infringement of the fundamental rights of an individual citizen or non citizen to one of infringement of rights of a class. In fact, the above transformation is the foundation of what had developed as an independent and innovative stream of jurisprudence called?Public Interest Litigation?or class actionThough evolved much earlier, a Solemn affirmation of the aforesaid principle is to be found in paragraph 48 of the report in Vineet Narain (supra) which would be eminently worthy of recapitulation and, therefore, is extracted below:In view of the common perception shared by everyone including the Government of India and the Independent Review Committee (IRC) of the need for insulation of the CBI from extraneous influence of any kind, it is imperative that some action is urgently taken to prevent the continuance of this situation with a view to ensure proper implementation of the rule of law. This is the need of equality guaranteed in the Constitution. The right to equality in a situation like this is that of the Indian polity and not merely of a few individuals. The powers conferred on this Court by the Constitution are ample to remedy this defect and to ensure enforcement of the concept of equality.?9. Along with the aforesaid shift in the judicial thinking there has been an equally important shift from the classical test (classification test) for the purpose of enquiry with regard to infringement of the equality clause under Article 14 of the Constitution of India to, what may be termed, a more dynamic test of arbitrariness. The shift which depicts two different dimensions of a challenge on the anvil of Article 14 is best demonstrated by a comparative reading of the judgments of this Court in the case of Budhan Choudhry and others vs. State ofand E.P. Royappa vs. State of Tamil Nadu and another.In the light of the above views the allocation of government bungalows to constitutional functionaries enumerated in Section 4(3) of the 1981 Act after such functionaries demit public office(s) would be clearly subject to judicial review on the touchstone of Article 14 of the Constitution of India. This is particularly so as such bungalows constitute public property which by itself is scarce and meant for use of current holders of public offices. The above is manifested by the institution of Section 4-A in the 1981 Act by the Amendment Act of 1997 (Act 8 of 1997). The questions relating to allocation of such property, therefore, undoubtedly, are questions of public character and, therefore, the same would be amenable for being adjudicated on the touchstone of reasonable classification as well as arbitrariness.37. The present petitioner, as already noticed in the opening paragraphs of this judgment, had earlier approached this Court under Article 32 of the Constitution challenging the validity of the 1997 Rules. Not only the said writ petition was entertained but the 1997 Rules were, in fact, struck down. In doing so, this Court had, inter alia, considered the validity of the 1997 Rules in the light of Article 14 of the Constitution of IndiaThe insertion of Section 4(3) by the 2016 Amendment as a substantive provision of the statute when the 1997 Rules to the same effect were declared invalid by the Court would require the curing of the invalidity found by this Court in the matter of allotment of government accommodation to former Chief Ministers. The defect found earlier persists. The impugned legislation, therefore, can very well be construed to be an attempt to overreach the judgment of this Court in Lok Prahari (supra).38. Natural resources, public lands and the public goods like government bungalows/official residence are public property that belongs to the people of the country. The ‘Doctrine of Equality? which emerges from the concepts of justice, fairness must guide the State in the distribution/allocation of the same. The Chief Minister, once he/she demits the office, is at par with the common citizen, though by virtue of the office held, he/she may be entitled to security and other protocols. But allotment of government bungalow, to be occupied during his/her lifetime, would not be guided by the constitutional principle of equality.39. Undoubtedly, Section 4(3) of the 1981 Act would have the effect of creating a separate class of citizens for conferment of benefits by way of distribution of public property on the basis of the previous public office held by them. Once such persons demit the public office earlier held by them there is nothing to distinguish them from the common man. The public office held by them becomes a matter of history and, therefore, cannot form the basis of a reasonable classification to categorize previous holders of public office as a special category of persons entitled to the benefit of special privileges. The test of reasonable classification, therefore, has to fail. Not only that the legislation i.e. Section 4(3) of the 1981 Act recognizing former holders of public office as a special class of citizens, viewed in the aforesaid context, would appear to be arbitrary and discriminatory thereby violating the equality clause. It is a legislative exercise based on irrelevant and legally unacceptable considerations, unsupported by any constitutional sanctity.
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M.REVANNA Vs. ANJANAMMA (DEAD) BY LRS | 2007. Consequently, he was discharged by the Trial Court. However, after prolonged adjournments, PW-2 made himself available and was cross-examined on 12.02.2008. Thereafter, on 01.09.2008, Plaintiff Nos. 1 to 5 made an application being I.A. No. 22 under Order VI Rule 17 of the Code of Civil Procedure (for short, ?the CPC?) for amendment of the plaint, pleading that a prior partition had taken place as per the memorandum of partition dated 18.05.1972, as mentioned supra. The Respondent No. 1 herein and the other two contesting defendants, i.e. Defendant Nos. 4 and 5 objected to the amendment application, contending inter alia that the application for amendment of the plaint is not only highly belated but also not bona fide, and that at no point of time was there any partition among the family members. The Trial Court, however, proceeded to allow the application for amendment by the order dated 14.11.2008, which came to be set aside by the High Court by the impugned order dated 09.04.2010. Hence, this appeal by the unsuccessful Plaintiff No. 1. It is relevant to note that Plaintiff Nos. 2 to 5 acting through Plaintiff No. 1 have accepted the order rejecting the amendment application. 5. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule 17 of the CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money. 6. As mentioned supra, the suit was filed in the year 1993 and at that point of time, Defendant Nos. 4 to 6 were not made parties to the suit. Plaintiff Nos. 1 to 5 and Defendants Nos. 1 to 3 were the only parties. They had filed a joint memorandum for the dismissal of the suit on 22.04.1993, which was within one or two months of the filing of the suit. The compromise petition came to be rightly dismissed by the High Court in RFA No. 297/1994. In the compromise petition, curiously, it was noted that the joint family properties were divided by metes and bounds in the year 1972. If the partition had really taken place in the year 1972 and was acted upon as per the Panchayat Parikath, then Plaintiff Nos. 1 to 5 would not have filed a suit for partition and separate possession in the year 1993. Be that as it may, it is clear from records that the suit was being prolonged on one pretext or the other by the Plaintiff Nos. 1 to 5 and ultimately, the application for amendment of the plaint came to be filed on 01.09.2008. By that time, the evidence of both the parties had been recorded and the matter was listed for final hearing before the Trial Court. If there indeed was a partition of the joint family properties earlier, nothing prevented Plaintiff Nos. 1 to 5 from making the necessary application for the amendment of the plaint earlier. So also, nothing prevented them from making the necessary averment in the plaint itself, inasmuch as the suit was filed in the year 1993. Even according to Plaintiff Nos. 1 to 5, they came to know about the compromise in the year 1993 itself. Thus, there is no explanation by them as to why they did not file the application for amendment till the year 2008, given that the suit had been filed in 1993. Though, even when Plaintiff Nos. 1 to 5 came to know about the partition deed dated 18.05.1972 (Panchayat Parikath) on 22.04.1993, they kept quiet without filing an application for amendment of the plaint within a reasonable time. On the contrary, they proceeded to cross examine PW-1 thoroughly and took more than five years? time to get the examination of PW-2 completed, and only thereafter filed an application seeking amendment of the plaint on 01.09.2008, that too when the suit was posted for final arguments. As mentioned supra, the suit itself is for partition and separate possession. Now, by virtue of the application for amendment of pleadings, Plaintiff Nos. 1 to 5 want to plead that the partition had already taken place in the year 1972 and they are not interested to pursue the suit. Per contra, Plaintiff No. 6/Respondent No.1 herein wants to continue the proceedings in the suit for partition on the ground that the partition had not taken place at all. 7. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiff Nos. 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff No. 6/Respondent No. 1 herein. | 1[ds]6. As mentioned supra, the suit was filed in the year 1993 and at that point of time, Defendant Nos. 4 to 6 were not made parties to the suit. Plaintiff Nos. 1 to 5 and Defendants Nos. 1 to 3 were the only parties. They had filed a joint memorandum for the dismissal of the suit on 22.04.1993, which was within one or two months of the filing of the suit. The compromise petition came to be rightly dismissed by the High Court in RFA No. 297/1994. In the compromise petition, curiously, it was noted that the joint family properties were divided by metes and bounds in the year 1972. If the partition had really taken place in the year 1972 and was acted upon as per the Panchayat Parikath, then Plaintiff Nos. 1 to 5 would not have filed a suit for partition and separate possession in the year 1993. Be that as it may, it is clear from records that the suit was being prolonged on one pretext or the other by the Plaintiff Nos. 1 to 5 and ultimately, the application for amendment of the plaint came to be filed on 01.09.2008. By that time, the evidence of both the parties had been recorded and the matter was listed for final hearing before the Trial Court. If there indeed was a partition of the joint family properties earlier, nothing prevented Plaintiff Nos. 1 to 5 from making the necessary application for the amendment of the plaint earlier. So also, nothing prevented them from making the necessary averment in the plaint itself, inasmuch as the suit was filed in the year 1993. Even according to Plaintiff Nos. 1 to 5, they came to know about the compromise in the year 1993 itself. Thus, there is no explanation by them as to why they did not file the application for amendment till the year 2008, given that the suit had been filed in 1993. Though, even when Plaintiff Nos. 1 to 5 came to know about the partition deed dated 18.05.1972 (Panchayat Parikath) on 22.04.1993, they kept quiet without filing an application for amendment of the plaint within a reasonable time. On the contrary, they proceeded to cross examine PW-1 thoroughly and took more than five years? time to get the examination of PW-2 completed, and only thereafter filed an application seeking amendment of the plaint on 01.09.2008, that too when the suit was posted for final arguments. As mentioned supra, the suit itself is for partition and separate possession. Now, by virtue of the application for amendment of pleadings, Plaintiff Nos. 1 to 5 want to plead that the partition had already taken place in the year 1972 and they are not interested to pursue the suit. Per contra, Plaintiff No. 6/Respondent No.1 herein wants to continue the proceedings in the suit for partition on the ground that the partition had not taken place at all.Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiff Nos. 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff No. 6/Respondent No. 1 herein. | 1 | 1,654 | 674 | ### 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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2007. Consequently, he was discharged by the Trial Court. However, after prolonged adjournments, PW-2 made himself available and was cross-examined on 12.02.2008. Thereafter, on 01.09.2008, Plaintiff Nos. 1 to 5 made an application being I.A. No. 22 under Order VI Rule 17 of the Code of Civil Procedure (for short, ?the CPC?) for amendment of the plaint, pleading that a prior partition had taken place as per the memorandum of partition dated 18.05.1972, as mentioned supra. The Respondent No. 1 herein and the other two contesting defendants, i.e. Defendant Nos. 4 and 5 objected to the amendment application, contending inter alia that the application for amendment of the plaint is not only highly belated but also not bona fide, and that at no point of time was there any partition among the family members. The Trial Court, however, proceeded to allow the application for amendment by the order dated 14.11.2008, which came to be set aside by the High Court by the impugned order dated 09.04.2010. Hence, this appeal by the unsuccessful Plaintiff No. 1. It is relevant to note that Plaintiff Nos. 2 to 5 acting through Plaintiff No. 1 have accepted the order rejecting the amendment application. 5. Leave to amend may be refused if it introduces a totally different, new and inconsistent case, or challenges the fundamental character of the suit. The proviso to Order VI Rule 17 of the CPC virtually prevents an application for amendment of pleadings from being allowed after the trial has commenced, unless the Court comes to the conclusion that in spite of due diligence, the party could not have raised the matter before the commencement of the trial. The proviso, to an extent, curtails absolute discretion to allow amendment at any stage. Therefore, the burden is on the person who seeks an amendment after commencement of the trial to show that in spite of due diligence, such an amendment could not have been sought earlier. There cannot be any dispute that an amendment cannot be claimed as a matter of right, and under all circumstances. Though normally amendments are allowed in the pleadings to avoid multiplicity of litigation, the Court needs to take into consideration whether the application for amendment is bona fide or mala fide and whether the amendment causes such prejudice to the other side which cannot be compensated adequately in terms of money. 6. As mentioned supra, the suit was filed in the year 1993 and at that point of time, Defendant Nos. 4 to 6 were not made parties to the suit. Plaintiff Nos. 1 to 5 and Defendants Nos. 1 to 3 were the only parties. They had filed a joint memorandum for the dismissal of the suit on 22.04.1993, which was within one or two months of the filing of the suit. The compromise petition came to be rightly dismissed by the High Court in RFA No. 297/1994. In the compromise petition, curiously, it was noted that the joint family properties were divided by metes and bounds in the year 1972. If the partition had really taken place in the year 1972 and was acted upon as per the Panchayat Parikath, then Plaintiff Nos. 1 to 5 would not have filed a suit for partition and separate possession in the year 1993. Be that as it may, it is clear from records that the suit was being prolonged on one pretext or the other by the Plaintiff Nos. 1 to 5 and ultimately, the application for amendment of the plaint came to be filed on 01.09.2008. By that time, the evidence of both the parties had been recorded and the matter was listed for final hearing before the Trial Court. If there indeed was a partition of the joint family properties earlier, nothing prevented Plaintiff Nos. 1 to 5 from making the necessary application for the amendment of the plaint earlier. So also, nothing prevented them from making the necessary averment in the plaint itself, inasmuch as the suit was filed in the year 1993. Even according to Plaintiff Nos. 1 to 5, they came to know about the compromise in the year 1993 itself. Thus, there is no explanation by them as to why they did not file the application for amendment till the year 2008, given that the suit had been filed in 1993. Though, even when Plaintiff Nos. 1 to 5 came to know about the partition deed dated 18.05.1972 (Panchayat Parikath) on 22.04.1993, they kept quiet without filing an application for amendment of the plaint within a reasonable time. On the contrary, they proceeded to cross examine PW-1 thoroughly and took more than five years? time to get the examination of PW-2 completed, and only thereafter filed an application seeking amendment of the plaint on 01.09.2008, that too when the suit was posted for final arguments. As mentioned supra, the suit itself is for partition and separate possession. Now, by virtue of the application for amendment of pleadings, Plaintiff Nos. 1 to 5 want to plead that the partition had already taken place in the year 1972 and they are not interested to pursue the suit. Per contra, Plaintiff No. 6/Respondent No.1 herein wants to continue the proceedings in the suit for partition on the ground that the partition had not taken place at all. 7. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiff Nos. 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff No. 6/Respondent No. 1 herein.
### Response:
1
### Explanation:
6. As mentioned supra, the suit was filed in the year 1993 and at that point of time, Defendant Nos. 4 to 6 were not made parties to the suit. Plaintiff Nos. 1 to 5 and Defendants Nos. 1 to 3 were the only parties. They had filed a joint memorandum for the dismissal of the suit on 22.04.1993, which was within one or two months of the filing of the suit. The compromise petition came to be rightly dismissed by the High Court in RFA No. 297/1994. In the compromise petition, curiously, it was noted that the joint family properties were divided by metes and bounds in the year 1972. If the partition had really taken place in the year 1972 and was acted upon as per the Panchayat Parikath, then Plaintiff Nos. 1 to 5 would not have filed a suit for partition and separate possession in the year 1993. Be that as it may, it is clear from records that the suit was being prolonged on one pretext or the other by the Plaintiff Nos. 1 to 5 and ultimately, the application for amendment of the plaint came to be filed on 01.09.2008. By that time, the evidence of both the parties had been recorded and the matter was listed for final hearing before the Trial Court. If there indeed was a partition of the joint family properties earlier, nothing prevented Plaintiff Nos. 1 to 5 from making the necessary application for the amendment of the plaint earlier. So also, nothing prevented them from making the necessary averment in the plaint itself, inasmuch as the suit was filed in the year 1993. Even according to Plaintiff Nos. 1 to 5, they came to know about the compromise in the year 1993 itself. Thus, there is no explanation by them as to why they did not file the application for amendment till the year 2008, given that the suit had been filed in 1993. Though, even when Plaintiff Nos. 1 to 5 came to know about the partition deed dated 18.05.1972 (Panchayat Parikath) on 22.04.1993, they kept quiet without filing an application for amendment of the plaint within a reasonable time. On the contrary, they proceeded to cross examine PW-1 thoroughly and took more than five years? time to get the examination of PW-2 completed, and only thereafter filed an application seeking amendment of the plaint on 01.09.2008, that too when the suit was posted for final arguments. As mentioned supra, the suit itself is for partition and separate possession. Now, by virtue of the application for amendment of pleadings, Plaintiff Nos. 1 to 5 want to plead that the partition had already taken place in the year 1972 and they are not interested to pursue the suit. Per contra, Plaintiff No. 6/Respondent No.1 herein wants to continue the proceedings in the suit for partition on the ground that the partition had not taken place at all.Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the application for amendment of the plaint is not only belated but also not bona fide, and if allowed, would change the nature and character of the suit. If the application for amendment is allowed, the same would lead to a travesty of justice, inasmuch as the Court would be allowing Plaintiff Nos. 1 to 5 to withdraw their admission made in the plaint that the partition had not taken place earlier. Hence, to grant permission for amendment of the plaint at this stage would cause serious prejudice to Plaintiff No. 6/Respondent No. 1 herein.
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Binode Hembram Vs. State of West Bengal | Khanna, J.1. This is a petition through jail under Article 32 of the Constitution of India for the issue of a writ of habeas corpus by Binode Hembram, who has been ordered to be detained under sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act by the District Magistrate, Midnapore "with a view to preventing him from acting in any manner prejudicial to the maintenance of public order".2. The petitioner in pursuance of the detention order was arrested on December 29, 1971, and was served with the order of detention as well as the ground of detention together with the vernacular translation thereof. Report about the making of the detention order was sent by the District Magistrate to the State Government along with necessary particulars on December 30, 1971, and the detention order was approved by the Government on January 4, 1972. On January 10, 1972, the State Government received representation from the petitioner. The said representation was rejected by the State Government on February 19, 1972. In the meanwhile, on January 20, 1972, the State Government placed the case of the petitioner before the Advisory Board. The petitioners representation after being rejected, was also sent to the Advisory Board. The Advisory Board, after considering the material placed before it, sent its report on February 22, 1972. Opinion was expressed by the Board that there was sufficient cause for the petitioners detention. The order of detention was confirmed by the State Government on March 8, 1972.3. The petition has been resisted by the State Government and the affidavit of Shri Sukumar Sen, Deputy Secretary, Home (Special) Department, Government of West Bengal has been filed in opposition to the petition.4. We have heard Mr. Harbans Singh, who has argued the case amicus curiae on behalf of the petitioner, and Mr. Chatterjee on behalf of the State, and are of the opinion that there has been inordinate delay on the part of the State Government in disposing of the representation of the petitioner and this fact is sufficient to invalidate his detention. The representation of the petitioner, as mentioned earlier, was received by that Government on January 10, 1972, and was rejected by that Government on February 19, 1972. There thus elapsed a period of about 40 days between the receipt of the representation and its disposal by the Government. The State Government has tried to explain the delay on the ground that there was a go-slow movement launched by the State Government employees sometime back and that movement resulted in dislocation of office work and also increase in the volume of work. There is, however, nothing to show that there was any go-slow movement during the days when the representation of the petitioner was received. Any such movement at a time prior to the receipt of the representation would not, in our opinion, justify the delay in the disposal of the representation. In the case of Amulya Chandra Dey v. State of West Bengal (W.P. No. 118 of 1972, decided on July 10, 1972) ((1972) 2 SCC 902 : 1972 SCC (Cri) 906 ) an attempt was made by the State Government to justify the delay on a similar ground. The representation in that case had been received on December 3, 1971, and had been disposed of on December 22, 1971. Affidavit was filed on behalf of the State Government that there were demonstrations by the State Government employees during the period from September 12, till the end of November, 1971. It was observed by this Court that "even assuming that the above statement is correct, it furnishes no reason for the delay in the disposal of the representation of the petitioner, as the dislocation of work was only from September 12 to end of November, 1971, whereas the representation was received by the Government on December 3, 1971". The detention of the detenu was held to be illegal and he was ordered to be set at liberty. Reliance in this context was placed upon the decision in the case of Jayanarayan Sukul v. State of West Bengal ((1970) 3 SCR 225 : (1971) 1 SCC 219). wherein this Court observed :"The fundamental right of the detenu to have his representation considered by the appropriate Government would be rendered meaningless if the Government does not deal with the matter expeditiously but at its own sweet-will and convenience."5. In the light of the view we have taken in the matter regarding the delay in the disposal of the representation, it is not necessary to go into the other submissions of Mr. Harbans Singh. | 1[ds]4. We have heard Mr. Harbans Singh, who has argued the case amicus curiae on behalf of the petitioner, and Mr. Chatterjee on behalf of the State, and are of the opinion that there has been inordinate delay on the part of the State Government in disposing of the representation of the petitioner and this fact is sufficient to invalidate his detention. The representation of the petitioner, as mentioned earlier, was received by that Government on January 10, 1972, and was rejected by that Government on February 19, 1972. There thus elapsed a period of about 40 days between the receipt of the representation and its disposal by the Government. The State Government has tried to explain the delay on the ground that there was amovement launched by the State Government employees sometime back and that movement resulted in dislocation of office work and also increase in the volume of work. There is, however, nothing to show that there was anymovement during the days when the representation of the petitioner was received. Any such movement at a time prior to the receipt of the representation would not, in our opinion, justify the delay in the disposal of the representation. In the case of Amulya Chandra Dey v. State of West Bengal (W.P. No. 118 of 1972, decided on July 10, 1972) ((1972) 2 SCC 902 : 1972 SCC (Cri) 906 ) an attempt was made by the State Government to justify the delay on a similar ground. The representation in that case had been received on December 3, 1971, and had been disposed of on December 22, 1971. Affidavit was filed on behalf of the State Government that there were demonstrations by the State Government employees during the period from September 12, till the end of November, 1971. It was observed by this Court that "even assuming that the above statement is correct, it furnishes no reason for the delay in the disposal of the representation of the petitioner, as the dislocation of work was only from September 12 to end of November, 1971, whereas the representation was received by the Government on December 3, 1971". The detention of the detenu was held to be illegal and he was ordered to be set at liberty. Reliance in this context was placed upon the decision in the case of Jayanarayan Sukul v. State of West Bengal ((1970) 3 SCR 225 : (1971) 1 SCC 219). wherein this Court observed :"The fundamental right of the detenu to have his representation considered by the appropriate Government would be rendered meaningless if the Government does not deal with the matter expeditiously but at its ownand convenience."5. In the light of the view we have taken in the matter regarding the delay in the disposal of the representation, it is not necessary to go into the other submissions of Mr. Harbans Singh. | 1 | 871 | 542 | ### 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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Khanna, J.1. This is a petition through jail under Article 32 of the Constitution of India for the issue of a writ of habeas corpus by Binode Hembram, who has been ordered to be detained under sub-section (1) read with sub-section (2) of Section 3 of the Maintenance of Internal Security Act by the District Magistrate, Midnapore "with a view to preventing him from acting in any manner prejudicial to the maintenance of public order".2. The petitioner in pursuance of the detention order was arrested on December 29, 1971, and was served with the order of detention as well as the ground of detention together with the vernacular translation thereof. Report about the making of the detention order was sent by the District Magistrate to the State Government along with necessary particulars on December 30, 1971, and the detention order was approved by the Government on January 4, 1972. On January 10, 1972, the State Government received representation from the petitioner. The said representation was rejected by the State Government on February 19, 1972. In the meanwhile, on January 20, 1972, the State Government placed the case of the petitioner before the Advisory Board. The petitioners representation after being rejected, was also sent to the Advisory Board. The Advisory Board, after considering the material placed before it, sent its report on February 22, 1972. Opinion was expressed by the Board that there was sufficient cause for the petitioners detention. The order of detention was confirmed by the State Government on March 8, 1972.3. The petition has been resisted by the State Government and the affidavit of Shri Sukumar Sen, Deputy Secretary, Home (Special) Department, Government of West Bengal has been filed in opposition to the petition.4. We have heard Mr. Harbans Singh, who has argued the case amicus curiae on behalf of the petitioner, and Mr. Chatterjee on behalf of the State, and are of the opinion that there has been inordinate delay on the part of the State Government in disposing of the representation of the petitioner and this fact is sufficient to invalidate his detention. The representation of the petitioner, as mentioned earlier, was received by that Government on January 10, 1972, and was rejected by that Government on February 19, 1972. There thus elapsed a period of about 40 days between the receipt of the representation and its disposal by the Government. The State Government has tried to explain the delay on the ground that there was a go-slow movement launched by the State Government employees sometime back and that movement resulted in dislocation of office work and also increase in the volume of work. There is, however, nothing to show that there was any go-slow movement during the days when the representation of the petitioner was received. Any such movement at a time prior to the receipt of the representation would not, in our opinion, justify the delay in the disposal of the representation. In the case of Amulya Chandra Dey v. State of West Bengal (W.P. No. 118 of 1972, decided on July 10, 1972) ((1972) 2 SCC 902 : 1972 SCC (Cri) 906 ) an attempt was made by the State Government to justify the delay on a similar ground. The representation in that case had been received on December 3, 1971, and had been disposed of on December 22, 1971. Affidavit was filed on behalf of the State Government that there were demonstrations by the State Government employees during the period from September 12, till the end of November, 1971. It was observed by this Court that "even assuming that the above statement is correct, it furnishes no reason for the delay in the disposal of the representation of the petitioner, as the dislocation of work was only from September 12 to end of November, 1971, whereas the representation was received by the Government on December 3, 1971". The detention of the detenu was held to be illegal and he was ordered to be set at liberty. Reliance in this context was placed upon the decision in the case of Jayanarayan Sukul v. State of West Bengal ((1970) 3 SCR 225 : (1971) 1 SCC 219). wherein this Court observed :"The fundamental right of the detenu to have his representation considered by the appropriate Government would be rendered meaningless if the Government does not deal with the matter expeditiously but at its own sweet-will and convenience."5. In the light of the view we have taken in the matter regarding the delay in the disposal of the representation, it is not necessary to go into the other submissions of Mr. Harbans Singh.
### Response:
1
### Explanation:
4. We have heard Mr. Harbans Singh, who has argued the case amicus curiae on behalf of the petitioner, and Mr. Chatterjee on behalf of the State, and are of the opinion that there has been inordinate delay on the part of the State Government in disposing of the representation of the petitioner and this fact is sufficient to invalidate his detention. The representation of the petitioner, as mentioned earlier, was received by that Government on January 10, 1972, and was rejected by that Government on February 19, 1972. There thus elapsed a period of about 40 days between the receipt of the representation and its disposal by the Government. The State Government has tried to explain the delay on the ground that there was amovement launched by the State Government employees sometime back and that movement resulted in dislocation of office work and also increase in the volume of work. There is, however, nothing to show that there was anymovement during the days when the representation of the petitioner was received. Any such movement at a time prior to the receipt of the representation would not, in our opinion, justify the delay in the disposal of the representation. In the case of Amulya Chandra Dey v. State of West Bengal (W.P. No. 118 of 1972, decided on July 10, 1972) ((1972) 2 SCC 902 : 1972 SCC (Cri) 906 ) an attempt was made by the State Government to justify the delay on a similar ground. The representation in that case had been received on December 3, 1971, and had been disposed of on December 22, 1971. Affidavit was filed on behalf of the State Government that there were demonstrations by the State Government employees during the period from September 12, till the end of November, 1971. It was observed by this Court that "even assuming that the above statement is correct, it furnishes no reason for the delay in the disposal of the representation of the petitioner, as the dislocation of work was only from September 12 to end of November, 1971, whereas the representation was received by the Government on December 3, 1971". The detention of the detenu was held to be illegal and he was ordered to be set at liberty. Reliance in this context was placed upon the decision in the case of Jayanarayan Sukul v. State of West Bengal ((1970) 3 SCR 225 : (1971) 1 SCC 219). wherein this Court observed :"The fundamental right of the detenu to have his representation considered by the appropriate Government would be rendered meaningless if the Government does not deal with the matter expeditiously but at its ownand convenience."5. In the light of the view we have taken in the matter regarding the delay in the disposal of the representation, it is not necessary to go into the other submissions of Mr. Harbans Singh.
|
Prem Prakash Mundra, Etc Vs. State of Rajasthan and Another, Etc | subsequently killed him and buried the dead body near the Rudreshwar Mahadev temple on the river bank. It was also alleged that he committed those acts along with co-accused Gopal. The prosecution examined some witnesses to prove that they had seen Bhagirath taking Babloo on a cycle. There was no direct evidence to prove the murder.3. The trial Court held that the prosecution has satisfactorily established that Bhagirath had a motive to kidnap and kill Babloo and that the circumstances, namely, that he was last seen in the company of Babloo and that he had pointed out the place where the dead body of Babloo was buried were not only sufficient for convicting him under Section 364, I.P.C. but also for his conviction under Section 302, I.P.C. It then awarded sentence of death. The trial Court, however, held that the evidence against co-accused Gopal was not sufficient to establish his participation either in kidnapping or in the murder of Babloo. It, therefore, acquitted him.4. As death sentence was awarded to Bhagirath, a reference was made by the trial Court to the High Court for confirmation of that sentence. Bhagirath also challenged his conviction under Section 364, I.P.C. by filing an appeal. The High Court disposed of both the cases by a common judgment. The High Court agreed with the finding that Bhagirath had a motive to commit the offence and that he had kidnapped Babloo. But it was of the view that the circumstance that Bhagirath had pointed out the place where the dead body of Babloo was buried was not an incriminating circumstance against him as he had not stated that he had buried the dead body. The High Court, therefore, held that the trial Court had committed an error in relying upon this circumstance and convicting him for the offence punishable under Section 302, I.P.C. Taking this view the High Court acquitted Bhagirath of the offence punishable under Section 302, I.P.C. His conviction under Section 364 was altered to one under Section 365. The accused has not challenged his conviction under Section 365 and we are told that he has already served out six years imprisonment for that offence. 5. It was contended by the learned appearing for the appellant-Prem Prakash and by the learned Counsel for the State that the High Court committed an error in not placing reliance upon the circumstance that the accused had buried the dead body and that it was recovered at his instance. They submitted that the Investigating Officer has categorically stated in his evidence that the accused had made a statement before him that he had buried the dead body in the river bank near the Rudreshwar Mahadev temple and there was no good reason to disbelieve him. It was also submitted that even otherwise that the fact that it was recovered at his instance ought to have been regarded as an incriminating circumstance and that circumstance along with the other circumstances ought to have been held sufficient for upholding the conviction under Section 302, I.P.C. 6. The finding that the accused had a motive to commit the offence is well supported by the evidence on record. The evidence of PW-14-Kavita, PW-15-Gopal Bhandari, PW-19-Bherulal, PW-20-Ramesh Chandra and PW-1-Rooplal has also established beyond doubt that the accused had taken away Babloo on a cycle, from the place where he was playing just by the side of his house to the room in which the accused was staying. The evidence of these witnesses further establishes that Babloo was with him till about 8.00 p.m. It was contended by the learned Counsel for the appellants that these circumstances, together with absence of any explanation by the accused as to when he left Babloo, were sufficient for convicting accused Bhagirath under Section 302, I.P.C. It was also contended that the High Court was not justified in not placing any reliance upon the circumstances that Bhagirath had pointed out the place where Babloos dead body was buried. 7. We have read the statement as recorded by the Investigating Officer and also its translation. Accused had not stated therein that he had buried the dead body. The Investigating Officer was, therefore, not right when he deposed that the accused had stated to him that he had buried the dead body of Babloo. The statement was not made in presence of any independent witness. The explanation of the accused was that he had come to know about that place from the talk among Hemant, Pravin, Rajesh and Sushil who were with him in the lock-up. He also stated that he had not voluntarily taken the police to that place but he was forcibly taken there. The Investigating Officer had admitted that he had recorded statement of Rajesh. Therefore, it becomes doubtful that the dead body was really recovered as a result of information given by the accused. The High Court was, therefore, right in holding that only conclusion that could be drawn from the statement of the accused was that he knew the place where the dead body was buried and as he had not stated that he had buried it, he could not be connected with the offence on the basis of that circumstance.8. The other two circumstances were rightly regarded as not sufficient for convicting the accused under Section 302, I.P.C. The material on record discloses that probably co-accused Gopal was also with him till 8.00 p.m. Though PW-1 denied in his evidence that he had seen Gopal also in the room of Bhagirath when he had gone there on hearing a child crying in that room, it has been brought out in his cross-examination that he had stated like that to the police. That creates a doubt regarding the circumstance that Babloo was last seen in the company of Bhagirath alone at about 8.00 p.m. on 2-9-1986. The dead body was found on the next day in the afternoon. For all these reasons, the view taken by the High Court cannot be regarded as unreasonable. | 0[ds]7. We have read the statement as recorded by the Investigating Officer and also its translation. Accused had not stated therein that he had buried the dead body. The Investigating Officer was, therefore, not right when he deposed that the accused had stated to him that he had buried the dead body of Babloo. The statement was not made in presence of any independent witness. The explanation of the accused was that he had come to know about that place from the talk among Hemant, Pravin, Rajesh and Sushil who were with him in theHe also stated that he had not voluntarily taken the police to that place but he was forcibly taken there. The Investigating Officer had admitted that he had recorded statement of Rajesh. Therefore, it becomes doubtful that the dead body was really recovered as a result of information given by the accused. The High Court was, therefore, right in holding that only conclusion that could be drawn from the statement of the accused was that he knew the place where the dead body was buried and as he had not stated that he had buried it, he could not be connected with the offence on the basis of that circumstance.8. The other two circumstances were rightly regarded as not sufficient for convicting the accused under Section 302, I.P.C. The material on record discloses that probablyGopal was also with him till 8.00 p.m. Thoughdenied in his evidence that he had seen Gopal also in the room of Bhagirath when he had gone there on hearing a child crying in that room, it has been brought out in histhat he had stated like that to the police. That creates a doubt regarding the circumstance that Babloo was last seen in the company of Bhagirath alone at about 8.00 p.m. onThe dead body was found on the next day in the afternoon. For all these reasons, the view taken by the High Court cannot be regarded as unreasonable. | 0 | 1,216 | 358 | ### 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:
subsequently killed him and buried the dead body near the Rudreshwar Mahadev temple on the river bank. It was also alleged that he committed those acts along with co-accused Gopal. The prosecution examined some witnesses to prove that they had seen Bhagirath taking Babloo on a cycle. There was no direct evidence to prove the murder.3. The trial Court held that the prosecution has satisfactorily established that Bhagirath had a motive to kidnap and kill Babloo and that the circumstances, namely, that he was last seen in the company of Babloo and that he had pointed out the place where the dead body of Babloo was buried were not only sufficient for convicting him under Section 364, I.P.C. but also for his conviction under Section 302, I.P.C. It then awarded sentence of death. The trial Court, however, held that the evidence against co-accused Gopal was not sufficient to establish his participation either in kidnapping or in the murder of Babloo. It, therefore, acquitted him.4. As death sentence was awarded to Bhagirath, a reference was made by the trial Court to the High Court for confirmation of that sentence. Bhagirath also challenged his conviction under Section 364, I.P.C. by filing an appeal. The High Court disposed of both the cases by a common judgment. The High Court agreed with the finding that Bhagirath had a motive to commit the offence and that he had kidnapped Babloo. But it was of the view that the circumstance that Bhagirath had pointed out the place where the dead body of Babloo was buried was not an incriminating circumstance against him as he had not stated that he had buried the dead body. The High Court, therefore, held that the trial Court had committed an error in relying upon this circumstance and convicting him for the offence punishable under Section 302, I.P.C. Taking this view the High Court acquitted Bhagirath of the offence punishable under Section 302, I.P.C. His conviction under Section 364 was altered to one under Section 365. The accused has not challenged his conviction under Section 365 and we are told that he has already served out six years imprisonment for that offence. 5. It was contended by the learned appearing for the appellant-Prem Prakash and by the learned Counsel for the State that the High Court committed an error in not placing reliance upon the circumstance that the accused had buried the dead body and that it was recovered at his instance. They submitted that the Investigating Officer has categorically stated in his evidence that the accused had made a statement before him that he had buried the dead body in the river bank near the Rudreshwar Mahadev temple and there was no good reason to disbelieve him. It was also submitted that even otherwise that the fact that it was recovered at his instance ought to have been regarded as an incriminating circumstance and that circumstance along with the other circumstances ought to have been held sufficient for upholding the conviction under Section 302, I.P.C. 6. The finding that the accused had a motive to commit the offence is well supported by the evidence on record. The evidence of PW-14-Kavita, PW-15-Gopal Bhandari, PW-19-Bherulal, PW-20-Ramesh Chandra and PW-1-Rooplal has also established beyond doubt that the accused had taken away Babloo on a cycle, from the place where he was playing just by the side of his house to the room in which the accused was staying. The evidence of these witnesses further establishes that Babloo was with him till about 8.00 p.m. It was contended by the learned Counsel for the appellants that these circumstances, together with absence of any explanation by the accused as to when he left Babloo, were sufficient for convicting accused Bhagirath under Section 302, I.P.C. It was also contended that the High Court was not justified in not placing any reliance upon the circumstances that Bhagirath had pointed out the place where Babloos dead body was buried. 7. We have read the statement as recorded by the Investigating Officer and also its translation. Accused had not stated therein that he had buried the dead body. The Investigating Officer was, therefore, not right when he deposed that the accused had stated to him that he had buried the dead body of Babloo. The statement was not made in presence of any independent witness. The explanation of the accused was that he had come to know about that place from the talk among Hemant, Pravin, Rajesh and Sushil who were with him in the lock-up. He also stated that he had not voluntarily taken the police to that place but he was forcibly taken there. The Investigating Officer had admitted that he had recorded statement of Rajesh. Therefore, it becomes doubtful that the dead body was really recovered as a result of information given by the accused. The High Court was, therefore, right in holding that only conclusion that could be drawn from the statement of the accused was that he knew the place where the dead body was buried and as he had not stated that he had buried it, he could not be connected with the offence on the basis of that circumstance.8. The other two circumstances were rightly regarded as not sufficient for convicting the accused under Section 302, I.P.C. The material on record discloses that probably co-accused Gopal was also with him till 8.00 p.m. Though PW-1 denied in his evidence that he had seen Gopal also in the room of Bhagirath when he had gone there on hearing a child crying in that room, it has been brought out in his cross-examination that he had stated like that to the police. That creates a doubt regarding the circumstance that Babloo was last seen in the company of Bhagirath alone at about 8.00 p.m. on 2-9-1986. The dead body was found on the next day in the afternoon. For all these reasons, the view taken by the High Court cannot be regarded as unreasonable.
### Response:
0
### Explanation:
7. We have read the statement as recorded by the Investigating Officer and also its translation. Accused had not stated therein that he had buried the dead body. The Investigating Officer was, therefore, not right when he deposed that the accused had stated to him that he had buried the dead body of Babloo. The statement was not made in presence of any independent witness. The explanation of the accused was that he had come to know about that place from the talk among Hemant, Pravin, Rajesh and Sushil who were with him in theHe also stated that he had not voluntarily taken the police to that place but he was forcibly taken there. The Investigating Officer had admitted that he had recorded statement of Rajesh. Therefore, it becomes doubtful that the dead body was really recovered as a result of information given by the accused. The High Court was, therefore, right in holding that only conclusion that could be drawn from the statement of the accused was that he knew the place where the dead body was buried and as he had not stated that he had buried it, he could not be connected with the offence on the basis of that circumstance.8. The other two circumstances were rightly regarded as not sufficient for convicting the accused under Section 302, I.P.C. The material on record discloses that probablyGopal was also with him till 8.00 p.m. Thoughdenied in his evidence that he had seen Gopal also in the room of Bhagirath when he had gone there on hearing a child crying in that room, it has been brought out in histhat he had stated like that to the police. That creates a doubt regarding the circumstance that Babloo was last seen in the company of Bhagirath alone at about 8.00 p.m. onThe dead body was found on the next day in the afternoon. For all these reasons, the view taken by the High Court cannot be regarded as unreasonable.
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Union of India Vs. Paliwal Electricals Private Limited | and the number of times the judges have been overruled by events-self-limitation can be seen to be the path of judicial wisdom and institutional prestige and stability." * The Court must always remember that legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry that exact wisdom and nice adaptation of remedy are not always possible and that judgment is largely a prophecy based on meagre and uninterpreted experience. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and effort method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The Courts cannot, as pointed out by the United States Supreme Court in Secy. of Agriculture v. Central Reig. Refining Co. (1950) 94 L.ed. 381, be converted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or possibilities of abuse come to light the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues." 9. The same principle should hold good in the matter of Exemption Notifications as well, for the said power is part and parcel of the enactment and is supposed to be employed to further the objects of enactment - subject, of course, to the condition that the Notification is not ultra vires the Act, and/or Article 14 of the Constitution of India. [See P. J. Irani v. State of Madras. 10. We are of the opinion that the judgment under appeal is erroneous for the reason that it has not borne in mind the aforementioned relevant consideration. It is equally in error in saying that the classification it brings about assuming that it does so - is not reasonable or that it has no nexus with the object underlying the Notification. Not only is Para 7 consistent with the object underlying the Notification, it indeed promotes it, as explained hereinbefore. We are constrained to say that the High Court has not bestowed the care and consideration which is expected of it before it strikes down such a Notification - or, for that matter, any statutory provision. For the very reason, the decision of the learned Single Judge of the Calcutta High Court in Banner & Co. v. Union of India must also be held to have been wrongly decided. 11. Before we conclude, we must deal with one more aspect. The decision under appeal quotes extensively from, and relies upon, the decision of the Calcutta High Court in Banner and Company. The Calcutta High Court relied upon the decisions of the High Courts in Bush (India) Limited v. Union of India & Ors., Bata (India) Limited v. Assistant Collector of Central Excise, Patna, Bapalal and Company v. Government of India & Ors. 1981 (8) ELT 581], Carona Sahu Co. Ltd. v. Superintendent, Central Excise & Ors. besides the decisions of this Court in Cibatul [supra] and Joint Secretary to Government of India v. Food Specialities Ltd. (SC) ECR C 860 SC = (SC). We may briefly refer to the said decisions and see whether any of them supports the decision arrived at by Calcutta and Allahabad High Courts. 12. Bush (India) Limited was concerned with the meaning and scope of the definition of "manufacture" in Section 2(f) and not with any Exemption Notification, much less with the Notifications concerned herein. The question there was whether merely by placing the Garrard Record Changer Decks on a wooden base with cover and selling it under the trade-name of Brush Auto-Changer, can it be regarded that a process of manufacture has taken place. It was held that mere placing of a ready-to-use article on a wooden base, with or without a cover, with a view to make it more saleable does not amount to process of manufacture within the meaning of Section 2(f). Bata (India) Limited merely says that just because Bata places it brand-name on the footwear manufactured by another, Bata cannot be treated as manufacturer of the said goods. Bapalal and Company deals with Notification No. 119 of 1975 dealing with job-works and the exemption granted to job workers. The decision in Carona Sahu Company Limited is similar to the decision in Bata (India) Limited. We are unable to see any relevance these decisions have on the question at issue herein. We have already referred to the ratio of Cibatul. Food Specialities Limited was a case where it manufactured certain goods whereupon it affixed the brand-name of Nestle under an agreement with the latter and sold them to Nestle. The question was as to how to value the said goods. The Revenue contended that the value should be determined on the basis of wholesale price at which Nestle sold those goods. The plea was rejected by this Court holding that the wholesale price at which Food Specialities sold the said goods to Nestle should be basis for determining the value. | 1[ds]The object underlying Para 7 is self-evident. If a small manufacturer who affixes the brand-name or trade-name of an ineligible manufacturer (a convenient expression to denote a manufacturer outside the purview of Notfn. No. 175 of 1986 and who owns or entitled to use a brand-name or trade-name), the very raison detre for granting the exemption disappears. The exemption is designed to enable the small manufacturer to survive in the market in competition with the ineligible manufacturer but if he joins, or identifies himself with, the ineligible manufacturer his goods become one with the goods of such ineligible manufacturer. They become indistinguishable. In the market, they will all be understood as one and the same goods. They no longer need the benefit under the Notification. It must be remembered that by extending the benefit of exemption, the State is foregoing public revenue to which it is entitled under the Act. The loss to public revenue is supposed to be compensated by helping along the small manufacturers to survive in the market and continue to produce. Once he becomes one with his competitor, the need for supporting crutches disappears. There is no reason why in such a case the State should forego the revenue due to it under the Act. It is the insufficient appreciation of this basic aspect that has led both the Allahabad and Calcutta High Courts astray. But before we deal with their approach and reasoning, it would be appropriate to deal with the nature and character of the power of exemption under Rule 8 of the Central Excise Rules.We are of the opinion that while examining the challenge to an Exemption Notification under the Central Excise Act, the observations in the decisions aforesaid should be kept in mind. It should also be remembered that generally speaking the Exemption Notification and the terms and conditions prescribed therein represent the policies of the government evolved to sub-serve public interest and public revenue. A very heavy burden lies upon the person who challenges them on the ground of Article 14. Unless otherwise established, the Court must presume that the said amendment was found by the Central Government to be necessary for giving effect to its policy [underlying the notification] on the basis of the working of the said Notification and that such an amendment was found necessary to prevent persons from taking unfair advantage of the concession. In fact, in this case, the explanatory note appended to amending Notification says so in so many words. If necessary, the Court could have called upon the Central Government to establish the reasons behind the amendment. [It did not think it fit to do so.] It is equally necessary to bear in mind, as pointed out repeatedly by this Court, that in economic and taxation sphere, a large latitude should be allowed to the Legislature. The Courts should bear in mind the following observations made by a Constitution Bench of this Court in R. K. Garg v. Union of India 372 :"Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J. that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or straight jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be deal with, greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights areCourt must always remember that legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry that exact wisdom and nice adaptation of remedy are not always possible and that judgment is largely a prophecy based on meagre and uninterpreted experience. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and effort method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid.We are of the opinion that the judgment under appeal is erroneous for the reason that it has not borne in mind the aforementioned relevant consideration. It is equally in error in saying that the classification it brings about assuming that it does so - is not reasonable or that it has no nexus with the object underlying the Notification. Not only is Para 7 consistent with the object underlying the Notification, it indeed promotes it, as explained hereinbefore. We are constrained to say that the High Court has not bestowed the care and consideration which is expected of it before it strikes down such a Notification - or, for that matter, any statutory provision. For the very reason, the decision of the learned Single Judge of the Calcutta High Court in Banner & Co. v. Union of India must also be held to have been wrongly decided.Bush (India) Limited was concerned with the meaning and scope of the definition of "manufacture" in Section 2(f) and not with any Exemption Notification, much less with the Notifications concerned herein. The question there was whether merely by placing the Garrard Record Changer Decks on a wooden base with cover and selling it under the trade-name of Brush Auto-Changer, can it be regarded that a process of manufacture has taken place. It was held that mere placing of a ready-to-use article on a wooden base, with or without a cover, with a view to make it more saleable does not amount to process of manufacture within the meaning of Section 2(f). Bata (India) Limited merely says that just because Bata places it brand-name on the footwear manufactured by another, Bata cannot be treated as manufacturer of the said goods. Bapalal and Company deals with Notification No. 119 of 1975 dealing with job-works and the exemption granted to job workers. The decision in Carona Sahu Company Limited is similar to the decision in Bata (India) Limited. We are unable to see any relevance these decisions have on the question at issue herein. We have already referred to the ratio of Cibatul. Food Specialities Limited was a case where it manufactured certain goods whereupon it affixed the brand-name of Nestle under an agreement with the latter and sold them to Nestle. The question was as to how to value the said goods. The Revenue contended that the value should be determined on the basis of wholesale price at which Nestle sold those goods. The plea was rejected by this Court holding that the wholesale price at which Food Specialities sold the said goods to Nestle should be basis for determining the value. | 1 | 3,498 | 1,314 | ### 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 the number of times the judges have been overruled by events-self-limitation can be seen to be the path of judicial wisdom and institutional prestige and stability." * The Court must always remember that legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry that exact wisdom and nice adaptation of remedy are not always possible and that judgment is largely a prophecy based on meagre and uninterpreted experience. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and effort method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid. The Courts cannot, as pointed out by the United States Supreme Court in Secy. of Agriculture v. Central Reig. Refining Co. (1950) 94 L.ed. 381, be converted into tribunals for relief from such crudities and inequities. There may even be possibilities of abuse, but that too cannot of itself be a ground for invalidating the legislation, because it is not possible for any legislature to anticipate as if by some divine prescience, distortions and abuses of its legislation which may be made by those subject to its provisions and to provide against such distortions and abuses. Indeed, howsoever great may be the care bestowed on its framing, it is difficult to conceive of a legislation which is not capable of being abused by perverted human ingenuity. The Court must therefore adjudge the constitutionality of such legislation by the generality of its provisions and not by its crudities or inequities or possibilities of abuse come to light the legislature can always step in and enact suitable amendatory legislation. That is the essence of pragmatic approach which must guide and inspire the legislature in dealing with complex economic issues." 9. The same principle should hold good in the matter of Exemption Notifications as well, for the said power is part and parcel of the enactment and is supposed to be employed to further the objects of enactment - subject, of course, to the condition that the Notification is not ultra vires the Act, and/or Article 14 of the Constitution of India. [See P. J. Irani v. State of Madras. 10. We are of the opinion that the judgment under appeal is erroneous for the reason that it has not borne in mind the aforementioned relevant consideration. It is equally in error in saying that the classification it brings about assuming that it does so - is not reasonable or that it has no nexus with the object underlying the Notification. Not only is Para 7 consistent with the object underlying the Notification, it indeed promotes it, as explained hereinbefore. We are constrained to say that the High Court has not bestowed the care and consideration which is expected of it before it strikes down such a Notification - or, for that matter, any statutory provision. For the very reason, the decision of the learned Single Judge of the Calcutta High Court in Banner & Co. v. Union of India must also be held to have been wrongly decided. 11. Before we conclude, we must deal with one more aspect. The decision under appeal quotes extensively from, and relies upon, the decision of the Calcutta High Court in Banner and Company. The Calcutta High Court relied upon the decisions of the High Courts in Bush (India) Limited v. Union of India & Ors., Bata (India) Limited v. Assistant Collector of Central Excise, Patna, Bapalal and Company v. Government of India & Ors. 1981 (8) ELT 581], Carona Sahu Co. Ltd. v. Superintendent, Central Excise & Ors. besides the decisions of this Court in Cibatul [supra] and Joint Secretary to Government of India v. Food Specialities Ltd. (SC) ECR C 860 SC = (SC). We may briefly refer to the said decisions and see whether any of them supports the decision arrived at by Calcutta and Allahabad High Courts. 12. Bush (India) Limited was concerned with the meaning and scope of the definition of "manufacture" in Section 2(f) and not with any Exemption Notification, much less with the Notifications concerned herein. The question there was whether merely by placing the Garrard Record Changer Decks on a wooden base with cover and selling it under the trade-name of Brush Auto-Changer, can it be regarded that a process of manufacture has taken place. It was held that mere placing of a ready-to-use article on a wooden base, with or without a cover, with a view to make it more saleable does not amount to process of manufacture within the meaning of Section 2(f). Bata (India) Limited merely says that just because Bata places it brand-name on the footwear manufactured by another, Bata cannot be treated as manufacturer of the said goods. Bapalal and Company deals with Notification No. 119 of 1975 dealing with job-works and the exemption granted to job workers. The decision in Carona Sahu Company Limited is similar to the decision in Bata (India) Limited. We are unable to see any relevance these decisions have on the question at issue herein. We have already referred to the ratio of Cibatul. Food Specialities Limited was a case where it manufactured certain goods whereupon it affixed the brand-name of Nestle under an agreement with the latter and sold them to Nestle. The question was as to how to value the said goods. The Revenue contended that the value should be determined on the basis of wholesale price at which Nestle sold those goods. The plea was rejected by this Court holding that the wholesale price at which Food Specialities sold the said goods to Nestle should be basis for determining the value.
### Response:
1
### Explanation:
It is the insufficient appreciation of this basic aspect that has led both the Allahabad and Calcutta High Courts astray. But before we deal with their approach and reasoning, it would be appropriate to deal with the nature and character of the power of exemption under Rule 8 of the Central Excise Rules.We are of the opinion that while examining the challenge to an Exemption Notification under the Central Excise Act, the observations in the decisions aforesaid should be kept in mind. It should also be remembered that generally speaking the Exemption Notification and the terms and conditions prescribed therein represent the policies of the government evolved to sub-serve public interest and public revenue. A very heavy burden lies upon the person who challenges them on the ground of Article 14. Unless otherwise established, the Court must presume that the said amendment was found by the Central Government to be necessary for giving effect to its policy [underlying the notification] on the basis of the working of the said Notification and that such an amendment was found necessary to prevent persons from taking unfair advantage of the concession. In fact, in this case, the explanatory note appended to amending Notification says so in so many words. If necessary, the Court could have called upon the Central Government to establish the reasons behind the amendment. [It did not think it fit to do so.] It is equally necessary to bear in mind, as pointed out repeatedly by this Court, that in economic and taxation sphere, a large latitude should be allowed to the Legislature. The Courts should bear in mind the following observations made by a Constitution Bench of this Court in R. K. Garg v. Union of India 372 :"Another rule of equal importance is that laws relating to economic activities should be viewed with greater latitude than laws touching civil rights such as freedom of speech, religion etc. It has been said by no less a person than Holmes, J. that the legislature should be allowed some play in the joints, because it has to deal with complex problems which do not admit of solution through any doctrinaire or straight jacket formula and this is particularly true in case of legislation dealing with economic matters, where, having regard to the nature of the problems required to be deal with, greater play in the joints has to be allowed to the legislature. The Court should feel more inclined to give judicial deference to legislative judgment in the field of economic regulation than in other areas where fundamental human rights areCourt must always remember that legislation is directed to practical problems, that the economic mechanism is highly sensitive and complex, that many problems are singular and contingent, that laws are not abstract propositions and do not relate to abstract units and are not to be measured by abstract symmetry that exact wisdom and nice adaptation of remedy are not always possible and that judgment is largely a prophecy based on meagre and uninterpreted experience. Every legislation particularly in economic matters is essentially empiric and it is based on experimentation or what one may call trial and effort method and therefore it cannot provide for all possible situations or anticipate all possible abuses. There may be crudities and inequities in complicated experimental economic legislation but on that account alone it cannot be struck down as invalid.We are of the opinion that the judgment under appeal is erroneous for the reason that it has not borne in mind the aforementioned relevant consideration. It is equally in error in saying that the classification it brings about assuming that it does so - is not reasonable or that it has no nexus with the object underlying the Notification. Not only is Para 7 consistent with the object underlying the Notification, it indeed promotes it, as explained hereinbefore. We are constrained to say that the High Court has not bestowed the care and consideration which is expected of it before it strikes down such a Notification - or, for that matter, any statutory provision. For the very reason, the decision of the learned Single Judge of the Calcutta High Court in Banner & Co. v. Union of India must also be held to have been wrongly decided.Bush (India) Limited was concerned with the meaning and scope of the definition of "manufacture" in Section 2(f) and not with any Exemption Notification, much less with the Notifications concerned herein. The question there was whether merely by placing the Garrard Record Changer Decks on a wooden base with cover and selling it under the trade-name of Brush Auto-Changer, can it be regarded that a process of manufacture has taken place. It was held that mere placing of a ready-to-use article on a wooden base, with or without a cover, with a view to make it more saleable does not amount to process of manufacture within the meaning of Section 2(f). Bata (India) Limited merely says that just because Bata places it brand-name on the footwear manufactured by another, Bata cannot be treated as manufacturer of the said goods. Bapalal and Company deals with Notification No. 119 of 1975 dealing with job-works and the exemption granted to job workers. The decision in Carona Sahu Company Limited is similar to the decision in Bata (India) Limited. We are unable to see any relevance these decisions have on the question at issue herein. We have already referred to the ratio of Cibatul. Food Specialities Limited was a case where it manufactured certain goods whereupon it affixed the brand-name of Nestle under an agreement with the latter and sold them to Nestle. The question was as to how to value the said goods. The Revenue contended that the value should be determined on the basis of wholesale price at which Nestle sold those goods. The plea was rejected by this Court holding that the wholesale price at which Food Specialities sold the said goods to Nestle should be basis for determining the value.
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Parmeshwari Prasad Gupta Vs. The Union Of India | before his services were terminated and as only one months notice was given, he was entitled to 11 months pay in addition to what was awarded under this head.9. As regards the first point, it was said that the meeting of the Board of Directors dated December 16, 1953 was not properly convened for the reason that notice of the meeting was not given to all the Directors. The trial court found that one of the Directors, viz., Mr. B. P. Khaitan, was not given notice of the meeting of the Board of Directors held on December 16, 1953, and that he was not present at the meeting when the resolution to terminate the services of the appellant was passed.10. Now, it cannot be disputed that notice to all the Directors of a meeting of the Board of Directors was essential for the validity of any resolution passed at the meeting and that as, admittedly, no notice was given to Mr. Khaitan, one of the Directors of the Company, the resolution passed terminating the services of the appellant was invalid.11. Article 109 of the Articles of Association of the Company provides as follows :"109. When meeting to be convened.- A Director may at any time summon meeting of the Directors by serving every Director with at least 72 hours notice in writing through the officer of the Company authorized to issue such notice who shall arrange to convene the meeting".In Halsburys Laws of England, Vol. 9, p. 46, it has been stated that it is essential that notice of the meeting and of the business to be transacted should be given to all persons entitled to participate and that if a member whom it is reasonably possible to summon is not summoned, the meeting will not be duly convened, even though the omission is accidental or due to the fact that the member has informed the officer whose duty it is to serve notice that he need not serve notice on him. In Volume 6 of the same book at p. 315 Article 626, it is stated that a meeting of the directors is not duly convened unless due notice has been given to all the directors, and the business put through at a meeting not duly convened is invalid.12. To put it in other words, as the meeting of the Board of Directors held on December 16, 1953, was invalid, so the resolution to terminate the services of the plaintiff was inoperative.13. Then, the question for consideration is, what is the effect of the confirmation of the minutes of the meeting of the Board of Directors held on December 16, 1953 and the action of the Chairman in terminating the services of the appellant by his telegram and letter dated December 17, 1953, in pursuance to the invalid resolution of the Board of Directors to terminate his services, in the meeting of the Board of Directors held on December 23, 1953?14. The agenda of the meeting of the Board of Directors held on December 23, 1953 shows that one item of business was the confirmation of the minutes of the meeting of the Directors held on December 16, 1953. The confirmation of the minutes of the meeting of the Directors held on 16-12-1953, would not in any way show that the Board of Directors adopted the resolution to terminate the services of the appellant passed on December 16,1953. It only shows that the Board passed the minutes of the proceedings of the meeting held on December 16, 1953. But the resolution of the Board of Directors to confirm the action of the Chairman to terminate the services of the appellant by his telegram and letter dated December 17, 1953, would show that the Board ratified the action of the Chairman. Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorized, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953.The appellant was not entitled to the declaration prayed for by him and this trial court as well as the High Court was right in dismissing the claim.15. The second point for consideration is whether the appellant was entitled to 18 months notice before his services were terminated as claimed by him. The trial Court found that the rules of the Company, viz., exhibits D-3 and D-4 were binding on the appellant and that rule 6 of exhibit D-3 which provides for one months notice in case of termination of services of all employees would apply to the appellant as well. The High Court confirmed that finding. The rules expressly purport to bind all the employees of the respondent-Company. There is no reason to hold that the appellant was not an employee of the respondent-Company. Besides, the appellant himself has relied upon these rules for the purpose of computation of the amount due to him on account of bonus, provident fund, etc. In these circumstances it is idle to contend that the rules did not bind him. In this view, it is quite unnecessary to consider the question whether, apart from the rules, one months notice was reasonable in the circumstances of the case. | 0[ds]9. As regards the first point, it was said that the meeting of the Board of Directors dated December 16, 1953 was not properly convened for the reason that notice of the meeting was not given to all the Directors. The trial court found that one of the Directors, viz., Mr. B. P. Khaitan, was not given notice of the meeting of the Board of Directors held on December 16, 1953, and that he was not present at the meeting when the resolution to terminate the services of the appellant was passed.10. Now, it cannot be disputed that notice to all the Directors of a meeting of the Board of Directors was essential for the validity of any resolution passed at the meeting and that as, admittedly, no notice was given to Mr. Khaitan, one of the Directors of the Company, the resolution passed terminating the services of the appellant was invalid.The agenda of the meeting of the Board of Directors held on December 23, 1953 shows that one item of business was the confirmation of the minutes of the meeting of the Directors held on December 16, 1953. The confirmation of the minutes of the meeting of the Directors held on 16-12-1953, would not in any way show that the Board of Directors adopted the resolution to terminate the services of the appellant passed on December 16,1953. It only shows that the Board passed the minutes of the proceedings of the meeting held on December 16, 1953. But the resolution of the Board of Directors to confirm the action of the Chairman to terminate the services of the appellant by his telegram and letter dated December 17, 1953, would show that the Board ratified the action of the Chairman. Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorized, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953.The appellant was not entitled to the declaration prayed for by him and this trial court as well as the High Court was right in dismissing the claim.15. The second point for consideration is whetherthe appellant was entitled to 18 months notice before his services were terminated as claimed byhim. The trial Court found that the rules of the Company, viz., exhibits D-3 and D-4 were binding on the appellant and that rule 6 of exhibit D-3 which provides for one months notice in case of termination of services of all employees would apply to the appellant as well. The High Court confirmed that finding. The rules expressly purport to bind all the employees of the respondent-Company. There is no reason to hold that the appellant was not an employee of the respondent-Company. Besides, the appellant himself has relied upon these rules for the purpose of computation of the amount due to him on account of bonus, provident fund, etc. In these circumstances it is idle to contend that the rules did not bind him. | 0 | 2,033 | 685 | ### 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:
before his services were terminated and as only one months notice was given, he was entitled to 11 months pay in addition to what was awarded under this head.9. As regards the first point, it was said that the meeting of the Board of Directors dated December 16, 1953 was not properly convened for the reason that notice of the meeting was not given to all the Directors. The trial court found that one of the Directors, viz., Mr. B. P. Khaitan, was not given notice of the meeting of the Board of Directors held on December 16, 1953, and that he was not present at the meeting when the resolution to terminate the services of the appellant was passed.10. Now, it cannot be disputed that notice to all the Directors of a meeting of the Board of Directors was essential for the validity of any resolution passed at the meeting and that as, admittedly, no notice was given to Mr. Khaitan, one of the Directors of the Company, the resolution passed terminating the services of the appellant was invalid.11. Article 109 of the Articles of Association of the Company provides as follows :"109. When meeting to be convened.- A Director may at any time summon meeting of the Directors by serving every Director with at least 72 hours notice in writing through the officer of the Company authorized to issue such notice who shall arrange to convene the meeting".In Halsburys Laws of England, Vol. 9, p. 46, it has been stated that it is essential that notice of the meeting and of the business to be transacted should be given to all persons entitled to participate and that if a member whom it is reasonably possible to summon is not summoned, the meeting will not be duly convened, even though the omission is accidental or due to the fact that the member has informed the officer whose duty it is to serve notice that he need not serve notice on him. In Volume 6 of the same book at p. 315 Article 626, it is stated that a meeting of the directors is not duly convened unless due notice has been given to all the directors, and the business put through at a meeting not duly convened is invalid.12. To put it in other words, as the meeting of the Board of Directors held on December 16, 1953, was invalid, so the resolution to terminate the services of the plaintiff was inoperative.13. Then, the question for consideration is, what is the effect of the confirmation of the minutes of the meeting of the Board of Directors held on December 16, 1953 and the action of the Chairman in terminating the services of the appellant by his telegram and letter dated December 17, 1953, in pursuance to the invalid resolution of the Board of Directors to terminate his services, in the meeting of the Board of Directors held on December 23, 1953?14. The agenda of the meeting of the Board of Directors held on December 23, 1953 shows that one item of business was the confirmation of the minutes of the meeting of the Directors held on December 16, 1953. The confirmation of the minutes of the meeting of the Directors held on 16-12-1953, would not in any way show that the Board of Directors adopted the resolution to terminate the services of the appellant passed on December 16,1953. It only shows that the Board passed the minutes of the proceedings of the meeting held on December 16, 1953. But the resolution of the Board of Directors to confirm the action of the Chairman to terminate the services of the appellant by his telegram and letter dated December 17, 1953, would show that the Board ratified the action of the Chairman. Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorized, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953.The appellant was not entitled to the declaration prayed for by him and this trial court as well as the High Court was right in dismissing the claim.15. The second point for consideration is whether the appellant was entitled to 18 months notice before his services were terminated as claimed by him. The trial Court found that the rules of the Company, viz., exhibits D-3 and D-4 were binding on the appellant and that rule 6 of exhibit D-3 which provides for one months notice in case of termination of services of all employees would apply to the appellant as well. The High Court confirmed that finding. The rules expressly purport to bind all the employees of the respondent-Company. There is no reason to hold that the appellant was not an employee of the respondent-Company. Besides, the appellant himself has relied upon these rules for the purpose of computation of the amount due to him on account of bonus, provident fund, etc. In these circumstances it is idle to contend that the rules did not bind him. In this view, it is quite unnecessary to consider the question whether, apart from the rules, one months notice was reasonable in the circumstances of the case.
### Response:
0
### Explanation:
9. As regards the first point, it was said that the meeting of the Board of Directors dated December 16, 1953 was not properly convened for the reason that notice of the meeting was not given to all the Directors. The trial court found that one of the Directors, viz., Mr. B. P. Khaitan, was not given notice of the meeting of the Board of Directors held on December 16, 1953, and that he was not present at the meeting when the resolution to terminate the services of the appellant was passed.10. Now, it cannot be disputed that notice to all the Directors of a meeting of the Board of Directors was essential for the validity of any resolution passed at the meeting and that as, admittedly, no notice was given to Mr. Khaitan, one of the Directors of the Company, the resolution passed terminating the services of the appellant was invalid.The agenda of the meeting of the Board of Directors held on December 23, 1953 shows that one item of business was the confirmation of the minutes of the meeting of the Directors held on December 16, 1953. The confirmation of the minutes of the meeting of the Directors held on 16-12-1953, would not in any way show that the Board of Directors adopted the resolution to terminate the services of the appellant passed on December 16,1953. It only shows that the Board passed the minutes of the proceedings of the meeting held on December 16, 1953. But the resolution of the Board of Directors to confirm the action of the Chairman to terminate the services of the appellant by his telegram and letter dated December 17, 1953, would show that the Board ratified the action of the Chairman. Even if it be assumed that the telegram and the letter terminating the services of the appellant by the Chairman was in pursuance to the invalid resolution of the Board of Directors passed on December 16, 1953 to terminate his services, it would not follow that the action of the Chairman could not be ratified in a regularly convened meeting of the Board of Directors. The point is that even assuming that the Chairman was not legally authorised to terminate the services of the appellant, he was acting on behalf of the Company in doing so, because, he purported to act in pursuance of the invalid resolution. Therefore, it was open to a regularly constituted meeting of the Board of Directors to ratify that action which, though unauthorized, was done on behalf of the Company. Ratification would always relate back to the date of the act ratified and so it must be held that the services of the appellant were validly terminated on December 17, 1953.The appellant was not entitled to the declaration prayed for by him and this trial court as well as the High Court was right in dismissing the claim.15. The second point for consideration is whetherthe appellant was entitled to 18 months notice before his services were terminated as claimed byhim. The trial Court found that the rules of the Company, viz., exhibits D-3 and D-4 were binding on the appellant and that rule 6 of exhibit D-3 which provides for one months notice in case of termination of services of all employees would apply to the appellant as well. The High Court confirmed that finding. The rules expressly purport to bind all the employees of the respondent-Company. There is no reason to hold that the appellant was not an employee of the respondent-Company. Besides, the appellant himself has relied upon these rules for the purpose of computation of the amount due to him on account of bonus, provident fund, etc. In these circumstances it is idle to contend that the rules did not bind him.
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Latabai Raosaheb Deshmukh Vs. The State of Maharashtra and Others | State was to be purchased from that Insurance Company. For the death, the compensation of Rs. One lakh was to be given by Insurance Company and there was provision to pay compensation in respect of injuries sustained also. The premium was to be paid by the State Government and the scheme was implemented in the year 2004.4) G.R. dated 5.1.2005 shows that the dependents of the deceased farmers were expected to supply the documents only in accordance with the G.R. and annexure for that was given to this G.R. It was the record like age proof to show that the deceased was from age group of 15 to 70 years, he was having agricultural land and proof for that like 7/12 extract and 8A extract was to be given, the certificate issued by Talathi to show that the claimant was the successor of the deceased and some record for verification of the age was also to be produced. In the G.R. of 2005, it was made clear that no compensation would be payable if it was suicide, if the accident had taken place when the farmer was under the influence of intoxicant, when it was natural death and when it was in respect of the injury already sustained. Another annexure of this G.R. shows that when there was death in road accident, the record like copy of F.I.R., copy of spot panchanama, copy of report prepared by police and copy of P.M. report was to be produced.5) In the past, the aforesaid scheme was known as Personal Insurance Scheme and in the year 2009 the name was changed to make it as Shetkari Janta Apghat Vima Yojna. In the G.R. dated 4.12.2009 the things which need to be ascertained by the Insurance Company are mentioned. It is made clear that only the farmer who was responsible for the accident is excluded and if death takes place, in that case, his successors are not entitled to get the compensation. One more clause is there, to the effect that if the farmer who had met with motor vehicle accident was himself driving or riding the vehicle and he was not holding valid driving licence, then he (or his dependents) may not be entitled to get the compensation as it is necessary to produce the valid driving licence. However, in annexure some documents, which were mentioned in previous G.R. are mentioned and they need to be produced by the farmers or his successors. There is one more G.R. dated 24.8.2008, but in that G.R. more particulars are given like the persons who become entitled to get the compensation but other requirements are similar.6) The learned counsel for Insurance Company submitted that in the present matter, the P.M. report showed that alcohol was detected in the intestine and so, no compensation can be given as per the aforesaid scheme. The aforesaid scheme does not show that the detection of intoxicant, alcohol in the intestine is sufficient to reject the claim. The requirement is that the deceased was under influence of liquor, intoxicant. Thus, the claim could not have been rejected on this ground. Further, there was only smell of alcohol and on the basis of this circumstance, the claim could not have been rejected. No further investigation like sending viscera to C.A. Office was not done.7) When the Insurance Company contends that the deceased was not holding valid licence, the burden is on the Insurance Company to prove that there was such breach of conditions of policy. The aforesaid scheme does not show that it was necessary for the successors of the deceased farmer to produce the driving licence. On what basis the Insurance Company has contended that the driving licence had expired and it was not got renewed at the relevant time is not stated. As the burden was on the Insurance Company, only by contending that there was no driving lincece at the relevant time, the claim could not have been rejected. There is one more circumstance which shows that the claim could not have been rejected on any of the above grounds in the present matter. The submissions made show that the deceased was riding two wheeler, but unknown vehicle gave dash to his vehicle and due to that accident took place. There is copy of F.I.R. dated 30.11.2014 and there is a copy of spot panchanama dated 28.11.2014. The accident took place on 28.11.2014 at about 9.15 p.m. and it shows that probably four wheeler had given dash to motorcycle and then the deceased was run over by the four wheeler. This report was given by a relative of the deceased and spot panchanama is consistent with that contention. The motorcycle of deceased was present on the correct side of the road and there was nothing to infer that accident had taken place due to the fault of the deceased. Even if the agreement between the State and Insurance Company is considered, there is nothing in the agreement to show that the claim could have been rejected by the Insurance Company. In view of these circumstances, this Court holds that the Insurance Company has committed serious mistake in rejecting the claim of the petitioner. In view of the scheme prepared for the benefit of the farmers which can be seen in the G.R. of 2009, its binding nature on the Insurance Company, this Court holds that not only compensation needs to be given to the petitioner, but interest also needs to be paid as provided in G.R. of 2009.8) The accident took place on 28.11.2014 and the claim was submitted in time, though the Insurance Company has contended that the proposal was received by it on 9.3.2015. The decision is expected within two months from the date of receipt of the proposal and if the decision is not taken, then for first three months after completion of two months, interest is payable at the rate of 9% p.a. and thereafter the interest is payable at the rate of 15% p.a. | 1[ds]The aforesaid scheme does not show that the detection of intoxicant, alcohol in the intestine is sufficient to reject the claim. The requirement is that the deceased was under influence of liquor, intoxicant. Thus, the claim could not have been rejected on this ground. Further, there was only smell of alcohol and on the basis of this circumstance, the claim could not have been rejected. No further investigation like sending viscera to C.A. Office was notaforesaid scheme does not show that it was necessary for the successors of the deceased farmer to produce the driving licence. On what basis the Insurance Company has contended that the driving licence had expired and it was not got renewed at the relevant time is not stated. As the burden was on the Insurance Company, only by contending that there was no driving lincece at the relevant time, the claim could not have been rejected. There is one more circumstance which shows that the claim could not have been rejected on any of the above grounds in the present matter. The submissions made show that the deceased was riding two wheeler, but unknown vehicle gave dash to his vehicle and due to that accident took place. There is copy of F.I.R. dated 30.11.2014 and there is a copy of spot panchanama dated 28.11.2014. The accident took place on 28.11.2014 at about 9.15 p.m. and it shows that probably four wheeler had given dash to motorcycle and then the deceased was run over by the four wheeler. This report was given by a relative of the deceased and spot panchanama is consistent with that contention. The motorcycle of deceased was present on the correct side of the road and there was nothing to infer that accident had taken place due to the fault of the deceased. Even if the agreement between the State and Insurance Company is considered, there is nothing in the agreement to show that the claim could have been rejected by the Insurance Company. In view of these circumstances, this Court holds that the Insurance Company has committed serious mistake in rejecting the claim of the petitioner. In view of the scheme prepared for the benefit of the farmers which can be seen in the G.R. of 2009, its binding nature on the Insurance Company, this Court holds that not only compensation needs to be given to the petitioner, but interest also needs to be paid as provided in G.R. ofThe accident took place on 28.11.2014 and the claim was submitted in time, though the Insurance Company has contended that the proposal was received by it on 9.3.2015. The decision is expected within two months from the date of receipt of the proposal and if the decision is not taken, then for first three months after completion of two months, interest is payable at the rate of 9% p.a. and thereafter the interest is payable at the rate of 15% p.a. | 1 | 1,361 | 533 | ### 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:
State was to be purchased from that Insurance Company. For the death, the compensation of Rs. One lakh was to be given by Insurance Company and there was provision to pay compensation in respect of injuries sustained also. The premium was to be paid by the State Government and the scheme was implemented in the year 2004.4) G.R. dated 5.1.2005 shows that the dependents of the deceased farmers were expected to supply the documents only in accordance with the G.R. and annexure for that was given to this G.R. It was the record like age proof to show that the deceased was from age group of 15 to 70 years, he was having agricultural land and proof for that like 7/12 extract and 8A extract was to be given, the certificate issued by Talathi to show that the claimant was the successor of the deceased and some record for verification of the age was also to be produced. In the G.R. of 2005, it was made clear that no compensation would be payable if it was suicide, if the accident had taken place when the farmer was under the influence of intoxicant, when it was natural death and when it was in respect of the injury already sustained. Another annexure of this G.R. shows that when there was death in road accident, the record like copy of F.I.R., copy of spot panchanama, copy of report prepared by police and copy of P.M. report was to be produced.5) In the past, the aforesaid scheme was known as Personal Insurance Scheme and in the year 2009 the name was changed to make it as Shetkari Janta Apghat Vima Yojna. In the G.R. dated 4.12.2009 the things which need to be ascertained by the Insurance Company are mentioned. It is made clear that only the farmer who was responsible for the accident is excluded and if death takes place, in that case, his successors are not entitled to get the compensation. One more clause is there, to the effect that if the farmer who had met with motor vehicle accident was himself driving or riding the vehicle and he was not holding valid driving licence, then he (or his dependents) may not be entitled to get the compensation as it is necessary to produce the valid driving licence. However, in annexure some documents, which were mentioned in previous G.R. are mentioned and they need to be produced by the farmers or his successors. There is one more G.R. dated 24.8.2008, but in that G.R. more particulars are given like the persons who become entitled to get the compensation but other requirements are similar.6) The learned counsel for Insurance Company submitted that in the present matter, the P.M. report showed that alcohol was detected in the intestine and so, no compensation can be given as per the aforesaid scheme. The aforesaid scheme does not show that the detection of intoxicant, alcohol in the intestine is sufficient to reject the claim. The requirement is that the deceased was under influence of liquor, intoxicant. Thus, the claim could not have been rejected on this ground. Further, there was only smell of alcohol and on the basis of this circumstance, the claim could not have been rejected. No further investigation like sending viscera to C.A. Office was not done.7) When the Insurance Company contends that the deceased was not holding valid licence, the burden is on the Insurance Company to prove that there was such breach of conditions of policy. The aforesaid scheme does not show that it was necessary for the successors of the deceased farmer to produce the driving licence. On what basis the Insurance Company has contended that the driving licence had expired and it was not got renewed at the relevant time is not stated. As the burden was on the Insurance Company, only by contending that there was no driving lincece at the relevant time, the claim could not have been rejected. There is one more circumstance which shows that the claim could not have been rejected on any of the above grounds in the present matter. The submissions made show that the deceased was riding two wheeler, but unknown vehicle gave dash to his vehicle and due to that accident took place. There is copy of F.I.R. dated 30.11.2014 and there is a copy of spot panchanama dated 28.11.2014. The accident took place on 28.11.2014 at about 9.15 p.m. and it shows that probably four wheeler had given dash to motorcycle and then the deceased was run over by the four wheeler. This report was given by a relative of the deceased and spot panchanama is consistent with that contention. The motorcycle of deceased was present on the correct side of the road and there was nothing to infer that accident had taken place due to the fault of the deceased. Even if the agreement between the State and Insurance Company is considered, there is nothing in the agreement to show that the claim could have been rejected by the Insurance Company. In view of these circumstances, this Court holds that the Insurance Company has committed serious mistake in rejecting the claim of the petitioner. In view of the scheme prepared for the benefit of the farmers which can be seen in the G.R. of 2009, its binding nature on the Insurance Company, this Court holds that not only compensation needs to be given to the petitioner, but interest also needs to be paid as provided in G.R. of 2009.8) The accident took place on 28.11.2014 and the claim was submitted in time, though the Insurance Company has contended that the proposal was received by it on 9.3.2015. The decision is expected within two months from the date of receipt of the proposal and if the decision is not taken, then for first three months after completion of two months, interest is payable at the rate of 9% p.a. and thereafter the interest is payable at the rate of 15% p.a.
### Response:
1
### Explanation:
The aforesaid scheme does not show that the detection of intoxicant, alcohol in the intestine is sufficient to reject the claim. The requirement is that the deceased was under influence of liquor, intoxicant. Thus, the claim could not have been rejected on this ground. Further, there was only smell of alcohol and on the basis of this circumstance, the claim could not have been rejected. No further investigation like sending viscera to C.A. Office was notaforesaid scheme does not show that it was necessary for the successors of the deceased farmer to produce the driving licence. On what basis the Insurance Company has contended that the driving licence had expired and it was not got renewed at the relevant time is not stated. As the burden was on the Insurance Company, only by contending that there was no driving lincece at the relevant time, the claim could not have been rejected. There is one more circumstance which shows that the claim could not have been rejected on any of the above grounds in the present matter. The submissions made show that the deceased was riding two wheeler, but unknown vehicle gave dash to his vehicle and due to that accident took place. There is copy of F.I.R. dated 30.11.2014 and there is a copy of spot panchanama dated 28.11.2014. The accident took place on 28.11.2014 at about 9.15 p.m. and it shows that probably four wheeler had given dash to motorcycle and then the deceased was run over by the four wheeler. This report was given by a relative of the deceased and spot panchanama is consistent with that contention. The motorcycle of deceased was present on the correct side of the road and there was nothing to infer that accident had taken place due to the fault of the deceased. Even if the agreement between the State and Insurance Company is considered, there is nothing in the agreement to show that the claim could have been rejected by the Insurance Company. In view of these circumstances, this Court holds that the Insurance Company has committed serious mistake in rejecting the claim of the petitioner. In view of the scheme prepared for the benefit of the farmers which can be seen in the G.R. of 2009, its binding nature on the Insurance Company, this Court holds that not only compensation needs to be given to the petitioner, but interest also needs to be paid as provided in G.R. ofThe accident took place on 28.11.2014 and the claim was submitted in time, though the Insurance Company has contended that the proposal was received by it on 9.3.2015. The decision is expected within two months from the date of receipt of the proposal and if the decision is not taken, then for first three months after completion of two months, interest is payable at the rate of 9% p.a. and thereafter the interest is payable at the rate of 15% p.a.
|
SUSHILABEN INDRAVADAN GANDHI & ANR. Vs. THE NEW INDIA ASSURANCE COMPANY LIMITED & ORS. | Investment Corpn. of Orissa Ltd. v. New India Assurance Co. Ltd. (2016) 15 SCC 315 , this Court referred to the contra proferentum rule as follows: 10. We proceed to deal with the submission made by the counsel for the appellant regarding the rule of contra proferentem. The Common Law rule of construction verba chartarum fortius accipiuntur contra proferentem means that ambiguity in the wording of the policy is to be resolved against the party who prepared it. MacGillivray on Insurance Law [ Legh-Jones, Longmore et al (Eds.), MacGillivray on Insurance Law (9th Edn., Sweet and Maxwell, London 1997) at p. 280.] deals with the rule of contra proferentem as follows: The contra proferentem rule of construction arises only where there is a wording employed by those drafting the clause which leaves the court unable to decide by ordinary principles of interpretation which of two meanings is the right one. One must not use the rule to create the ambiguity — one must find the ambiguity first. The words should receive their ordinary and natural meaning unless that is displaced by a real ambiguity either appearing on the face of the policy or, possibly, by extrinsic evidence of surrounding circumstances. (footnotes omitted) 11.Colinvauxs Law of Insurance [ Robert and Merkin (Eds.), Colinvauxs Law of Insurance (6th Edn., 1990) at p. 42.] propounds the contra proferentem rule as under: Quite apart from contradictory clauses in policies, ambiguities are common in them and it is often very uncertain what the parties to them mean. In such cases the rule is that the policy, being drafted in language chosen by the insurers, must be taken most strongly against them. It is construed contra proferentem, against those who offer it. In a doubtful case the turn of the scale ought to be given against the speaker, because he has not clearly and fully expressed himself. Nothing is easier than for the insurers to express themselves in plain terms. The assured cannot put his own meaning upon a policy, but, where it is ambiguous, it is to be construed in the sense in which he might reasonably have understood it. If the insurers wish to escape liability under given circumstances, they must use words admitting of no possible doubt. But a clause is only to be contra proferentem in cases of real ambiguity. One must not use the rule to create an ambiguity. One must find the ambiguity first. Even where a clause by itself is ambiguous if, by looking at the whole policy, its meaning becomes clear, there is no room for the application of the doctrine. So also where if one meaning is given to a clause, the rest of the policy becomes clear, the policy should be construed accordingly.(footnotes omitted) 34. The High Court held in the impugned judgment that as additional premium had been paid so as to attract the applicability of IMT-5, in any case the Insurance Company would be liable under the policy to pay compensation in the case of death to unnamed passengers other than the insured and his paid driver or cleaner, Dr. Alpesh Gandhi being one such unnamed passenger. This was done on the footing that the exception to IMT-5 was that a person in the employ of the insured coming within the scope of the Workmens Compensation Act, 1923 is excluded from the cover, but that as Dr. Alpesh Gandhi did not come within the scope of the Workmens Compensation Act, compensation payable due to his death in a motor accident would be covered by IMT-5. We see no reason to disturb this finding. The inapplicability of endorsement IMT-16, as additional premium had not been paid would, therefore, make no difference on the facts of this case. Section-II, entitled liability to third parties in the insurance policy dated 17.04.1997 set out hereinabove exempts the insurance company from the death of a person carried in a motor car where such death arises out of and in the course of the employment of such person by the insurer. The question that arises before us is as to whether the expression employment is to be construed widely or narrowly – if widely construed, a person may be said to employed by an employer even if he is not a regular employee of the employer. However, the wider meaning that has been canvassed for by the insurance company cannot possibly be given, given the language immediately before, namely, in the course of, thereby indicating that the employment can only be that of a person regularly employed by the employer. Even otherwise, assuming that there is an ambiguity or doubt, the contra proferentum rule referred to hereinabove, must be applied, thus making it clear that such employment refers only to regular employees of the Institute, which, as we have seen hereinabove, Dr. Alpesh Gandhi was certainly not. 35. The Appellants placed reliance on an Order of this Court dated 05.03.2019, which reads as follows: 1. Leave granted. 2. The limited question to be examined arising from the impugned order is the effect of the direction that the insurance company is liable to pay only a sum of Rs.25,000/- and the balance amount may be recovered from the respondent No.2. 3. The appellant(s)/claimant(s) seeks to contend that it is impossible for the appellants to enforce their remedy specially giving their economic status. 4. On the conspectus of the matter and on hearing learned counsel for the parties, we consider it appropriate to direct that full amount should be paid by respondent No.1-Insurance Company and the amount beyond the liability to be paid by respondent No.1 may be recovered by the Insurance company from respondent No.2. 5. The appeal accordingly stands disposed of. Parties to bear their own costs. This Order seems to have been passed under Article 142 of the Constitution on the facts of that case, without reference to any case law. In the view that we have taken, it is unnecessary for us to place reliance on such Order. | 1[ds]24. A conspectus of all the aforesaid judgments would show that in a society which has moved away from being a simple agrarian society to a complex modern society in the computer age, the earlier simple test of control, whether or not actually exercised, has now yielded more complex tests in order to decide complex matters which would have factors both for and against the contract being a contract of service as against a contract for service. The early control of the employer test in the sense of controlling not just the work that is given but the manner in which it is to be done obviously breaks down when it comes to professionals who may be employed25. Given the fact that this balancing process may often not yield a clear result in hybrid situations, the context in which a finding is to be made assumes great importance. Thus, if the context is one of a beneficial legislation being applied to weaker sections of society, the balance tilts in favour of declaring the contract to be one of service, as was done in Dharangadhara (supra), Birdhichand (supra), D.C.Dewan (supra), Silver Jubilee (supra), Hussainbhai (supra), Shining Tailors (supra), P.M. Patel (supra), and Indian Banks (supra). On the other hand, where the context is that of legislation other than beneficial legislation or only in the realm of contract, and the context of that legislation or contract would point in the direction of the relationship being a contract for service then, other things being equal, the context may then tilt the balance in favour of the contract being construed to be one which is for service26. Looked at in this light, let us now examine the agreement between Dr. Alpesh Gandhi and the Respondent No. 3. The factors which would lead to the contract being one for service may be enumerated as follows:(i) The heading of the contract itself states that it is a contract for service(ii) The designation of Dr. Gandhi is an Honorary Ophthalmic Surgeon(iii) INR 4000 per month is declared to be honorarium as opposed to salary(iv) In addition to INR 4000 per month, Dr. Gandhi is paid a percentage of the earnings of the Respondent No. 3 from out of the OPD, Operation Fee component of Hospitalization Bills, and Room Visiting Fees(v) The arbitration clause which speaks of disputes arising in the course of the tenure of this contract will be referred to the Managing Committee of the Institute, the decision of the Managing Committee being final, is also a clause which is unusual in a pure master-servant relationship(vi) The fact that the appointment is contractual – for 3 years – and extendable only by mutual consent, is another pointer to the fact that the contract is for service, which is tenure based(vii) The fact that termination of the contract can be by notice on either side would again show that the parties are dealing with each other more as equals than as master-servant(viii) Clause XI of the agreement also makes it clear that the earlier appointment that was made of Dr. Gandhi would cease the moment this contract comes into existence, Dr. Gandhi no longer remaining as a regular employee of the Institute27. As against the aforesaid factors which would point to the contract the contract being a contract for service, the following factors would point in the opposite direction:(i) The employment is full-time. Dr. Gandhi can do no other work, and apart from the seven types of work that Dr. Gandhi is to perform under Clause IV, any other assignment that may get created in the course of time may also be assigned to him at the employers discretion(ii) Dr. Gandhi is to work on all days except weekly offs and holidays that are given to him by the employer. However, what is important is that though governed by the leave rules of the Institute as in vogue from time to time, Dr. Gandhi will not be entitled to any financial benefit of any kind as may be applicable to other regular employees of the Institute under Clause V(iii) Dr. Gandhi will be governed by the Conduct Rules of the Institute as invoked from time to time and as applicable to regular employees of the Institute(iv) That in the event of a proven case of indiscipline or breach of trust, the Institute reserves a right to terminate the contract at any time without giving any compensation whatsoever28. If the aforesaid factors are weighed in the scales, it is clear that the factors which make the contract one for service outweigh the factors which would point in the opposite direction. First and foremost, the intention of the parties is to be gathered from the terms of the contract. The terms of the contract make it clear that the contract is one for service, and that with effect from the date on which the contract begins, Dr. Gandhi shall no longer remain as a regular employee of the Institute, making it clear that his services are now no longer as a regular employee but as an independent professional. Secondly, the remuneration is described as honorarium, and consistent with the position that Dr. Gandhi is an independent professional working in the Institute in his own right, he gets a share of the spoils as has been pointed out hereinabove. Thirdly, he enters into the agreement on equal terms as the agreement is for three years, extendable only by mutual consent of both the parties. Fourthly, his services cannot be terminated in the usual manner of the other regular employees of the Institute but are terminable on either side by notice. The fact that Dr. Gandhi will devote full-time attention to the Institute is the obverse side of piece-rated work which, as has been held in some of the judgments hereinabove, can yet amount to contracts of service, being a neutral factor. Likewise, the fact that Dr. Gandhi must devote his entire attention to the Institute would not necessarily lead to the conclusion that de hors all other factors the contract is one of service. Equally important is the fact that it is necessary to state Dr. Gandhi will be governed by the Conduct Rules and by the Leave Rules of the Institute, but by no other Rules. And even though the Leave Rules apply to Dr. Gandhi, since he is not a regular employee, he is not entitled to any financial benefit as might be applicable to other regular employees. Equally, arbitration of disputes between Dr. Gandhi and the Institute being referred to the Managing Committee of the Institute would show that they have entered into the contract not as master and servant but as employer and independent professional. A conspectus of all the above would certainly lead to the conclusion, applying the economic reality test, that the contract entered into between the parties is one between an Institute and an independent professional29. Even otherwise, it is well-settled that exemption of liability clauses in insurance contracts are to be construed in the case of ambiguity contra proferentum34. The High Court held in the impugned judgment that as additional premium had been paid so as to attract the applicability of IMT-5, in any case the Insurance Company would be liable under the policy to pay compensation in the case of death to unnamed passengers other than the insured and his paid driver or cleaner, Dr. Alpesh Gandhi being one such unnamed passenger. This was done on the footing that the exception to IMT-5 was that a person in the employ of the insured coming within the scope of the Workmens Compensation Act, 1923 is excluded from the cover, but that as Dr. Alpesh Gandhi did not come within the scope of the Workmens Compensation Act, compensation payable due to his death in a motor accident would be covered by IMT-5. We see no reason to disturb this finding. The inapplicability of endorsement IMT-16, as additional premium had not been paid would, therefore, make no difference on the facts of this case. Section-II, entitled liability to third parties in the insurance policy dated 17.04.1997 set out hereinabove exempts the insurance company from the death of a person carried in a motor car where such death arises out of and in the course of the employment of such person by the insurer. The question that arises before us is as to whether the expression employment is to be construed widely or narrowly – if widely construed, a person may be said to employed by an employer even if he is not a regular employee of the employer. However, the wider meaning that has been canvassed for by the insurance company cannot possibly be given, given the language immediately before, namely, in the course of, thereby indicating that the employment can only be that of a person regularly employed by the employer. Even otherwise, assuming that there is an ambiguity or doubt, the contra proferentum rule referred to hereinabove, must be applied, thus making it clear that such employment refers only to regular employees of the Institute, which, as we have seen hereinabove, Dr. Alpesh Gandhi was certainly notThis Order seems to have been passed under Article 142 of the Constitution on the facts of that case, without reference to any case law. In the view that we have taken, it is unnecessary for us to place reliance on such Order. | 1 | 15,417 | 1,741 | ### 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:
Investment Corpn. of Orissa Ltd. v. New India Assurance Co. Ltd. (2016) 15 SCC 315 , this Court referred to the contra proferentum rule as follows: 10. We proceed to deal with the submission made by the counsel for the appellant regarding the rule of contra proferentem. The Common Law rule of construction verba chartarum fortius accipiuntur contra proferentem means that ambiguity in the wording of the policy is to be resolved against the party who prepared it. MacGillivray on Insurance Law [ Legh-Jones, Longmore et al (Eds.), MacGillivray on Insurance Law (9th Edn., Sweet and Maxwell, London 1997) at p. 280.] deals with the rule of contra proferentem as follows: The contra proferentem rule of construction arises only where there is a wording employed by those drafting the clause which leaves the court unable to decide by ordinary principles of interpretation which of two meanings is the right one. One must not use the rule to create the ambiguity — one must find the ambiguity first. The words should receive their ordinary and natural meaning unless that is displaced by a real ambiguity either appearing on the face of the policy or, possibly, by extrinsic evidence of surrounding circumstances. (footnotes omitted) 11.Colinvauxs Law of Insurance [ Robert and Merkin (Eds.), Colinvauxs Law of Insurance (6th Edn., 1990) at p. 42.] propounds the contra proferentem rule as under: Quite apart from contradictory clauses in policies, ambiguities are common in them and it is often very uncertain what the parties to them mean. In such cases the rule is that the policy, being drafted in language chosen by the insurers, must be taken most strongly against them. It is construed contra proferentem, against those who offer it. In a doubtful case the turn of the scale ought to be given against the speaker, because he has not clearly and fully expressed himself. Nothing is easier than for the insurers to express themselves in plain terms. The assured cannot put his own meaning upon a policy, but, where it is ambiguous, it is to be construed in the sense in which he might reasonably have understood it. If the insurers wish to escape liability under given circumstances, they must use words admitting of no possible doubt. But a clause is only to be contra proferentem in cases of real ambiguity. One must not use the rule to create an ambiguity. One must find the ambiguity first. Even where a clause by itself is ambiguous if, by looking at the whole policy, its meaning becomes clear, there is no room for the application of the doctrine. So also where if one meaning is given to a clause, the rest of the policy becomes clear, the policy should be construed accordingly.(footnotes omitted) 34. The High Court held in the impugned judgment that as additional premium had been paid so as to attract the applicability of IMT-5, in any case the Insurance Company would be liable under the policy to pay compensation in the case of death to unnamed passengers other than the insured and his paid driver or cleaner, Dr. Alpesh Gandhi being one such unnamed passenger. This was done on the footing that the exception to IMT-5 was that a person in the employ of the insured coming within the scope of the Workmens Compensation Act, 1923 is excluded from the cover, but that as Dr. Alpesh Gandhi did not come within the scope of the Workmens Compensation Act, compensation payable due to his death in a motor accident would be covered by IMT-5. We see no reason to disturb this finding. The inapplicability of endorsement IMT-16, as additional premium had not been paid would, therefore, make no difference on the facts of this case. Section-II, entitled liability to third parties in the insurance policy dated 17.04.1997 set out hereinabove exempts the insurance company from the death of a person carried in a motor car where such death arises out of and in the course of the employment of such person by the insurer. The question that arises before us is as to whether the expression employment is to be construed widely or narrowly – if widely construed, a person may be said to employed by an employer even if he is not a regular employee of the employer. However, the wider meaning that has been canvassed for by the insurance company cannot possibly be given, given the language immediately before, namely, in the course of, thereby indicating that the employment can only be that of a person regularly employed by the employer. Even otherwise, assuming that there is an ambiguity or doubt, the contra proferentum rule referred to hereinabove, must be applied, thus making it clear that such employment refers only to regular employees of the Institute, which, as we have seen hereinabove, Dr. Alpesh Gandhi was certainly not. 35. The Appellants placed reliance on an Order of this Court dated 05.03.2019, which reads as follows: 1. Leave granted. 2. The limited question to be examined arising from the impugned order is the effect of the direction that the insurance company is liable to pay only a sum of Rs.25,000/- and the balance amount may be recovered from the respondent No.2. 3. The appellant(s)/claimant(s) seeks to contend that it is impossible for the appellants to enforce their remedy specially giving their economic status. 4. On the conspectus of the matter and on hearing learned counsel for the parties, we consider it appropriate to direct that full amount should be paid by respondent No.1-Insurance Company and the amount beyond the liability to be paid by respondent No.1 may be recovered by the Insurance company from respondent No.2. 5. The appeal accordingly stands disposed of. Parties to bear their own costs. This Order seems to have been passed under Article 142 of the Constitution on the facts of that case, without reference to any case law. In the view that we have taken, it is unnecessary for us to place reliance on such Order.
### Response:
1
### Explanation:
Gandhi can do no other work, and apart from the seven types of work that Dr. Gandhi is to perform under Clause IV, any other assignment that may get created in the course of time may also be assigned to him at the employers discretion(ii) Dr. Gandhi is to work on all days except weekly offs and holidays that are given to him by the employer. However, what is important is that though governed by the leave rules of the Institute as in vogue from time to time, Dr. Gandhi will not be entitled to any financial benefit of any kind as may be applicable to other regular employees of the Institute under Clause V(iii) Dr. Gandhi will be governed by the Conduct Rules of the Institute as invoked from time to time and as applicable to regular employees of the Institute(iv) That in the event of a proven case of indiscipline or breach of trust, the Institute reserves a right to terminate the contract at any time without giving any compensation whatsoever28. If the aforesaid factors are weighed in the scales, it is clear that the factors which make the contract one for service outweigh the factors which would point in the opposite direction. First and foremost, the intention of the parties is to be gathered from the terms of the contract. The terms of the contract make it clear that the contract is one for service, and that with effect from the date on which the contract begins, Dr. Gandhi shall no longer remain as a regular employee of the Institute, making it clear that his services are now no longer as a regular employee but as an independent professional. Secondly, the remuneration is described as honorarium, and consistent with the position that Dr. Gandhi is an independent professional working in the Institute in his own right, he gets a share of the spoils as has been pointed out hereinabove. Thirdly, he enters into the agreement on equal terms as the agreement is for three years, extendable only by mutual consent of both the parties. Fourthly, his services cannot be terminated in the usual manner of the other regular employees of the Institute but are terminable on either side by notice. The fact that Dr. Gandhi will devote full-time attention to the Institute is the obverse side of piece-rated work which, as has been held in some of the judgments hereinabove, can yet amount to contracts of service, being a neutral factor. Likewise, the fact that Dr. Gandhi must devote his entire attention to the Institute would not necessarily lead to the conclusion that de hors all other factors the contract is one of service. Equally important is the fact that it is necessary to state Dr. Gandhi will be governed by the Conduct Rules and by the Leave Rules of the Institute, but by no other Rules. And even though the Leave Rules apply to Dr. Gandhi, since he is not a regular employee, he is not entitled to any financial benefit as might be applicable to other regular employees. Equally, arbitration of disputes between Dr. Gandhi and the Institute being referred to the Managing Committee of the Institute would show that they have entered into the contract not as master and servant but as employer and independent professional. A conspectus of all the above would certainly lead to the conclusion, applying the economic reality test, that the contract entered into between the parties is one between an Institute and an independent professional29. Even otherwise, it is well-settled that exemption of liability clauses in insurance contracts are to be construed in the case of ambiguity contra proferentum34. The High Court held in the impugned judgment that as additional premium had been paid so as to attract the applicability of IMT-5, in any case the Insurance Company would be liable under the policy to pay compensation in the case of death to unnamed passengers other than the insured and his paid driver or cleaner, Dr. Alpesh Gandhi being one such unnamed passenger. This was done on the footing that the exception to IMT-5 was that a person in the employ of the insured coming within the scope of the Workmens Compensation Act, 1923 is excluded from the cover, but that as Dr. Alpesh Gandhi did not come within the scope of the Workmens Compensation Act, compensation payable due to his death in a motor accident would be covered by IMT-5. We see no reason to disturb this finding. The inapplicability of endorsement IMT-16, as additional premium had not been paid would, therefore, make no difference on the facts of this case. Section-II, entitled liability to third parties in the insurance policy dated 17.04.1997 set out hereinabove exempts the insurance company from the death of a person carried in a motor car where such death arises out of and in the course of the employment of such person by the insurer. The question that arises before us is as to whether the expression employment is to be construed widely or narrowly – if widely construed, a person may be said to employed by an employer even if he is not a regular employee of the employer. However, the wider meaning that has been canvassed for by the insurance company cannot possibly be given, given the language immediately before, namely, in the course of, thereby indicating that the employment can only be that of a person regularly employed by the employer. Even otherwise, assuming that there is an ambiguity or doubt, the contra proferentum rule referred to hereinabove, must be applied, thus making it clear that such employment refers only to regular employees of the Institute, which, as we have seen hereinabove, Dr. Alpesh Gandhi was certainly notThis Order seems to have been passed under Article 142 of the Constitution on the facts of that case, without reference to any case law. In the view that we have taken, it is unnecessary for us to place reliance on such Order.
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Sham Lal Narula Vs. Commissioner of Income Tax, Punjab, Jammu & Kashmir, Himachal Pradesh & Patiala | deprivation of the use of the money representing the compensation for the land acquired.10. We shall now proceed to consider the case law cited at the Bar. Where a Tribunal directed the Improvement Trust, under the provisions of S. 28 of the Land Acquisition Act, to pay interest to the assessee from the date of taking possession of the property to the date of payment, a Division Bench of the Allahabad High Court held, in Behari Lal Bhargava v. Commr. of Income- tax, C.P. and U.P., 1941-9 ITR 9 at p. 24 : (AIR 1941 All 135 at p. 140) that the interest so awarded was in the nature of compensation for the loss of the assessees right to retain possession of the property acquired and therefore, was not income liable to tax. The reason for the said conclusion is stated thus :"It is not the "fruit of a tree"- to borrow the simile used in Commr. of Income-tax v. Shaw Wallace and Co. AIR 1932 PC 138 - but was compensation or damages for loss of the right to retain possession; and it seems to us that S. 28 was designed as a convenient method of measuring such damages in terms of interest"As we have pointed out, earlier, as soon as the Collector has taken possession of the land either before or after the award the title absolutely vests in the Government and thereafter the owner of the land so acquired ceases to have any title or right of possession to the land acquired. Under the award he gets compensation for both the rights. Therefore, the interest awarded under S. 28 of the Act, just like under S. 34 thereof, cannot be a compensation or damages for the loss of the right to retain possession but only compensation payable by the State for keeping back the amount payable to the owner. Adverting to the said decision a Division Bench of the Madras High Court in Commr. of Income-tax, Madras v. N. Narayanan Chettiar, (1943) 11 ITR 470 at p. 477 : (AIR 1943 Mad 682 at p. 683) observed :"....... with great respect we find ourselves unable to follow the reasoning. Certainly we are not prepared to accept the judgement as a guide to the decision in the present case."So was the interest granted to an assessee under S. 18A of the Income-tax Act on the advance payment of tax by him under the provisions of that section held to be income taxable in his hand : see Commr. of Income-tax, Bihar and Orissa v. Kameshwar Singh, (1953) 23 ITR 212 at p. 225 : (AIR 1953 Pat 217 at p.220). There, when the decision of the Allahabad High Court in Behari Lal Bhargavas case.(1941) 9 ITR 9: (AIR 1941 All 135 ) was relied upon the learned Judges, refusing to follow it, observed thus :"It is not a matter of discretion for the Central Government but the duty to pay interest is imposed by the statute. Apart from this I think (with great respect) that the Allahabad decision is of doubtful authority. The decision is not consistent with the principal laid down in Schulze v. Bensted, (1919) 7 Tax Cas 30 and Commrs. of Inland Revenue v. Barnato (1936) 20 Tax Cas 455. The Madras High Court expressly declined to follow the Allahabad case in 1943-11 ITR 470 : (AIR 1943 Mad 682 )"The Kerala High Court in P.V. Kurien v. Commr. of Income-tax, Kerala, (1962) 46 ITR 288 (Ker) held that interest paid on the enhanced amount of compensation directed to be paid by an appellate court in an appeal against an award of compensation for compulsory acquisition of land under the Land Acquisition Act represented capital and was not income liable to be taxed under the Indian Income-tax Act. It was argued there as is argued before us, that the interest awarded was a capital sum estimated in terms of interest. In coming to the conclusion which they did, the learned Judges relied upon the decision of the Judicial Committee in Inglewood Pulp and Paper Co., Ltd. v. New Brunswick Electric Power Commission AIR 1928 PC 287 and that of the Madras High Court in Revenue Divisional Officer, Trichinpoly v. Venkatarama Ayyar, AIR 1936 Mad 199 . In the former, the Judicial Committee directed the purchaser who had taken delivery and possession of the property he had purchased before the sale to pay interest to the vendor on the purchase money from the date he had taken possession on the ground that "the right to receive interest takes the place of the right to retain possession and is within the rule"; and in the latter, though it arose under the Land Acquisition Act, possession was taken by the Government under circumstances falling outside the scope of Sections 16 and 17 of the said Act. In both the cases the title did not pass to the vendee in one case and to the State in the other when possession was taken by them and, therefore, it may be said that the owner was given interest in place of his right to retain possession of the property. But in a case where title passes to the State, the statutory interest provided thereafter can only be regarded either as representing the profit which the owner of the land might have made if he had the use of the money or the loss he suffered because he had not that use. In no sense of the term can it be described as damages or compensation for the owners right to retain possession, for he has no right to retain possession after possession was taken under S. 16 or S. 17 of the Act. We, therefore, hold that the statutory interest paid under S. 34 of the Act is interest paid for the delayed payment of the compensation amount and, therefore, is a revenue receipt liable to tax under the Income-tax Act. The order of the High Court is therefore, correct. | 0[ds]The section itself makes a distinction between the amount awarded as compensation and the interest payable on the amount so awarded. The interest shall be paid on the amount awarded from the time the Collector takes possession until the amount is paid or deposited. To appreciate the scope of the section it is necessary to notice briefly the scope of an award and the manner in which possession is taken under the Act. After the statutory notifications are issued and the requisite notice is given to the persons interested in the land so acquired, the Collector, after holding the necessary enquiry, makes an award inter alia, determining the amount of compensation payable for the land so acquired. Section 15 of the Act says that in determining the amount of compensation the Collector shall be guided by the provisions contained in Ss. 23 and 24. Section 23 provides for the matters to be considered in determining compensation; S. 24 describes the matters to be neglected in determining the compensation. A persual of the provisions of S. 23 shows that interest is not an item included in the compensation for any of the matters mentioned therein; nor is it mentioned as a consideration for the acquisition of the land. Under cl. (2) of S. 23, the Legislature in express terms states that in addition to the market value of the land the court shall in every case award a sum of 15 per cent, of such market value in consideration of the compulsory nature of the acquisition. If interest on the amount of compensation determined under S. 23 is considered to be a part of the compensation or given in consideration of the compulsory nature of the acquisition, the Legislature would have provided for it in S. 23 itself. But instead, payment of interest is provided for separately under S. 34 in Part V of the Act under the heading "Payment. It is so done, because interest pertains to the domain of payment after the compensation has been ascertained. It is a consideration paid either for the use of the money or for forbearance from demanding it after it has fallen due. Therefore, the Act itself makes a clear distinction between the compensation payable for the land acquired and the interest payable on the compensation awarded.7. Another approach to the problem leads to the same result. Under S. 16 of the Act when the Collector has made an award under S. 11 he may take possession of the land which shall thereupon vest absolutely in the Government free from allpassage indicates that interest, whether it is statutory or contractual, represents the profit the creditor might have made if he had the use of the money or the loss he suffered because he had not that use. It is something, in addition to the capital amount, though it arises out of it. Under S. 34 of the Act when the Legislature designedly used the word "interest" in contradistinction to the amount awarded, we do not see any reason why the expression should not be given the natural meaning itboth the cases the title did not pass to the vendee in one case and to the State in the other when possession was taken by them and, therefore, it may be said that the owner was given interest in place of his right to retain possession of the property. But in a case where title passes to the State, the statutory interest provided thereafter can only be regarded either as representing the profit which the owner of the land might have made if he had the use of the money or the loss he suffered because he had not that use. In no sense of the term can it be described as damages or compensation for the owners right to retain possession, for he has no right to retain possession after possession was taken under S. 16 or S. 17 of the Act. We, therefore, hold that the statutory interest paid under S. 34 of the Act is interest paid for the delayed payment of the compensation amount and, therefore, is a revenue receipt liable to tax under the Income-tax Act. The order of the High Court is therefore,both the sections the land acquired vests absolutely in the Government after the Collector has taken possession in one case after the making of the award and in the other, even before the making of the award. In either case, some time may lapse between the taking of possession of the acquired land by the Collector and the payment or deposit of the compensation to the person interested in the land acquired. As the land acquired vests absolutely in the Government only after the Collector has taken possession of it, no interest therein will be outstanding in the in the claimant after the taking of such possession: he is divested of his title to the land and his right to possession thereof, and both of them vest thereafter in the Government. Thereafter he will be entitled only to be paid compensation that has been or will be awarded to him. He will be entitled to compensation, though the ascertainment thereof may be postponed, from the date his title to the land and the right to possession thereof have been divested and vested in the Government. It is as it were that from that date the Government withheld the compensation amount which the claimant would be entitled to under the provisions of the Act. Therefore, a statutory liability has been imposed upon the Collector to pay interest on the amount awarded from the time of his taking possession until the amount is paid or deposited. This amount is not, therefore, compensation for the land acquired or for depriving the claimant of his right to possession, but is that paid to the claimant for the use of his money by the State. In this view there cannot be any difference in the legal position between a case where possession has been taken before and that where possession has been taken after the award, for in either case the title vests in the Government only after the possession has beenis therefore, reasonable to give that expression the natural meaning it bears.bears.9. The scheme of the Act and the express provisions thereof establish that the statutory interest payable under S. 34 is not compensation paid to the owner for depriving him of his right to possession of the land acquired, but that given to him for the deprivation of the use of the money representing the compensation for the land acquired. | 0 | 3,290 | 1,184 | ### 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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deprivation of the use of the money representing the compensation for the land acquired.10. We shall now proceed to consider the case law cited at the Bar. Where a Tribunal directed the Improvement Trust, under the provisions of S. 28 of the Land Acquisition Act, to pay interest to the assessee from the date of taking possession of the property to the date of payment, a Division Bench of the Allahabad High Court held, in Behari Lal Bhargava v. Commr. of Income- tax, C.P. and U.P., 1941-9 ITR 9 at p. 24 : (AIR 1941 All 135 at p. 140) that the interest so awarded was in the nature of compensation for the loss of the assessees right to retain possession of the property acquired and therefore, was not income liable to tax. The reason for the said conclusion is stated thus :"It is not the "fruit of a tree"- to borrow the simile used in Commr. of Income-tax v. Shaw Wallace and Co. AIR 1932 PC 138 - but was compensation or damages for loss of the right to retain possession; and it seems to us that S. 28 was designed as a convenient method of measuring such damages in terms of interest"As we have pointed out, earlier, as soon as the Collector has taken possession of the land either before or after the award the title absolutely vests in the Government and thereafter the owner of the land so acquired ceases to have any title or right of possession to the land acquired. Under the award he gets compensation for both the rights. Therefore, the interest awarded under S. 28 of the Act, just like under S. 34 thereof, cannot be a compensation or damages for the loss of the right to retain possession but only compensation payable by the State for keeping back the amount payable to the owner. Adverting to the said decision a Division Bench of the Madras High Court in Commr. of Income-tax, Madras v. N. Narayanan Chettiar, (1943) 11 ITR 470 at p. 477 : (AIR 1943 Mad 682 at p. 683) observed :"....... with great respect we find ourselves unable to follow the reasoning. Certainly we are not prepared to accept the judgement as a guide to the decision in the present case."So was the interest granted to an assessee under S. 18A of the Income-tax Act on the advance payment of tax by him under the provisions of that section held to be income taxable in his hand : see Commr. of Income-tax, Bihar and Orissa v. Kameshwar Singh, (1953) 23 ITR 212 at p. 225 : (AIR 1953 Pat 217 at p.220). There, when the decision of the Allahabad High Court in Behari Lal Bhargavas case.(1941) 9 ITR 9: (AIR 1941 All 135 ) was relied upon the learned Judges, refusing to follow it, observed thus :"It is not a matter of discretion for the Central Government but the duty to pay interest is imposed by the statute. Apart from this I think (with great respect) that the Allahabad decision is of doubtful authority. The decision is not consistent with the principal laid down in Schulze v. Bensted, (1919) 7 Tax Cas 30 and Commrs. of Inland Revenue v. Barnato (1936) 20 Tax Cas 455. The Madras High Court expressly declined to follow the Allahabad case in 1943-11 ITR 470 : (AIR 1943 Mad 682 )"The Kerala High Court in P.V. Kurien v. Commr. of Income-tax, Kerala, (1962) 46 ITR 288 (Ker) held that interest paid on the enhanced amount of compensation directed to be paid by an appellate court in an appeal against an award of compensation for compulsory acquisition of land under the Land Acquisition Act represented capital and was not income liable to be taxed under the Indian Income-tax Act. It was argued there as is argued before us, that the interest awarded was a capital sum estimated in terms of interest. In coming to the conclusion which they did, the learned Judges relied upon the decision of the Judicial Committee in Inglewood Pulp and Paper Co., Ltd. v. New Brunswick Electric Power Commission AIR 1928 PC 287 and that of the Madras High Court in Revenue Divisional Officer, Trichinpoly v. Venkatarama Ayyar, AIR 1936 Mad 199 . In the former, the Judicial Committee directed the purchaser who had taken delivery and possession of the property he had purchased before the sale to pay interest to the vendor on the purchase money from the date he had taken possession on the ground that "the right to receive interest takes the place of the right to retain possession and is within the rule"; and in the latter, though it arose under the Land Acquisition Act, possession was taken by the Government under circumstances falling outside the scope of Sections 16 and 17 of the said Act. In both the cases the title did not pass to the vendee in one case and to the State in the other when possession was taken by them and, therefore, it may be said that the owner was given interest in place of his right to retain possession of the property. But in a case where title passes to the State, the statutory interest provided thereafter can only be regarded either as representing the profit which the owner of the land might have made if he had the use of the money or the loss he suffered because he had not that use. In no sense of the term can it be described as damages or compensation for the owners right to retain possession, for he has no right to retain possession after possession was taken under S. 16 or S. 17 of the Act. We, therefore, hold that the statutory interest paid under S. 34 of the Act is interest paid for the delayed payment of the compensation amount and, therefore, is a revenue receipt liable to tax under the Income-tax Act. The order of the High Court is therefore, correct.
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makes an award inter alia, determining the amount of compensation payable for the land so acquired. Section 15 of the Act says that in determining the amount of compensation the Collector shall be guided by the provisions contained in Ss. 23 and 24. Section 23 provides for the matters to be considered in determining compensation; S. 24 describes the matters to be neglected in determining the compensation. A persual of the provisions of S. 23 shows that interest is not an item included in the compensation for any of the matters mentioned therein; nor is it mentioned as a consideration for the acquisition of the land. Under cl. (2) of S. 23, the Legislature in express terms states that in addition to the market value of the land the court shall in every case award a sum of 15 per cent, of such market value in consideration of the compulsory nature of the acquisition. If interest on the amount of compensation determined under S. 23 is considered to be a part of the compensation or given in consideration of the compulsory nature of the acquisition, the Legislature would have provided for it in S. 23 itself. But instead, payment of interest is provided for separately under S. 34 in Part V of the Act under the heading "Payment. It is so done, because interest pertains to the domain of payment after the compensation has been ascertained. It is a consideration paid either for the use of the money or for forbearance from demanding it after it has fallen due. Therefore, the Act itself makes a clear distinction between the compensation payable for the land acquired and the interest payable on the compensation awarded.7. Another approach to the problem leads to the same result. Under S. 16 of the Act when the Collector has made an award under S. 11 he may take possession of the land which shall thereupon vest absolutely in the Government free from allpassage indicates that interest, whether it is statutory or contractual, represents the profit the creditor might have made if he had the use of the money or the loss he suffered because he had not that use. It is something, in addition to the capital amount, though it arises out of it. Under S. 34 of the Act when the Legislature designedly used the word "interest" in contradistinction to the amount awarded, we do not see any reason why the expression should not be given the natural meaning itboth the cases the title did not pass to the vendee in one case and to the State in the other when possession was taken by them and, therefore, it may be said that the owner was given interest in place of his right to retain possession of the property. But in a case where title passes to the State, the statutory interest provided thereafter can only be regarded either as representing the profit which the owner of the land might have made if he had the use of the money or the loss he suffered because he had not that use. In no sense of the term can it be described as damages or compensation for the owners right to retain possession, for he has no right to retain possession after possession was taken under S. 16 or S. 17 of the Act. We, therefore, hold that the statutory interest paid under S. 34 of the Act is interest paid for the delayed payment of the compensation amount and, therefore, is a revenue receipt liable to tax under the Income-tax Act. The order of the High Court is therefore,both the sections the land acquired vests absolutely in the Government after the Collector has taken possession in one case after the making of the award and in the other, even before the making of the award. In either case, some time may lapse between the taking of possession of the acquired land by the Collector and the payment or deposit of the compensation to the person interested in the land acquired. As the land acquired vests absolutely in the Government only after the Collector has taken possession of it, no interest therein will be outstanding in the in the claimant after the taking of such possession: he is divested of his title to the land and his right to possession thereof, and both of them vest thereafter in the Government. Thereafter he will be entitled only to be paid compensation that has been or will be awarded to him. He will be entitled to compensation, though the ascertainment thereof may be postponed, from the date his title to the land and the right to possession thereof have been divested and vested in the Government. It is as it were that from that date the Government withheld the compensation amount which the claimant would be entitled to under the provisions of the Act. Therefore, a statutory liability has been imposed upon the Collector to pay interest on the amount awarded from the time of his taking possession until the amount is paid or deposited. This amount is not, therefore, compensation for the land acquired or for depriving the claimant of his right to possession, but is that paid to the claimant for the use of his money by the State. In this view there cannot be any difference in the legal position between a case where possession has been taken before and that where possession has been taken after the award, for in either case the title vests in the Government only after the possession has beenis therefore, reasonable to give that expression the natural meaning it bears.bears.9. The scheme of the Act and the express provisions thereof establish that the statutory interest payable under S. 34 is not compensation paid to the owner for depriving him of his right to possession of the land acquired, but that given to him for the deprivation of the use of the money representing the compensation for the land acquired.
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R. Ramamurthi Iyer Vs. Raja V. Rajeswara Rao | of his share and offer to sell the same to such shareholder at a price to be ascertained.12. Coming back to the question of withdrawal of a suit in which the provisions of Ss. 2 and 3 of the Partition Act have been invoked we find it difficult to accede to the contention of the appellant that the suit can be withdrawn by the plaintiff after he has himself requested for a sale under S. 2 of the Partition Act and the defendant has applied to the court for leave to buy at a valuation the share of the plaintiff under S. 3. In England the position about withdrawal has been stated thus, in the Supreme Court Practice 1970 at page 334 :"Before Judgment.- Leave may be refused to a plaintiff to discontinue the action if the plaintiff is not wholly dominus litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him."As soon as a shareholder applies for leave to buy at a valuation the share of the party asking for a sale under S. 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and after getting the same done to offer to sell the same to such shareholder at the valuation so made. This advantage, which may or may not fulfil the juridical meaning of a right, is nevertheless a privilege or a benefit which the law confers on the shareholder. If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the share of the plaintiff in accordance with the provisions of S. 3 (1) it would only enable the plaintiff to defeat the purpose of S. 3 (1) and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property under S. 2 instead of partitioning it. Apart from these considerations it would also enable the plaintiff in a partition suit to withdraw that suit and defeat the defendants claim which, according to Crump J., cannot be done even in a suit where the provisions of the Partition Act have not been invoked.13. In the argument of the learned counsel for the appellant emphasis has been laid on the fact that in the present case the court did not give any finding that the property was not capable of division by metes and bounds. It is thus pointed out that the essential condition for the application of S. 2 of the Partition Act had not been satisfied and S. 3 cannot be availed of by the respondent unless it had first been found that the property could be put to sale in the light of the provisions of S. 2.This submission has hardly any substance inasmuch as the trial court had prima facie come to the conclusion that a division by metes and bounds was not possible. That was sufficient so far as the proceedings in the present case were concerned. The language of S. 3 (sic S. 2) of the Partition Act does not appear to make it obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds. It should only "appear" that it is not so capable of division. It has further been contended that the respondent had maintained throughout that the property was capable of division. He could not, therefore, take advantage of the provisions of the Partition Act. Further he never made any proper application invoking the provisions of S. 3 of the Partition Act and all that he said in his written statement, was that in case the court held that the said property was incapable of division into two shares he was ready and willing to buy the plaintiffs share in the suit at a valuation to be made in such a manner as the court might think proper. In our opinion, this was sufficient compliance with the requirement of S. 3 of the Partition Act. Section 3 (1) does not contemplate a formal application being filed in every case. The words employed therein simply mean that the other shareholder has to inform the court or notify to it that he is prepared to buy at a valuation the share of the party asking for sale. In the written statement even if it was maintained that the property was not (sic) capable of division by metes and bounds the alternative prayer was necessarily made in para 7 which would satisfy the requirements of S. 3 of the Partition Act.14. Our attention has been invited by the learned counsel for the appellant to certain English decisions and in particular to the case of Peter Pitt v. Thomas Webb Jones, (1880) 5 AC 651 and the statement in Halsburys Laws of England vol. 24, Second Edition (Hailsham Edn.) paras 745 to 747. It has been pointed out that in the English Partition Act 1868 (31, 32 Victoriae, Cap. 40) Ss. 3 and 5 are similar in terms to Ss. 2 and 3 of the Indian Partition Act. The statement in Halsburys Laws of England and the law laid down in the decided cases, it is urged, do not support the view which has been pressed on behalf of the respondent. The view expressed was that the court had a discretionary jurisdiction if any interested party requested for sale to order sale notwithstanding the dissent or the disability of any other party, if it appeared to the court that it would be more beneficial for the parties interested. The provisions of the English Partition Act do not appear to be in pari materia with those of the Indian Partition Act and we do not consider that any assistance can be derived from the English law on the points which are being determined by us.15 | 0[ds]14. Our attention has been invited by the learned counsel for the appellant to certain English decisions and in particular to the case of Peter Pitt v. Thomas Webb Jones, (1880) 5 AC 651 and the statement in Halsburys Laws of England vol. 24, Second Edition (Hailsham Edn.) paras 745 to 747. It has been pointed out that in the English Partition Act 1868 (31, 32 Victoriae, Cap. 40) Ss. 3 and 5 are similar in terms to Ss. 2 and 3 of the Indian Partition Act. The statement in Halsburys Laws of England and the law laid down in the decided cases, it is urged, do not support the view which has been pressed on behalf of the respondent. The view expressed was that the court had a discretionary jurisdiction if any interested party requested for sale to order sale notwithstanding the dissent or the disability of any other party, if it appeared to the court that it would be more beneficial for the parties interested. The provisions of the English Partition Act do not appear to be in pari materia with those of the Indian Partition Act and we do not consider that any assistance can be derived from the English law on the points which are being determined by us. | 0 | 5,741 | 241 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
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of his share and offer to sell the same to such shareholder at a price to be ascertained.12. Coming back to the question of withdrawal of a suit in which the provisions of Ss. 2 and 3 of the Partition Act have been invoked we find it difficult to accede to the contention of the appellant that the suit can be withdrawn by the plaintiff after he has himself requested for a sale under S. 2 of the Partition Act and the defendant has applied to the court for leave to buy at a valuation the share of the plaintiff under S. 3. In England the position about withdrawal has been stated thus, in the Supreme Court Practice 1970 at page 334 :"Before Judgment.- Leave may be refused to a plaintiff to discontinue the action if the plaintiff is not wholly dominus litis or if the defendant has by the proceedings obtained an advantage of which it does not seem just to deprive him."As soon as a shareholder applies for leave to buy at a valuation the share of the party asking for a sale under S. 3 of the Partition Act he obtains an advantage in that the court is bound thereafter to order a valuation and after getting the same done to offer to sell the same to such shareholder at the valuation so made. This advantage, which may or may not fulfil the juridical meaning of a right, is nevertheless a privilege or a benefit which the law confers on the shareholder. If the plaintiff is allowed to withdraw the suit after the defendant has gained or acquired the advantage or the privilege of buying the share of the plaintiff in accordance with the provisions of S. 3 (1) it would only enable the plaintiff to defeat the purpose of S. 3 (1) and also to deprive the defendant of the above option or privilege which he has obtained by the plaintiff initially requesting the court to sell the property under S. 2 instead of partitioning it. Apart from these considerations it would also enable the plaintiff in a partition suit to withdraw that suit and defeat the defendants claim which, according to Crump J., cannot be done even in a suit where the provisions of the Partition Act have not been invoked.13. In the argument of the learned counsel for the appellant emphasis has been laid on the fact that in the present case the court did not give any finding that the property was not capable of division by metes and bounds. It is thus pointed out that the essential condition for the application of S. 2 of the Partition Act had not been satisfied and S. 3 cannot be availed of by the respondent unless it had first been found that the property could be put to sale in the light of the provisions of S. 2.This submission has hardly any substance inasmuch as the trial court had prima facie come to the conclusion that a division by metes and bounds was not possible. That was sufficient so far as the proceedings in the present case were concerned. The language of S. 3 (sic S. 2) of the Partition Act does not appear to make it obligatory on the court to give a positive finding that the property is incapable of division by metes and bounds. It should only "appear" that it is not so capable of division. It has further been contended that the respondent had maintained throughout that the property was capable of division. He could not, therefore, take advantage of the provisions of the Partition Act. Further he never made any proper application invoking the provisions of S. 3 of the Partition Act and all that he said in his written statement, was that in case the court held that the said property was incapable of division into two shares he was ready and willing to buy the plaintiffs share in the suit at a valuation to be made in such a manner as the court might think proper. In our opinion, this was sufficient compliance with the requirement of S. 3 of the Partition Act. Section 3 (1) does not contemplate a formal application being filed in every case. The words employed therein simply mean that the other shareholder has to inform the court or notify to it that he is prepared to buy at a valuation the share of the party asking for sale. In the written statement even if it was maintained that the property was not (sic) capable of division by metes and bounds the alternative prayer was necessarily made in para 7 which would satisfy the requirements of S. 3 of the Partition Act.14. Our attention has been invited by the learned counsel for the appellant to certain English decisions and in particular to the case of Peter Pitt v. Thomas Webb Jones, (1880) 5 AC 651 and the statement in Halsburys Laws of England vol. 24, Second Edition (Hailsham Edn.) paras 745 to 747. It has been pointed out that in the English Partition Act 1868 (31, 32 Victoriae, Cap. 40) Ss. 3 and 5 are similar in terms to Ss. 2 and 3 of the Indian Partition Act. The statement in Halsburys Laws of England and the law laid down in the decided cases, it is urged, do not support the view which has been pressed on behalf of the respondent. The view expressed was that the court had a discretionary jurisdiction if any interested party requested for sale to order sale notwithstanding the dissent or the disability of any other party, if it appeared to the court that it would be more beneficial for the parties interested. The provisions of the English Partition Act do not appear to be in pari materia with those of the Indian Partition Act and we do not consider that any assistance can be derived from the English law on the points which are being determined by us.15
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14. Our attention has been invited by the learned counsel for the appellant to certain English decisions and in particular to the case of Peter Pitt v. Thomas Webb Jones, (1880) 5 AC 651 and the statement in Halsburys Laws of England vol. 24, Second Edition (Hailsham Edn.) paras 745 to 747. It has been pointed out that in the English Partition Act 1868 (31, 32 Victoriae, Cap. 40) Ss. 3 and 5 are similar in terms to Ss. 2 and 3 of the Indian Partition Act. The statement in Halsburys Laws of England and the law laid down in the decided cases, it is urged, do not support the view which has been pressed on behalf of the respondent. The view expressed was that the court had a discretionary jurisdiction if any interested party requested for sale to order sale notwithstanding the dissent or the disability of any other party, if it appeared to the court that it would be more beneficial for the parties interested. The provisions of the English Partition Act do not appear to be in pari materia with those of the Indian Partition Act and we do not consider that any assistance can be derived from the English law on the points which are being determined by us.
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Mahant Parichchan Das Vs. Bihar State Board of Religious Trusts and Others | appointment of a successor has been all through-out from guru to chela, the reigning mahant appointing or nominating his successor from amongst his chelas and the members of the public have had at no time any voice in the selection or nomination; (4) that the properties have always been recorded in the names of the mahants as proprietors and not in the name of the deities in the D registers, Khewats and Khatians; (5) that the mahants have been in pos session and management of the asthal and the properties all throughout; (6) that the mahants acquired properties from time to time in their own names as proprietors and never in the names of the deities or the asthal, without any objection at any time from any one and dealt with some of them through deeds of sales, mortgages, leases etc." Before this Court reliance was placed on the following circumstances to prove that the properties were impressed with a trust for religious or public purposes: "(1) the fact that the mahants were vaishnav bairagis who were life long celibates; (2) that sadhus and others were given food and shelter when they visited the temple; (3) that festivals and other important Hindu dates used to be celebrated; (4) that the members of the public came to the temple for darshan without any hindrance and as of right; (5) that in the deeds and wills, whereby reigning mahants appointed or nominated their successors, the properties were described as appertaining to the asthal, and that the temple being the dominant part of the asthal and maintained for the worship and puja of the presiding deities installed therein, the properties belonged to the temple, and therefore, they were properties of a trust for religious and charitable character. (6) The idols were installed partly on a pedestal and the temple was constructed on grounds separate from the residential quarters of the Mahant". It was held by this Court that everyone of the circumstances was equally consistent with the character of the trust being public or private and that the onus which was on the Bihar State Religious Trust Board to establish the public nature of the trust had not been discharged. In view of the submissions of the learned counsel for the appellant, it is necessary to refer to the findings of the High Court in the present case. The High Court found that there was no evidence to show who the founder of the Mutt was and who built the temples. It was also found that there was no evidence to show that the temp le in the village of Dumri was constructed on the land belonging to Gurdyal Singh or that the temple in the village of Maudah was constructed on land belonging to Brahmdas. It was found that several properties were acquired by various Mahants in their names instead of in the names of the idols but the acquisition of properties was for the purposes of the Asthal or Mutt. It was also found that from time to time gifts of land had been made by the villagers of Dumri. It was found that the Mahants had executed Kebalas for effecting repairs of the temples and had similarly executed deeds of mortgage. It was found that the people of the villages of Dumri and Maudah used to visit the temple without any let or hinderance and that the Mutt was so located as to suit the convenience of the villagers of both Dumri and Harpur. It was situated on the boundary of the two villages and was on a platform at a certain height, open on all sides with plenty of space around it. The temple in the Mutt had three doors with space for visitors. It was noticed by the High Court that the lands were held rent free in consideration of religious services.It is true as submitted by the learned counsel, many of the circumstances are neutral. The fact that members of the public were permitted to go to the temple without any hindrance might not be a circumstance which by itself would conclusively establish that the temple was a public temple in the absence of an element of right in the user of the temple by the public. Conversely the free use of the properties of the temple by the Mahant at a time when he was the sole manager of the temple and its properties would not necessarily lead to the inference that the temple was not a public temple. Patently there can be no simple or conclusive factual tests to determine the character of a trust. The totality of the circumstances and their effect must be considered. Here not only do we find that members of the public were allowed free access to the temple, they were evincing much greater interest in the institution as evidenced by the circumstances that several villagers had made gifts of land to it, a circumstance which would ordinarily be consistent with the nature of the institution being public and not private. Again, as pointed out by Venkatarama Ayyar, J., Deoki Nandan v. Murlidhar, (1) the situation of the temple would be an important circumstance in determining whether it was private or public. The High Court has pointed out that the temple was constructed outside the village on open land between the villages of Dumri and Harpur so as to be convenient to the villagers of both the villages. It was constructed on a high platform and was open on all sides with plenty or space around it to accommodate large number of people. Obviously the temple was located and constructed so as to attract and accommodate large number of villagers from the two villages. The donation of land by members of the public to the institution and the location of the temple at a place freely accessable and convenient to the public were circumstances which were absent in Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das (supra). | 0[ds]Here not only do we find that members of the public were allowed free access to the temple, they were evincing much greater interest in the institution as evidenced by the circumstances that several villagers had made gifts of land to it, a circumstance which would ordinarily be consistent with the nature of the institution being public and not private. Again, as pointed out by Venkatarama Ayyar, J., Deoki Nandan v. Murlidhar, (1) the situation of the temple would be an important circumstance in determining whether it was private or public. The High Court has pointed out that the temple was constructed outside the village on open land between the villages of Dumri and Harpur so as to be convenient to the villagers of both the villages. It was constructed on a high platform and was open on all sides with plenty or space around it to accommodate large number of people. Obviously the temple was located and constructed so as to attract and accommodate large number of villagers from the two villages. The donation of land by members of the public to the institution and the location of the temple at a place freely accessable and convenient to the public were circumstances which were absent in Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das (supra). We are satisfied that, in the circumstances the High Court was right in holding that there was a trust of a public nature. | 0 | 1,655 | 265 | ### 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:
appointment of a successor has been all through-out from guru to chela, the reigning mahant appointing or nominating his successor from amongst his chelas and the members of the public have had at no time any voice in the selection or nomination; (4) that the properties have always been recorded in the names of the mahants as proprietors and not in the name of the deities in the D registers, Khewats and Khatians; (5) that the mahants have been in pos session and management of the asthal and the properties all throughout; (6) that the mahants acquired properties from time to time in their own names as proprietors and never in the names of the deities or the asthal, without any objection at any time from any one and dealt with some of them through deeds of sales, mortgages, leases etc." Before this Court reliance was placed on the following circumstances to prove that the properties were impressed with a trust for religious or public purposes: "(1) the fact that the mahants were vaishnav bairagis who were life long celibates; (2) that sadhus and others were given food and shelter when they visited the temple; (3) that festivals and other important Hindu dates used to be celebrated; (4) that the members of the public came to the temple for darshan without any hindrance and as of right; (5) that in the deeds and wills, whereby reigning mahants appointed or nominated their successors, the properties were described as appertaining to the asthal, and that the temple being the dominant part of the asthal and maintained for the worship and puja of the presiding deities installed therein, the properties belonged to the temple, and therefore, they were properties of a trust for religious and charitable character. (6) The idols were installed partly on a pedestal and the temple was constructed on grounds separate from the residential quarters of the Mahant". It was held by this Court that everyone of the circumstances was equally consistent with the character of the trust being public or private and that the onus which was on the Bihar State Religious Trust Board to establish the public nature of the trust had not been discharged. In view of the submissions of the learned counsel for the appellant, it is necessary to refer to the findings of the High Court in the present case. The High Court found that there was no evidence to show who the founder of the Mutt was and who built the temples. It was also found that there was no evidence to show that the temp le in the village of Dumri was constructed on the land belonging to Gurdyal Singh or that the temple in the village of Maudah was constructed on land belonging to Brahmdas. It was found that several properties were acquired by various Mahants in their names instead of in the names of the idols but the acquisition of properties was for the purposes of the Asthal or Mutt. It was also found that from time to time gifts of land had been made by the villagers of Dumri. It was found that the Mahants had executed Kebalas for effecting repairs of the temples and had similarly executed deeds of mortgage. It was found that the people of the villages of Dumri and Maudah used to visit the temple without any let or hinderance and that the Mutt was so located as to suit the convenience of the villagers of both Dumri and Harpur. It was situated on the boundary of the two villages and was on a platform at a certain height, open on all sides with plenty of space around it. The temple in the Mutt had three doors with space for visitors. It was noticed by the High Court that the lands were held rent free in consideration of religious services.It is true as submitted by the learned counsel, many of the circumstances are neutral. The fact that members of the public were permitted to go to the temple without any hindrance might not be a circumstance which by itself would conclusively establish that the temple was a public temple in the absence of an element of right in the user of the temple by the public. Conversely the free use of the properties of the temple by the Mahant at a time when he was the sole manager of the temple and its properties would not necessarily lead to the inference that the temple was not a public temple. Patently there can be no simple or conclusive factual tests to determine the character of a trust. The totality of the circumstances and their effect must be considered. Here not only do we find that members of the public were allowed free access to the temple, they were evincing much greater interest in the institution as evidenced by the circumstances that several villagers had made gifts of land to it, a circumstance which would ordinarily be consistent with the nature of the institution being public and not private. Again, as pointed out by Venkatarama Ayyar, J., Deoki Nandan v. Murlidhar, (1) the situation of the temple would be an important circumstance in determining whether it was private or public. The High Court has pointed out that the temple was constructed outside the village on open land between the villages of Dumri and Harpur so as to be convenient to the villagers of both the villages. It was constructed on a high platform and was open on all sides with plenty or space around it to accommodate large number of people. Obviously the temple was located and constructed so as to attract and accommodate large number of villagers from the two villages. The donation of land by members of the public to the institution and the location of the temple at a place freely accessable and convenient to the public were circumstances which were absent in Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das (supra).
### Response:
0
### Explanation:
Here not only do we find that members of the public were allowed free access to the temple, they were evincing much greater interest in the institution as evidenced by the circumstances that several villagers had made gifts of land to it, a circumstance which would ordinarily be consistent with the nature of the institution being public and not private. Again, as pointed out by Venkatarama Ayyar, J., Deoki Nandan v. Murlidhar, (1) the situation of the temple would be an important circumstance in determining whether it was private or public. The High Court has pointed out that the temple was constructed outside the village on open land between the villages of Dumri and Harpur so as to be convenient to the villagers of both the villages. It was constructed on a high platform and was open on all sides with plenty or space around it to accommodate large number of people. Obviously the temple was located and constructed so as to attract and accommodate large number of villagers from the two villages. The donation of land by members of the public to the institution and the location of the temple at a place freely accessable and convenient to the public were circumstances which were absent in Bihar State Board Religious Trust, Patna v. Mahant Sri Biseshwar Das (supra). We are satisfied that, in the circumstances the High Court was right in holding that there was a trust of a public nature.
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Sikka Papers Limited Vs. National Insurance Company Ltd. & Others | the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyors report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured." 14. The last surveyor in his report dated May 15, 2000 assessed the loss thus : I) Working of Claim under Invoice No.60/184989 dated 13.01.2000 of M/s.CDSS : We have allowed Labour Charges at Rs.80,000. Rs.80,000 Octroi Charge Rs.16,200 Freight Charges Rs.16,000 Transit Insurance Rs. 3,500 ------------------ Rs.1,15,700 Works Contract Tax 4% 4,628 -- ----------------- Rs.1,20,328 II) Working of Claim under Invoice No.60/184990 dated 31/1/2000 of M/s. CDSS: 1) "Kit -Crank Shaft" - Part No.AR 388113400K9 - 1 No. Rs.13,80,895. 52 (vide Page 1, Sr.No.1 of Subject invoice) Add 4% Work contract Tax Rs. 55,235.83 ------------------------ Rs.14,36,131.35 The subjects Kit -Crank Shaft is comprising of set Main Bearings & connecting Rod Bearings, the reasonable total value for them is taken at Rs.1,35,131.35. Less Reasonable cost for set of main bearings & Connecting rod bearings Rs. 1,35,131.35 ------------------------- - Rs.13,01,000/- Thus , bifurcation of costs are as under:- Cost of Crank Shaft Rs.13,01,000 Cost of set of main bearings & Connecting rod bearings Rs. 1,35,131 --------- ---------- Rs.14,36,131.35 A) Assessment for Crank Shaft: Cost for Crank Shaft Rs.13,01,000 Less additional policy excess for the Crank shaft as per endorsement ..20% Rs. 2,60,200 ------------------- Net Loss Rs.10,40,800 B) Assessment for set of main bearings & connecting rod bearings:- Cost for the set Rs. 1,35,131.35 Less reasonable depreciation ..50% Rs. 67,565.67 ------------------------ Net Loss after depreciation Rs. 67,565.67 2) Gears - 2 Nos. @ Rs.2587.69 - Part No.3177095 (Vide Page 6,Sr. No.91 of subject Invoice) Rs. 7,763.07 Add 4% work contract Tax Rs. 310.52 Rs. 8,073.59 Less reasonable depreciation 50% Rs. 4,036.79 Net Loss after depreciation Rs. 4,036.80 Thus, net loss after depreciation for (1) & (2)= A + B + Gears above for items under Invoice No.60/184990 Rs.11,12,402.47 III) Working of claim under Invoice No. 60/184991 Dt. 31/01/2000 of M/s.CDSS Core Coolers (Oil collers) - 4 Nos. @ 54,205.42 - Part No.3627295 Rs. 2,16,821.68 Add 4% Work contract Tax Rs. 8,672.87 This is not a Limited life item and hence there is no any depreciation applicable for it under the policy Net Loss Rs. 2,25,494.55 Thus net loss under all the three Invoice as per claim bill works out to I) + II) + III) Rs.14,58,225.02 Less reasonable Salvage at scrap value Rs. 13,225.02 Rs.14,45,000.00 Less under-insurance -25.71% vide page No.13 Rs. 3,71,509 .50 Rs.10,73,490.50 Say Rs.10,73,491 Less Policy Excess Rs. 26,000 Net assessed Loss Rs.10,47,491/-" 15. The parts which had suffered due to wear and tear on account of constant use, although replaced could not form part of claim for reimbursement under the terms of policy and, therefore, surveyor in its report dated May 15, 2000 cannot be said to have wrongly rejected such claim. It is true that surveyors report is not the last word but then there must be legitimate reasons for departing from such report. In our view, the complainant has failed to show any reason justifying rejection of surveyors report dated May 15, 2000. re : question (two) 16. In the Dictionary of Insurance (Second Edn.) by C. Bennett, "under-insurance" is explained thus: "under-insurance occurs when the amount of insurance is less than the full value of property insured and means that the insured pays a smaller premium than that required as the rate is fixed on the basis of full values being insured. It leads to partial loss claims being scaled down by average (qv.)." The expression "average" is explained thus: "In non-marine property insurance if a sum insured is `subject to average, and the sum insured is less than the value at risk at the time of loss, the claim will be reduced in the same proportion. The measure combats under-insurance." 17. As per the invoice, the diesel generating set and the alternator was purchased by the complainant in the year 1997 for Rs.45,25,000/-. The complainant, however, got the insurance cover valuing diesel generating set (Rs.26,00,000/-) and alternator (Rs.9,00,000/-), in all for Rs.35,00,000/-. Apparently, therefore, there is an element of under-insurance. There is merit in the contention of learned counsel for the insurer that the value of the item is always declared by the insured at the time of issuance of the insurance policy while the element of under-insurance is calculated by the insurer at the time of assessment of loss.Although on behalf of the complainant, it was contended that under-insurance, if any, must be calculated at the time of issuance of policy and could not be deducted at the time of assessment of the loss but we find it difficult to accept the same. The policy provides that if the sum insured is less than the amount required to be insured, the insurer will pay only in such proportion as the sum insured bears to the amount insured. In accordance with the said provision in the policy if the surveyor applied the pro-rata formula and deducted 25.71% from the loss so assessed i.e. Rs.3,71,509.50 from the sum payable as under-insurance, such deduction cannot be faulted.18. We are, thus, of the view that the National Commission did not commit any error in accepting the Surveyors report dated May 15, 2000 as the assessment made there-under is proper and in accordance with the provisions of the policy.19. By way of footnote, we may observe that claim of Rs.10,00,000/- made by the complainant for mental harassment is wholly misconceived and untenable. The complainant is a company and, therefore, claim for mental harassment is not legally permissible. It is only the natural person who can claim damages for mental harassment and not the corporate entity.20. In all, we find that the consideration of the matter by the National Commission does not suffer from any legal flaw justifying interference by us. | 0[ds]17. As per the invoice, the diesel generating set and the alternator was purchased by the complainant in the year 1997 for Rs.The complainant, however, got the insurance cover valuing diesel generating setin all for Rs.Apparently, therefore, there is an element ofThere is merit in the contention of learned counsel for the insurer that the value of the item is always declared by the insured at the time of issuance of the insurance policy while the element ofis calculated by the insurer at the time of assessment of loss.Although on behalf of the complainant, it was contended thatif any, must be calculated at the time of issuance of policy and could not be deducted at the time of assessment of the loss but we find it difficult to accept the same. The policy provides that if the sum insured is less than the amount required to be insured, the insurer will pay only in such proportion as the sum insured bears to the amount insured. In accordance with the said provision in the policy if the surveyor applied theformula and deducted 25.71% from the loss so assessed i.e. Rs.3,71,509.50 from the sum payable assuch deduction cannot be faulted.18. We are, thus, of the view that the National Commission did not commit any error in accepting the Surveyors report dated May 15, 2000 as the assessment made there-under is proper and in accordance with the provisions of the policy.19. By way of footnote, we may observe that claim of Rs.10,00,000/- made by the complainant for mental harassment is wholly misconceived and untenable. The complainant is a company and, therefore, claim for mental harassment is not legally permissible. It is only the natural person who can claim damages for mental harassment and not the corporate entity.20. In all, we find that the consideration of the matter by the National Commission does not suffer from any legal flaw justifying interference by us. | 0 | 4,094 | 350 | ### 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:
the last and final word. It is not that sacrosanct that it cannot be departed from; it is not conclusive. The approved surveyors report may be basis or foundation for settlement of a claim by the insurer in respect of the loss suffered by the insured but surely such report is neither binding upon the insurer nor insured." 14. The last surveyor in his report dated May 15, 2000 assessed the loss thus : I) Working of Claim under Invoice No.60/184989 dated 13.01.2000 of M/s.CDSS : We have allowed Labour Charges at Rs.80,000. Rs.80,000 Octroi Charge Rs.16,200 Freight Charges Rs.16,000 Transit Insurance Rs. 3,500 ------------------ Rs.1,15,700 Works Contract Tax 4% 4,628 -- ----------------- Rs.1,20,328 II) Working of Claim under Invoice No.60/184990 dated 31/1/2000 of M/s. CDSS: 1) "Kit -Crank Shaft" - Part No.AR 388113400K9 - 1 No. Rs.13,80,895. 52 (vide Page 1, Sr.No.1 of Subject invoice) Add 4% Work contract Tax Rs. 55,235.83 ------------------------ Rs.14,36,131.35 The subjects Kit -Crank Shaft is comprising of set Main Bearings & connecting Rod Bearings, the reasonable total value for them is taken at Rs.1,35,131.35. Less Reasonable cost for set of main bearings & Connecting rod bearings Rs. 1,35,131.35 ------------------------- - Rs.13,01,000/- Thus , bifurcation of costs are as under:- Cost of Crank Shaft Rs.13,01,000 Cost of set of main bearings & Connecting rod bearings Rs. 1,35,131 --------- ---------- Rs.14,36,131.35 A) Assessment for Crank Shaft: Cost for Crank Shaft Rs.13,01,000 Less additional policy excess for the Crank shaft as per endorsement ..20% Rs. 2,60,200 ------------------- Net Loss Rs.10,40,800 B) Assessment for set of main bearings & connecting rod bearings:- Cost for the set Rs. 1,35,131.35 Less reasonable depreciation ..50% Rs. 67,565.67 ------------------------ Net Loss after depreciation Rs. 67,565.67 2) Gears - 2 Nos. @ Rs.2587.69 - Part No.3177095 (Vide Page 6,Sr. No.91 of subject Invoice) Rs. 7,763.07 Add 4% work contract Tax Rs. 310.52 Rs. 8,073.59 Less reasonable depreciation 50% Rs. 4,036.79 Net Loss after depreciation Rs. 4,036.80 Thus, net loss after depreciation for (1) & (2)= A + B + Gears above for items under Invoice No.60/184990 Rs.11,12,402.47 III) Working of claim under Invoice No. 60/184991 Dt. 31/01/2000 of M/s.CDSS Core Coolers (Oil collers) - 4 Nos. @ 54,205.42 - Part No.3627295 Rs. 2,16,821.68 Add 4% Work contract Tax Rs. 8,672.87 This is not a Limited life item and hence there is no any depreciation applicable for it under the policy Net Loss Rs. 2,25,494.55 Thus net loss under all the three Invoice as per claim bill works out to I) + II) + III) Rs.14,58,225.02 Less reasonable Salvage at scrap value Rs. 13,225.02 Rs.14,45,000.00 Less under-insurance -25.71% vide page No.13 Rs. 3,71,509 .50 Rs.10,73,490.50 Say Rs.10,73,491 Less Policy Excess Rs. 26,000 Net assessed Loss Rs.10,47,491/-" 15. The parts which had suffered due to wear and tear on account of constant use, although replaced could not form part of claim for reimbursement under the terms of policy and, therefore, surveyor in its report dated May 15, 2000 cannot be said to have wrongly rejected such claim. It is true that surveyors report is not the last word but then there must be legitimate reasons for departing from such report. In our view, the complainant has failed to show any reason justifying rejection of surveyors report dated May 15, 2000. re : question (two) 16. In the Dictionary of Insurance (Second Edn.) by C. Bennett, "under-insurance" is explained thus: "under-insurance occurs when the amount of insurance is less than the full value of property insured and means that the insured pays a smaller premium than that required as the rate is fixed on the basis of full values being insured. It leads to partial loss claims being scaled down by average (qv.)." The expression "average" is explained thus: "In non-marine property insurance if a sum insured is `subject to average, and the sum insured is less than the value at risk at the time of loss, the claim will be reduced in the same proportion. The measure combats under-insurance." 17. As per the invoice, the diesel generating set and the alternator was purchased by the complainant in the year 1997 for Rs.45,25,000/-. The complainant, however, got the insurance cover valuing diesel generating set (Rs.26,00,000/-) and alternator (Rs.9,00,000/-), in all for Rs.35,00,000/-. Apparently, therefore, there is an element of under-insurance. There is merit in the contention of learned counsel for the insurer that the value of the item is always declared by the insured at the time of issuance of the insurance policy while the element of under-insurance is calculated by the insurer at the time of assessment of loss.Although on behalf of the complainant, it was contended that under-insurance, if any, must be calculated at the time of issuance of policy and could not be deducted at the time of assessment of the loss but we find it difficult to accept the same. The policy provides that if the sum insured is less than the amount required to be insured, the insurer will pay only in such proportion as the sum insured bears to the amount insured. In accordance with the said provision in the policy if the surveyor applied the pro-rata formula and deducted 25.71% from the loss so assessed i.e. Rs.3,71,509.50 from the sum payable as under-insurance, such deduction cannot be faulted.18. We are, thus, of the view that the National Commission did not commit any error in accepting the Surveyors report dated May 15, 2000 as the assessment made there-under is proper and in accordance with the provisions of the policy.19. By way of footnote, we may observe that claim of Rs.10,00,000/- made by the complainant for mental harassment is wholly misconceived and untenable. The complainant is a company and, therefore, claim for mental harassment is not legally permissible. It is only the natural person who can claim damages for mental harassment and not the corporate entity.20. In all, we find that the consideration of the matter by the National Commission does not suffer from any legal flaw justifying interference by us.
### Response:
0
### Explanation:
17. As per the invoice, the diesel generating set and the alternator was purchased by the complainant in the year 1997 for Rs.The complainant, however, got the insurance cover valuing diesel generating setin all for Rs.Apparently, therefore, there is an element ofThere is merit in the contention of learned counsel for the insurer that the value of the item is always declared by the insured at the time of issuance of the insurance policy while the element ofis calculated by the insurer at the time of assessment of loss.Although on behalf of the complainant, it was contended thatif any, must be calculated at the time of issuance of policy and could not be deducted at the time of assessment of the loss but we find it difficult to accept the same. The policy provides that if the sum insured is less than the amount required to be insured, the insurer will pay only in such proportion as the sum insured bears to the amount insured. In accordance with the said provision in the policy if the surveyor applied theformula and deducted 25.71% from the loss so assessed i.e. Rs.3,71,509.50 from the sum payable assuch deduction cannot be faulted.18. We are, thus, of the view that the National Commission did not commit any error in accepting the Surveyors report dated May 15, 2000 as the assessment made there-under is proper and in accordance with the provisions of the policy.19. By way of footnote, we may observe that claim of Rs.10,00,000/- made by the complainant for mental harassment is wholly misconceived and untenable. The complainant is a company and, therefore, claim for mental harassment is not legally permissible. It is only the natural person who can claim damages for mental harassment and not the corporate entity.20. In all, we find that the consideration of the matter by the National Commission does not suffer from any legal flaw justifying interference by us.
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Nabin Kumar Sahu Vs. Indian Oil Corporation and Ors | 1. Leave granted. This appeal is directed against the judgment and order dated 27.03.2012 passed by the High Court of Orissa, Cuttack whereby the High Court dismissed the Writ Petition filed by the Respondent No. 4 herein and held that the award of LPG Distributorship in favour of Appellant herein is bad in law and directed Respondent Nos. 1 to 3 herein to re-invite the tender in question and re-do the selection process and thereafter award the distributorship in favour of the eligible persons.2. The facts, in brief, are as follows:i) On 20.10.2009, an advertisement was published by the Indian Oil Corporation Ltd. (for short the IOCL) in different newspapers inviting applications for awarding LPG Distributorship under the Rajiv Gandhi Gramin LPG Vitrak Scheme (for short the Scheme) among different locations in the State of Orissa and village Laikera in the District of Jharsuguda, was one of them.ii) IOCL also published a Brochure on Selection of the Scheme prescribing Eligibility Criteria for all the categories.iii) After scrutiny of the applications received, IOCL found five candidates having qualified for draw for Distributorship under the said Scheme, which included the Appellant herein and Respondent No. 4.iv) The successful applications participated in the draw of lot and Respondent No. 4 herein was declared as a selected candidate for the Distributorship.v) In terms of the relevant clauses of the Scheme, field verification was carried out by the officer concerned and found that the land offered by Respondent No. 4 did not meet the minimum required dimension (24 m x 20 m) and submitted a report on the basis of which, IOCL decided to cancel the candidature of Respondent No. 4 and informed him about the rejection of his candidature.vi) The IOCL in terms of para 6.8 of the Scheme decided to hold re-draw for allotment of Distributorship and communicated its decision to the Appellant herein.vii) In the meantime, Respondent No. 4 herein filed a Writ Petition before the High Court against IOCL praying for allotment of Distributorship to him based on the previous draw and for quashing of lottery scheduled to be held.viii) The High Court directed that further process of allotment of Distributorship in favour of eligible candidates shall be subject to the outcome of the Writ Petition.ix) The IOCL conducted re-draw with respect to remaining four eligible candidates and the Appellant herein was declared successful. After completion of field verification by concerned Official in terms of the Scheme, the Letter of Intent was issued in favour of the Appellant herein.x) The Appellant herein filed Intervention Application before the High Court which was allowed and he was accordingly impleaded as party Respondent before the High Court.xi) After hearing the parties, the High Court held that the award of dealership by IOCL in favour of the Appellant herein is bad in law as he was not a permanent resident of Village Laikera. The High Court further held that the Respondent No. 4 herein also did not fulfill the eligibility criteria and hence dismissed the writ petition filed by him and directing the IOCL to re-invite the tender in question and re-do the selection process and thereafter, award the Distributorship in favour of eligible persons.xii) Being aggrieved, the Appellant preferred this appeal, by way of special leave.3. We have heard the learned Counsel appearing for the parties.4. Learned Counsel appearing for the Appellant submits that the High Court relying upon a judgment of this Court in Bhagwan Dass and Anr. v. Kamal Abrol and Ors. (2005) 11 SCC 66 : (AIR 2005 SC 2583 ) has misread and misunderstood the facts of the judgment to the facts of the case on hand and passed the impugned judgment and prays for setting aside the same. Per contra, learned Counsel appearing for the Respondent No. 4 submits that consequent upon his selection by lottery, the grant of Distributorship be awarded to him.5. The only question which arises for our consideration is whether in the given facts of this case, the Appellant is entitled for grant of LPG Distributorship in respect of village Laikera, Jharsguda District under the said Scheme.6. We have perused the impugned judgment passed by the High Court as well as the material available on record i.e. the advertisement and copy of brochure mentioning the eligibility criteria issued by the IOCL. We have also considered the affidavit filed on behalf of the IOCL.7. After considering the facts of the case in question and taking into account Clause 3(b) of the advertisement which states that the applicant should be a resident of the town/village which is a condition precedent for appointment under the Scheme, we find that the Appellant has fulfilled the eligibility criteria as required in accordance with the advertisement published. Furthermore, it would be evident from the affidavit of IOCL, they supported the claim of the Appellant.8. It is also pertinent to mention that the Appellant herein is an "ordinary resident" (de-facto resident) of Village Laikera actually which is evident from the certificate issued by the concerned Tahsildar. This fact has been reiterated and reconfirmed on an enquiry made by the IOCL and moreover the Appellant herein is a registered voter of village Laikera. However, the Appellant herein has been shown in the resident certificate being a "permanent resident" (de jure resident) of Village Kulemura, for the reasons that he has certain ancestral properties in that Village.9. In our opinion, the High Court failed to appreciate the fact that the Distributorship in the present case has been advertised at the place of ordinary resident of the applicant i.e. Village Laikera and the Appellant was eligible and was rightly awarded the dealership by the IOCL. | 1[ds]6. We have perused the impugned judgment passed by the High Court as well as the material available on record i.e. the advertisement and copy of brochure mentioning the eligibility criteria issued by the IOCL. We have also considered the affidavit filed on behalf of the IOCL7. After considering the facts of the case in question and taking into account Clause 3(b) of the advertisement which states that the applicant should be a resident of the town/village which is a condition precedent for appointment under the Scheme, we find that the Appellant has fulfilled the eligibility criteria as required in accordance with the advertisement published. Furthermore, it would be evident from the affidavit of IOCL, they supported the claim of the Appellant8. It is also pertinent to mention that the Appellant herein is an "ordinary resident" (de-facto resident) of Village Laikera actually which is evident from the certificate issued by the concerned Tahsildar. This fact has been reiterated and reconfirmed on an enquiry made by the IOCL and moreover the Appellant herein is a registered voter of village Laikera. However, the Appellant herein has been shown in the resident certificate being a "permanent resident" (de jure resident) of Village Kulemura, for the reasons that he has certain ancestral properties in that Village9. In our opinion, the High Court failed to appreciate the fact that the Distributorship in the present case has been advertised at the place of ordinary resident of the applicant i.e. Village Laikera and the Appellant was eligible and was rightly awarded the dealership by the IOCL. | 1 | 1,030 | 291 | ### 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:
1. Leave granted. This appeal is directed against the judgment and order dated 27.03.2012 passed by the High Court of Orissa, Cuttack whereby the High Court dismissed the Writ Petition filed by the Respondent No. 4 herein and held that the award of LPG Distributorship in favour of Appellant herein is bad in law and directed Respondent Nos. 1 to 3 herein to re-invite the tender in question and re-do the selection process and thereafter award the distributorship in favour of the eligible persons.2. The facts, in brief, are as follows:i) On 20.10.2009, an advertisement was published by the Indian Oil Corporation Ltd. (for short the IOCL) in different newspapers inviting applications for awarding LPG Distributorship under the Rajiv Gandhi Gramin LPG Vitrak Scheme (for short the Scheme) among different locations in the State of Orissa and village Laikera in the District of Jharsuguda, was one of them.ii) IOCL also published a Brochure on Selection of the Scheme prescribing Eligibility Criteria for all the categories.iii) After scrutiny of the applications received, IOCL found five candidates having qualified for draw for Distributorship under the said Scheme, which included the Appellant herein and Respondent No. 4.iv) The successful applications participated in the draw of lot and Respondent No. 4 herein was declared as a selected candidate for the Distributorship.v) In terms of the relevant clauses of the Scheme, field verification was carried out by the officer concerned and found that the land offered by Respondent No. 4 did not meet the minimum required dimension (24 m x 20 m) and submitted a report on the basis of which, IOCL decided to cancel the candidature of Respondent No. 4 and informed him about the rejection of his candidature.vi) The IOCL in terms of para 6.8 of the Scheme decided to hold re-draw for allotment of Distributorship and communicated its decision to the Appellant herein.vii) In the meantime, Respondent No. 4 herein filed a Writ Petition before the High Court against IOCL praying for allotment of Distributorship to him based on the previous draw and for quashing of lottery scheduled to be held.viii) The High Court directed that further process of allotment of Distributorship in favour of eligible candidates shall be subject to the outcome of the Writ Petition.ix) The IOCL conducted re-draw with respect to remaining four eligible candidates and the Appellant herein was declared successful. After completion of field verification by concerned Official in terms of the Scheme, the Letter of Intent was issued in favour of the Appellant herein.x) The Appellant herein filed Intervention Application before the High Court which was allowed and he was accordingly impleaded as party Respondent before the High Court.xi) After hearing the parties, the High Court held that the award of dealership by IOCL in favour of the Appellant herein is bad in law as he was not a permanent resident of Village Laikera. The High Court further held that the Respondent No. 4 herein also did not fulfill the eligibility criteria and hence dismissed the writ petition filed by him and directing the IOCL to re-invite the tender in question and re-do the selection process and thereafter, award the Distributorship in favour of eligible persons.xii) Being aggrieved, the Appellant preferred this appeal, by way of special leave.3. We have heard the learned Counsel appearing for the parties.4. Learned Counsel appearing for the Appellant submits that the High Court relying upon a judgment of this Court in Bhagwan Dass and Anr. v. Kamal Abrol and Ors. (2005) 11 SCC 66 : (AIR 2005 SC 2583 ) has misread and misunderstood the facts of the judgment to the facts of the case on hand and passed the impugned judgment and prays for setting aside the same. Per contra, learned Counsel appearing for the Respondent No. 4 submits that consequent upon his selection by lottery, the grant of Distributorship be awarded to him.5. The only question which arises for our consideration is whether in the given facts of this case, the Appellant is entitled for grant of LPG Distributorship in respect of village Laikera, Jharsguda District under the said Scheme.6. We have perused the impugned judgment passed by the High Court as well as the material available on record i.e. the advertisement and copy of brochure mentioning the eligibility criteria issued by the IOCL. We have also considered the affidavit filed on behalf of the IOCL.7. After considering the facts of the case in question and taking into account Clause 3(b) of the advertisement which states that the applicant should be a resident of the town/village which is a condition precedent for appointment under the Scheme, we find that the Appellant has fulfilled the eligibility criteria as required in accordance with the advertisement published. Furthermore, it would be evident from the affidavit of IOCL, they supported the claim of the Appellant.8. It is also pertinent to mention that the Appellant herein is an "ordinary resident" (de-facto resident) of Village Laikera actually which is evident from the certificate issued by the concerned Tahsildar. This fact has been reiterated and reconfirmed on an enquiry made by the IOCL and moreover the Appellant herein is a registered voter of village Laikera. However, the Appellant herein has been shown in the resident certificate being a "permanent resident" (de jure resident) of Village Kulemura, for the reasons that he has certain ancestral properties in that Village.9. In our opinion, the High Court failed to appreciate the fact that the Distributorship in the present case has been advertised at the place of ordinary resident of the applicant i.e. Village Laikera and the Appellant was eligible and was rightly awarded the dealership by the IOCL.
### Response:
1
### Explanation:
6. We have perused the impugned judgment passed by the High Court as well as the material available on record i.e. the advertisement and copy of brochure mentioning the eligibility criteria issued by the IOCL. We have also considered the affidavit filed on behalf of the IOCL7. After considering the facts of the case in question and taking into account Clause 3(b) of the advertisement which states that the applicant should be a resident of the town/village which is a condition precedent for appointment under the Scheme, we find that the Appellant has fulfilled the eligibility criteria as required in accordance with the advertisement published. Furthermore, it would be evident from the affidavit of IOCL, they supported the claim of the Appellant8. It is also pertinent to mention that the Appellant herein is an "ordinary resident" (de-facto resident) of Village Laikera actually which is evident from the certificate issued by the concerned Tahsildar. This fact has been reiterated and reconfirmed on an enquiry made by the IOCL and moreover the Appellant herein is a registered voter of village Laikera. However, the Appellant herein has been shown in the resident certificate being a "permanent resident" (de jure resident) of Village Kulemura, for the reasons that he has certain ancestral properties in that Village9. In our opinion, the High Court failed to appreciate the fact that the Distributorship in the present case has been advertised at the place of ordinary resident of the applicant i.e. Village Laikera and the Appellant was eligible and was rightly awarded the dealership by the IOCL.
|
State Of Tamil Nadu Vs. M/S Burmah Shell Oil Storage & Distributingco. Of India Ltd | 1967 SC 1066 ) (supra) this Court had observed at p. 9 that the miscellaneous, old and discarded items such as stores, machinery, iron scrap, cans, boxes, cotton ropes, rags etc., were held to be not part of or incidental to the main business of selling textiles. This contention in our view does not take into account the context in which that finding had been given. In that case, as already pointed out, what was held under the analogous Bombay Sales Tax Act which was similar to that under the Madras Sales Tax Act prior to its amendment in 1964, the sale of scrap does not necessarily lead to an inference that business which was an element in determining the liability of the dealer for the turnover in such goods was intended to be carried on in those goods. This Court had observed, it cannot be presumed, that when the goods were acquired there was an intention to carry on business in those discarded material nor are the discarded goods by products or subsidiary products or are produced in the course of manufacturing process; that they are either fixed assets of the company or are goods which are incidental to the acquisition or use of stores or commodities consumed in the factory and that when these go into the profit and loss account of the business and may indirectly be said to reduce the cost of production of the principal item, the disposal of those goods on the account cannot be said to be part of or incidental to the main business of selling textiles. As the scrap in that case was not held to be incidental to the acquisition or use of stores or commodities consumed in the factory, the turnover was not included but in the case of caustic liquor which is regularly and continuously accumulated in the tanks in the process of mercerisation of cloth, this Court held that that being a waste material it has still a market amongst other manufacturers or launders as by-products or subsidiary products in the course of manufacture, and the sale thereof is incidental to the business of the company. 7. In the view we hold the scrap sold is certainly connected with the business of the company and the turnover in respect of this commodity is liable to tax. It cannot also be said that the turnover in respect of the sale of the assessees advertisement material at cost price or less than cost price is not connected with the business of the assessee. Calendars, wallets and key chains are all given by the dealers to their customers for purposes of maintaining and increasing the sales of the products of the assessee and is therefore connected with the business. What the assessee is doing is to facilitate the dealers to acquire at their cost such advertising material of a uniform type approved by the assessee company which instead of allowing each of them to have these separately printed or manufactured, itself undertook to do so and supplied them to its dealers. The supply of such material is in our view being connected with the business is liable to be included in the turnover of the assessee. 8. It is pointed out by the learned advocate for the respondent in the first of the appeals that under G. O. 2238 dated 1st September, 1964 the canteen sales are exempt and notwithstanding the fact that the assessee in that appeal has complied with the terms and conditions of that G. O. the canteen sales have not been excluded. The G. O. to which reference it made is in the following terms :-"III No. 336 of 1964.- In exercise of the powers conferred by Section 17 of the Madras General Sales Tax Act, 1959 (Madras Act I of 1959), the Governor of Madras hereby exempts, with effect on and from the 1st September, 1964, the tax payable under the said Act, on the sales by all canteens run by an employer or by the employees on co-operative basis on behalf of the employer, under a statutory obligation without profit motive, provided that the employer subsidises at least twenty-five percent of the total expenses incurred in running the canteen." Under this G. O. what has to be established is that the assessee has subsidised at least 25 per cent of the total expenses in running the canteen. The Sales Tax Officer disallowed this amount because the assessee had not produced the accounts. In the memorandum of appeal to the Appellate Assistant Commissioner the assessee characterised this statement as unfair as the Commercial Tax Officer was invited to state what other records he required but he did not raise this point during the checking of the accounts. In support of this grievance a letter of the assessees advocate to the officer was referred. In that letter it was stated that out of the turnover of Rs. 35,974.96 in respect of the canteen sales, the assessee had supplied free tea to the staff of the value of Rupees 13,740.37. It was further mentioned in that letter that the assessee bears the expenses towards salaries and amenities provided for the employees in the canteen as also the the electric charges and corporation taxes. It also provides free of charge all equipment including furniture and fittings and a rent free building for this canteen. It therefore prayed that the turnover be exempted under the aforesaid G.O. Neither the Appellate Assistant Commissioner nor the Sales Tax Tribunal considered this aspect nor did the assessee pray for producing any evidence before them. We think as the assessee had sufficiently brought to the notice of the Sales Tax Officer its claim and was willing to produce accounts it should be permitted to do so. The Sales Tax Tribunal will give an opportunity to the assessee to produce evidence to show under the terms of G. O. 2238 it is entitled to exemption from the turnover in respect of the canteen sales. | 0[ds]Under this G. O. what has to be established is that the assessee has subsidised at least 25 per cent of the total expenses in running the canteen. The Sales Tax Officer disallowed this amount because the assessee had not produced the accounts. In the memorandum of appeal to the Appellate Assistant Commissioner the assessee characterised this statement as unfair as the Commercial Tax Officer was invited to state what other records he required but he did not raise this point during the checking of the accounts. In support of this grievance a letter of the assessees advocate to the officer was referred. In that letter it was stated that out of the turnover of Rs. 35,974.96 in respect of the canteen sales, the assessee had supplied free tea to the staff of the value of Rupees 13,740.37. It was further mentioned in that letter that the assessee bears the expenses towards salaries and amenities provided for the employees in the canteen as also the the electric charges and corporation taxes. It also provides free of charge all equipment including furniture and fittings and a rent free building for this canteen. It therefore prayed that the turnover be exempted under the aforesaid G.O. Neither the Appellate Assistant Commissioner nor the Sales Tax Tribunal considered this aspect nor did the assessee pray for producing any evidence before them. We think as the assessee had sufficiently brought to the notice of the Sales Tax Officer its claim and was willing to produce accounts it should be permitted to do so. The Sales Tax Tribunal will give an opportunity to the assessee to produce evidence to show under the terms of G. O. 2238 it is entitled to exemption from the turnover in respect of the canteen sales9. In the result both the appeals are dismissed in respect of levy of penalty. They are partly allowed so far as they are related to scrap in respect of the second period, 1-9-64 to 31-3-65 and dismissed in respect of the Ist period, 1-4-64 to 31-8-64. In so far as appeal 2119 of 1969 is concerned it is also partly allowed in respect of the advertisement materials for the period 1-9-64 to 31-3-65 and dismissed in respect of the Ist period, 1-4-64 to 31-8-64 and with respect of canteen sales the appeal is dismissed in respect of the Ist period, 1-4-64 to 31-8-64 and allowed in respect of the second period 1-9-64 to 31-3-65 and the matter remanded with the direction given above. There will be no order as to costs in both these appealsUnder this G. O. what has to be established is that the assessee has subsidised at least 25 per cent of the total expenses in running the canteen. The Sales Tax Officer disallowed this amount because the assessee had not produced the accounts. In the memorandum of appeal to the Appellate Assistant Commissioner the assessee characterised this statement as unfair as the Commercial Tax Officer was invited to state what other records he required but he did not raise this point during the checking of the accounts. In support of this grievance a letter of the assessees advocate to the officer was referred. In that letter it was stated that out of the turnover of Rs. 35,974.96 in respect of the canteen sales, the assessee had supplied free tea to the staff of the value of Rupees 13,740.37. It was further mentioned in that letter that the assessee bears the expenses towards salaries and amenities provided for the employees in the canteen as also the the electric charges and corporation taxes. It also provides free of charge all equipment including furniture and fittings and a rent free building for this canteen. It therefore prayed that the turnover be exempted under the aforesaid G.O. Neither the Appellate Assistant Commissioner nor the Sales Tax Tribunal considered this aspect nor did the assessee pray for producing any evidence before them. We think as the assessee had sufficiently brought to the notice of the Sales Tax Officer its claim and was willing to produce accounts it should be permitted to do so. The Sales Tax Tribunal will give an opportunity to the assessee to produce evidence to show under the terms of G. O. 2238 it is entitled to exemption from the turnover in respect of the canteen sales9. In the result both the appeals are dismissed in respect of levy of penalty. They are partly allowed so far as they are related to scrap in respect of the second period, 1-9-64 to 31-3-65 and dismissed in respect of the Ist period, 1-4-64 to 31-8-64. In so far as appeal 2119 of 1969 is concerned it is also partly allowed in respect of the advertisement materials for the period 1-9-64 to 31-3-65 and dismissed in respect of the Ist period, 1-4-64 to 31-8-64 and with respect of canteen sales the appeal is dismissed in respect of the Ist period, 1-4-64 to 31-8-64 and allowed in respect of the second period 1-9-64 to 31-3-65 and the matter remanded with the direction given above. There will be no order as to costs in both these | 0 | 4,182 | 904 | ### 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:
1967 SC 1066 ) (supra) this Court had observed at p. 9 that the miscellaneous, old and discarded items such as stores, machinery, iron scrap, cans, boxes, cotton ropes, rags etc., were held to be not part of or incidental to the main business of selling textiles. This contention in our view does not take into account the context in which that finding had been given. In that case, as already pointed out, what was held under the analogous Bombay Sales Tax Act which was similar to that under the Madras Sales Tax Act prior to its amendment in 1964, the sale of scrap does not necessarily lead to an inference that business which was an element in determining the liability of the dealer for the turnover in such goods was intended to be carried on in those goods. This Court had observed, it cannot be presumed, that when the goods were acquired there was an intention to carry on business in those discarded material nor are the discarded goods by products or subsidiary products or are produced in the course of manufacturing process; that they are either fixed assets of the company or are goods which are incidental to the acquisition or use of stores or commodities consumed in the factory and that when these go into the profit and loss account of the business and may indirectly be said to reduce the cost of production of the principal item, the disposal of those goods on the account cannot be said to be part of or incidental to the main business of selling textiles. As the scrap in that case was not held to be incidental to the acquisition or use of stores or commodities consumed in the factory, the turnover was not included but in the case of caustic liquor which is regularly and continuously accumulated in the tanks in the process of mercerisation of cloth, this Court held that that being a waste material it has still a market amongst other manufacturers or launders as by-products or subsidiary products in the course of manufacture, and the sale thereof is incidental to the business of the company. 7. In the view we hold the scrap sold is certainly connected with the business of the company and the turnover in respect of this commodity is liable to tax. It cannot also be said that the turnover in respect of the sale of the assessees advertisement material at cost price or less than cost price is not connected with the business of the assessee. Calendars, wallets and key chains are all given by the dealers to their customers for purposes of maintaining and increasing the sales of the products of the assessee and is therefore connected with the business. What the assessee is doing is to facilitate the dealers to acquire at their cost such advertising material of a uniform type approved by the assessee company which instead of allowing each of them to have these separately printed or manufactured, itself undertook to do so and supplied them to its dealers. The supply of such material is in our view being connected with the business is liable to be included in the turnover of the assessee. 8. It is pointed out by the learned advocate for the respondent in the first of the appeals that under G. O. 2238 dated 1st September, 1964 the canteen sales are exempt and notwithstanding the fact that the assessee in that appeal has complied with the terms and conditions of that G. O. the canteen sales have not been excluded. The G. O. to which reference it made is in the following terms :-"III No. 336 of 1964.- In exercise of the powers conferred by Section 17 of the Madras General Sales Tax Act, 1959 (Madras Act I of 1959), the Governor of Madras hereby exempts, with effect on and from the 1st September, 1964, the tax payable under the said Act, on the sales by all canteens run by an employer or by the employees on co-operative basis on behalf of the employer, under a statutory obligation without profit motive, provided that the employer subsidises at least twenty-five percent of the total expenses incurred in running the canteen." Under this G. O. what has to be established is that the assessee has subsidised at least 25 per cent of the total expenses in running the canteen. The Sales Tax Officer disallowed this amount because the assessee had not produced the accounts. In the memorandum of appeal to the Appellate Assistant Commissioner the assessee characterised this statement as unfair as the Commercial Tax Officer was invited to state what other records he required but he did not raise this point during the checking of the accounts. In support of this grievance a letter of the assessees advocate to the officer was referred. In that letter it was stated that out of the turnover of Rs. 35,974.96 in respect of the canteen sales, the assessee had supplied free tea to the staff of the value of Rupees 13,740.37. It was further mentioned in that letter that the assessee bears the expenses towards salaries and amenities provided for the employees in the canteen as also the the electric charges and corporation taxes. It also provides free of charge all equipment including furniture and fittings and a rent free building for this canteen. It therefore prayed that the turnover be exempted under the aforesaid G.O. Neither the Appellate Assistant Commissioner nor the Sales Tax Tribunal considered this aspect nor did the assessee pray for producing any evidence before them. We think as the assessee had sufficiently brought to the notice of the Sales Tax Officer its claim and was willing to produce accounts it should be permitted to do so. The Sales Tax Tribunal will give an opportunity to the assessee to produce evidence to show under the terms of G. O. 2238 it is entitled to exemption from the turnover in respect of the canteen sales.
### Response:
0
### Explanation:
Under this G. O. what has to be established is that the assessee has subsidised at least 25 per cent of the total expenses in running the canteen. The Sales Tax Officer disallowed this amount because the assessee had not produced the accounts. In the memorandum of appeal to the Appellate Assistant Commissioner the assessee characterised this statement as unfair as the Commercial Tax Officer was invited to state what other records he required but he did not raise this point during the checking of the accounts. In support of this grievance a letter of the assessees advocate to the officer was referred. In that letter it was stated that out of the turnover of Rs. 35,974.96 in respect of the canteen sales, the assessee had supplied free tea to the staff of the value of Rupees 13,740.37. It was further mentioned in that letter that the assessee bears the expenses towards salaries and amenities provided for the employees in the canteen as also the the electric charges and corporation taxes. It also provides free of charge all equipment including furniture and fittings and a rent free building for this canteen. It therefore prayed that the turnover be exempted under the aforesaid G.O. Neither the Appellate Assistant Commissioner nor the Sales Tax Tribunal considered this aspect nor did the assessee pray for producing any evidence before them. We think as the assessee had sufficiently brought to the notice of the Sales Tax Officer its claim and was willing to produce accounts it should be permitted to do so. The Sales Tax Tribunal will give an opportunity to the assessee to produce evidence to show under the terms of G. O. 2238 it is entitled to exemption from the turnover in respect of the canteen sales9. In the result both the appeals are dismissed in respect of levy of penalty. They are partly allowed so far as they are related to scrap in respect of the second period, 1-9-64 to 31-3-65 and dismissed in respect of the Ist period, 1-4-64 to 31-8-64. In so far as appeal 2119 of 1969 is concerned it is also partly allowed in respect of the advertisement materials for the period 1-9-64 to 31-3-65 and dismissed in respect of the Ist period, 1-4-64 to 31-8-64 and with respect of canteen sales the appeal is dismissed in respect of the Ist period, 1-4-64 to 31-8-64 and allowed in respect of the second period 1-9-64 to 31-3-65 and the matter remanded with the direction given above. There will be no order as to costs in both these appealsUnder this G. O. what has to be established is that the assessee has subsidised at least 25 per cent of the total expenses in running the canteen. The Sales Tax Officer disallowed this amount because the assessee had not produced the accounts. In the memorandum of appeal to the Appellate Assistant Commissioner the assessee characterised this statement as unfair as the Commercial Tax Officer was invited to state what other records he required but he did not raise this point during the checking of the accounts. In support of this grievance a letter of the assessees advocate to the officer was referred. In that letter it was stated that out of the turnover of Rs. 35,974.96 in respect of the canteen sales, the assessee had supplied free tea to the staff of the value of Rupees 13,740.37. It was further mentioned in that letter that the assessee bears the expenses towards salaries and amenities provided for the employees in the canteen as also the the electric charges and corporation taxes. It also provides free of charge all equipment including furniture and fittings and a rent free building for this canteen. It therefore prayed that the turnover be exempted under the aforesaid G.O. Neither the Appellate Assistant Commissioner nor the Sales Tax Tribunal considered this aspect nor did the assessee pray for producing any evidence before them. We think as the assessee had sufficiently brought to the notice of the Sales Tax Officer its claim and was willing to produce accounts it should be permitted to do so. The Sales Tax Tribunal will give an opportunity to the assessee to produce evidence to show under the terms of G. O. 2238 it is entitled to exemption from the turnover in respect of the canteen sales9. In the result both the appeals are dismissed in respect of levy of penalty. They are partly allowed so far as they are related to scrap in respect of the second period, 1-9-64 to 31-3-65 and dismissed in respect of the Ist period, 1-4-64 to 31-8-64. In so far as appeal 2119 of 1969 is concerned it is also partly allowed in respect of the advertisement materials for the period 1-9-64 to 31-3-65 and dismissed in respect of the Ist period, 1-4-64 to 31-8-64 and with respect of canteen sales the appeal is dismissed in respect of the Ist period, 1-4-64 to 31-8-64 and allowed in respect of the second period 1-9-64 to 31-3-65 and the matter remanded with the direction given above. There will be no order as to costs in both these
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Commissioner of Customs and Central Excise Vadodara – I Vs. M/s Jyoti Limited and Ors | M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the Customs, Excise and Service Tax Appellate Tribunal, Ahmedabad passed in orders in Appeal Nos. 3085 to 3087 of 2007 by which the learned Tribunal has allowed the said appeals preferred by the respondent assessee (by a majority) and set aside the demand of duty and penalty as per the Revisional Authoritys order, the Revenue has preferred the present appeals. 2. The dispute is with respect to the period July, 1997 to December, 2000. A show cause notice dated 04.06.2001 was issued against the respondent – assessee, proposing demand of duty (service tax demand) of Rs.1,84,75,749/- and proposing the imposition of penalty on the grounds, inter alia, that the assessee is providing the services to its customers as consulting engineer and therefore liable to pay the service tax. 2.1 At this stage, it is required to be noted that the respondent - assessee company was engaged in the manufacture of mechanical, engineering and electrical goods falling under Chapters 84 and 85 of Central Excise Tariff Act, 1985. In respect of certain buyers, the assessee merely sold their products. In respect of certain buyers, at their request, the assessee had undertaken, at the customers site, certain activities like construction, civil works including installation, erection and commissioning of machinery to the specific requirements of the customers. They collected amounts billed variedly as charges towards erection, testing and calibrations, installation and commissioning, construction activities etc. In respect of some other buyers, they procured some accessories and miscellaneous goods from other manufacturers or open market and in such cases collected the price from their customers for supply of the said bought out items. According to the Revenue the assessee collected a sum of Rs.36,95,14,983/-towards post clearing activities relating to the aforesaid period on which the assessee was liable to pay the service tax of Rs.1,84,75,749/-. The original authority dropped the show cause notice on considering the various contracts and opined that the services rendered by the assessee cannot be said to be rendering services of consulting engineering. 2.2 The Commissioner took up the order by way of suo moto revision and held that the services rendered by the assessee can be said to be rendering of services of the nature of advice, consultancy or technical assistance while executing the works contract and therefore can be said to be services of consulting engineer and were liable to pay the service tax. 2.3 The order passed by the Commissioner was the subject matter of appeals before the learned Tribunal. There was a difference of opinion between the members of the Tribunal. The Member (Technical) confirmed the demand of duty and interest and also the penalty. However, the Member (Judicial) disagreed with the view taken by the Member (Technical) and was of the opinion that the Deputy Commissioner was justified in dropping the proceedings/show cause notice/demand. The matter was referred to the third member. The third member opined to set aside the order passed by the Commissioner in suo moto revision and held that the services rendered by the assessee cannot be said to be services rendered as Consulting Engineer and therefore not liable to pay the service tax. 2.4 Feeling aggrieved and dissatisfied with the majority view/decision of the Tribunal holding that the services rendered by the assessee cannot be said to be Consulting Engineer and therefore the assessee is liable to pay service tax, the Revenue has preferred the present appeals. 3. We have heard Shri A.K. Panda, learned Senior Advocate appearing on behalf of the Revenue and Mrs. Nisha Bagchi, learned Advocate, appearing on behalf of the assessee - respondents. We have gone through and considered the Order-in-Original passed by the Deputy Commissioner dropping the demand and show cause notice as well as the order passed by the learned Commissioner passed in Revision/Review and also the impugned orders passed by the Tribunal. 4. Having gone through the order passed by the Commissioner confirming the demand of service tax it appears that the Commissioner confirmed the demand of service tax merely on the ground that services rendered by the assessee can be said to be services rendered as Consulting Engineer and therefore liable to pay the service tax. However, considering the various services rendered by the assessee like erection/installation/commissioning of goods at customers site and incidentally they may also be providing the services of drawing, design etc., it cannot be said that the services rendered by the assessee was as a consulting engineer. The contract can be said to be works contract. Hence, the assessee cannot be said to be rendering the services as a consulting engineer and therefore liable to pay the service tax. Therefore, once, the assessee at the relevant time cannot be said to be consulting engineer and/or rendering services as a consulting engineering the assessee is not liable to pay the service tax on the works contract or the contract rendering services as consulting engineer for the period under consideration namely July, 1997 to December, 2000. No error has been committed by the learned Tribunal in setting aside the order passed by the Commissioner and restoring the Order-in-Original passed by the Deputy Commissioner dropping the show cause notice and demand of service tax and penalty considering the nature of services rendered by the assessee. We are in complete agreement with the view taken by the Tribunal. | 0[ds]We have gone through and considered the Order-in-Original passed by the Deputy Commissioner dropping the demand and show cause notice as well as the order passed by the learned Commissioner passed in Revision/Review and also the impugned orders passed by the Tribunal.4. Having gone through the order passed by the Commissioner confirming the demand of service tax it appears that the Commissioner confirmed the demand of service tax merely on the ground that services rendered by the assessee can be said to be services rendered as Consulting Engineer and therefore liable to pay the service tax. However, considering the various services rendered by the assessee like erection/installation/commissioning of goods at customers site and incidentally they may also be providing the services of drawing, design etc., it cannot be said that the services rendered by the assessee was as a consulting engineer. The contract can be said to be works contract. Hence, the assessee cannot be said to be rendering the services as a consulting engineer and therefore liable to pay the service tax. Therefore, once, the assessee at the relevant time cannot be said to be consulting engineer and/or rendering services as a consulting engineering the assessee is not liable to pay the service tax on the works contract or the contract rendering services as consulting engineer for the period under consideration namely July, 1997 to December, 2000. No error has been committed by the learned Tribunal in setting aside the order passed by the Commissioner and restoring the Order-in-Original passed by the Deputy Commissioner dropping the show cause notice and demand of service tax and penalty considering the nature of services rendered by the assessee. We are in complete agreement with the view taken by the Tribunal. | 0 | 990 | 311 | ### 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:
M. R. Shah, J. 1. Feeling aggrieved and dissatisfied with the impugned common judgment and order passed by the Customs, Excise and Service Tax Appellate Tribunal, Ahmedabad passed in orders in Appeal Nos. 3085 to 3087 of 2007 by which the learned Tribunal has allowed the said appeals preferred by the respondent assessee (by a majority) and set aside the demand of duty and penalty as per the Revisional Authoritys order, the Revenue has preferred the present appeals. 2. The dispute is with respect to the period July, 1997 to December, 2000. A show cause notice dated 04.06.2001 was issued against the respondent – assessee, proposing demand of duty (service tax demand) of Rs.1,84,75,749/- and proposing the imposition of penalty on the grounds, inter alia, that the assessee is providing the services to its customers as consulting engineer and therefore liable to pay the service tax. 2.1 At this stage, it is required to be noted that the respondent - assessee company was engaged in the manufacture of mechanical, engineering and electrical goods falling under Chapters 84 and 85 of Central Excise Tariff Act, 1985. In respect of certain buyers, the assessee merely sold their products. In respect of certain buyers, at their request, the assessee had undertaken, at the customers site, certain activities like construction, civil works including installation, erection and commissioning of machinery to the specific requirements of the customers. They collected amounts billed variedly as charges towards erection, testing and calibrations, installation and commissioning, construction activities etc. In respect of some other buyers, they procured some accessories and miscellaneous goods from other manufacturers or open market and in such cases collected the price from their customers for supply of the said bought out items. According to the Revenue the assessee collected a sum of Rs.36,95,14,983/-towards post clearing activities relating to the aforesaid period on which the assessee was liable to pay the service tax of Rs.1,84,75,749/-. The original authority dropped the show cause notice on considering the various contracts and opined that the services rendered by the assessee cannot be said to be rendering services of consulting engineering. 2.2 The Commissioner took up the order by way of suo moto revision and held that the services rendered by the assessee can be said to be rendering of services of the nature of advice, consultancy or technical assistance while executing the works contract and therefore can be said to be services of consulting engineer and were liable to pay the service tax. 2.3 The order passed by the Commissioner was the subject matter of appeals before the learned Tribunal. There was a difference of opinion between the members of the Tribunal. The Member (Technical) confirmed the demand of duty and interest and also the penalty. However, the Member (Judicial) disagreed with the view taken by the Member (Technical) and was of the opinion that the Deputy Commissioner was justified in dropping the proceedings/show cause notice/demand. The matter was referred to the third member. The third member opined to set aside the order passed by the Commissioner in suo moto revision and held that the services rendered by the assessee cannot be said to be services rendered as Consulting Engineer and therefore not liable to pay the service tax. 2.4 Feeling aggrieved and dissatisfied with the majority view/decision of the Tribunal holding that the services rendered by the assessee cannot be said to be Consulting Engineer and therefore the assessee is liable to pay service tax, the Revenue has preferred the present appeals. 3. We have heard Shri A.K. Panda, learned Senior Advocate appearing on behalf of the Revenue and Mrs. Nisha Bagchi, learned Advocate, appearing on behalf of the assessee - respondents. We have gone through and considered the Order-in-Original passed by the Deputy Commissioner dropping the demand and show cause notice as well as the order passed by the learned Commissioner passed in Revision/Review and also the impugned orders passed by the Tribunal. 4. Having gone through the order passed by the Commissioner confirming the demand of service tax it appears that the Commissioner confirmed the demand of service tax merely on the ground that services rendered by the assessee can be said to be services rendered as Consulting Engineer and therefore liable to pay the service tax. However, considering the various services rendered by the assessee like erection/installation/commissioning of goods at customers site and incidentally they may also be providing the services of drawing, design etc., it cannot be said that the services rendered by the assessee was as a consulting engineer. The contract can be said to be works contract. Hence, the assessee cannot be said to be rendering the services as a consulting engineer and therefore liable to pay the service tax. Therefore, once, the assessee at the relevant time cannot be said to be consulting engineer and/or rendering services as a consulting engineering the assessee is not liable to pay the service tax on the works contract or the contract rendering services as consulting engineer for the period under consideration namely July, 1997 to December, 2000. No error has been committed by the learned Tribunal in setting aside the order passed by the Commissioner and restoring the Order-in-Original passed by the Deputy Commissioner dropping the show cause notice and demand of service tax and penalty considering the nature of services rendered by the assessee. We are in complete agreement with the view taken by the Tribunal.
### Response:
0
### Explanation:
We have gone through and considered the Order-in-Original passed by the Deputy Commissioner dropping the demand and show cause notice as well as the order passed by the learned Commissioner passed in Revision/Review and also the impugned orders passed by the Tribunal.4. Having gone through the order passed by the Commissioner confirming the demand of service tax it appears that the Commissioner confirmed the demand of service tax merely on the ground that services rendered by the assessee can be said to be services rendered as Consulting Engineer and therefore liable to pay the service tax. However, considering the various services rendered by the assessee like erection/installation/commissioning of goods at customers site and incidentally they may also be providing the services of drawing, design etc., it cannot be said that the services rendered by the assessee was as a consulting engineer. The contract can be said to be works contract. Hence, the assessee cannot be said to be rendering the services as a consulting engineer and therefore liable to pay the service tax. Therefore, once, the assessee at the relevant time cannot be said to be consulting engineer and/or rendering services as a consulting engineering the assessee is not liable to pay the service tax on the works contract or the contract rendering services as consulting engineer for the period under consideration namely July, 1997 to December, 2000. No error has been committed by the learned Tribunal in setting aside the order passed by the Commissioner and restoring the Order-in-Original passed by the Deputy Commissioner dropping the show cause notice and demand of service tax and penalty considering the nature of services rendered by the assessee. We are in complete agreement with the view taken by the Tribunal.
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U.P. Electricity Supply Co. Ltd Vs. Workmen & Ors | as a unit self-sufficient by itself, the decisions of the Labour Appellate Tribunal in regard to the refund of excess profits tax and the adjustment of the previous years depreciation and losses against the bonus years profits must be treated as logical and sound."It has never been held by this Court that if through the inefficiency in the working of the industry or by reason of use of defective machinery or apparatus full profits are not received with the result that notional the labour is deprived of a share thereof, the tribunal adjudicating on the question of bonus payable to labour for a particular year should add back to the gross profits as shown in the balance-sheet the amount of profit lost through the inefficiency or negligence of the employers.17. The above remarks apply to the case of adding back of Rupees 2.50,000 for unaccounted units of electrical energy as also to the figure of Rupees 67,817 added back by the Tribunal to the balance of gross profits of Rupees 23,51,467/-18. If the said three amounts are not to be added back to the profit according to the balance-sheet we have to start with the figure of Rupees 23,51,467 in the working sheet. The tribunal allowed Rupees 5,83,520 as expenses claimed by the employers as prior charge out of the said figure as also notional normal depreciation of Rupees 13,16,804. This would leave a surplus of Rupees 4,51,143/-. The next figure of prior charge which the Tribunal allowed was Rs. 2,80,000 at 5 per cent, on the share capital while the management claimed it at 6 per cent. i.e. Rupees 3,36,000/-. As far back as 1960 in M/s. Peirce Leslie and Co. Ltd. Kozhikode v. The Workmen (1960) 3 SCR 194 = (AIR 1960 SC 826 ) this Court held that a return of 6% is ordinarily considered to be a fair return on the capital invested in the case of paid up capital. The Court also said that in a particular industry where the risk in the business was great there will be a good cause for providing for 6 per cent. Our attention was drawn to the case of National Engineering Industries Ltd. v. Its Workmen, (1968) ISCR 779 = (AIR 1968 SC 538 ). In this case it appears that the Tribunal had allowed 7 1/4 per cent on the paid up capital instead of 8.57 per cent claimed by the company. Referring to the Associated Cement Companys case, 1959 SCR 925 = (AIR 1959 SC 967 ) (supra)that although 6 per cent would be a fair provision for payment of interest this Court observed that the rule was not to be regarded as inflexible, and in awarding interest "if the tribunal were to find that it were to grant 6% interest on paid up capital, nothing or no appreciable amount would be left for bonus, it can adjust the rate of interest so as to accommodate reasonably the claim for bonus and thus meet the demands of both as reasonably as possible."The Tribunal awarded 5% interest basing its conclusion on the fact that in the year 1.960-61 the bank rate of interest was 4% andthat on an earlier occasion i.e. Adjudication Case No. 57/1958 5% had been allowed. In our view, the addition of 2 to 3 per cent over the bank rate is quite proper as formulated in M/s, Price Leslie Companys case, and provisions for 6% interest on paid up capital is normally quite appropriate. We may in this connection mention that only very recently in the case of M/s. Bareilly Electricity Supply Co. Ltd. v. The Workmen, C. A. No. 1254 of 1966, D/- 16-8-1971 (SC) this Court had approved of the computation of interest at 6% on the share capital and we see no reason to depart therefrom.19. It was urged on behalf of the workers that the company had been a prosperous one; that it had built up large reserves and was paying dividend to its share-holders and as such the proper figure for interest would be 5% and not 6 per cent. In view of the decisions of this Court we find ourselves unable to accede to this argument. Allowing return on share capital at 8% we have to deduct Rupees 3,36,000 from the surplus balance already mentioned, namely, Rupees 4,51,143 which reduces the balance to Rupees 1,15.143/-. In this view of the matter it is not necessary to go into the question as to whether and if so what amount should be provided for as prior charges by way of return on working capital or rehabilitation requirement. But what we cannot ignore is the statutory contingency reserve and the statutory development reserve the figures for which put forward by Company and accepted by the tribunal were Rupees 1,07,291 and 2,02,709 making a total of Rupees 3,10,000/- while it is true that these amounts cannot be considered as prior charges for the purpose of finding out the available surplus they have to be taken into consideration when the question of distribution to the workers out of the available surplus arises: See Mathura Prasad Srivastava v. Saugor Electric Supply Co. Ltd, (1966) 2 Lab LJ 307 (SC).20. In this case the tribunal awarded no less than three months basic wages by way of bonus. The monthly basic wage bill of all the employees was between Rupees 74.000 and Rupees 75,000/-. It was contended on behalf of the workers that if Rs. 2,25,000/- was to be paid as bonus the company would get a rebate of 45% thereof by way of Income-tax which would give the company an additional sum of Rupees 1,01,250 -.Even so the available surplus together with this would not be enough to meet the provision for statutory contingency reserve and statutory development reserve. Even if we were to provide for one months basic wages by way of bonus, there would not be way of money in the hands of the company to make provision for the said resetves. | 1[ds]4. In our view, the broad proposition put forward by counsel for the appellant that as soon as a particular industry ceases to function any adjudication in respect of a dispute which had occurred prior thereto becomes abortive cannot be accepted. It may be that an adjudication which concerns only the future working of the industry becomes redundant when the industry itself comes to an end. If the dispute is one which relates to the past working of the industry and in particular where the claim of the workmen is for benefits which according to their view had accrued to them in the past it can hardly be said that the adjudication is without any purpose. If the workmen ask for better service conditions like the revision of wage scales, dearness allowance, medical and other facilities, gratuity etc. it would be useless for the Tribunal to complete the adjudication and award how the dispute vice conditions etc, ought to be bettered or revised where the industry is non est. Where however the dispute as in this case, is over a claim to benefits by way of bonus for work done in the past, it would be the duty of a for Tribunal to complete the adjudication and make its award. If the Tribunal finds that because of the service rendered by the workers in the past an industry reaped profits whereof a portion should go to the workmen it should not lie in the mouth of the employers to say that inasmuch as they have ceased to carry on business their obligation to pay for service rendered in the past should be wiped out. There is no logic in the submission made on behalf of the appellants that the ascertainment of the liability even with regard to the working of the industry in the past can take place only during the subsistence of the relationship of master and servant between the employers and theour view, by these provisions the legislature sought to give redress to work in the contingencies mentioned in the said sections which are of common occurrence. These sections do not lay down that on the closure or transfer of an undertaking the employers were to be relieved of all other obligations to or claims of the workers. The preamble to the Industrial Disputes Act which expressly aims at preventing strikes and lockouts is in pari materia to the U.P. Industrial Disputes Act i.e. "to make provision for the investigation and settlement of industrial disputes, and for certain other purposes" cannot be read down to mean that the statute was being enacted only for the purpose of securing industrial peace so far as the future working of the industry was concerned. No doubt the main object of the Act is to ensure industrial peace but equally important is the purpose behind the Act that the workmen should not be deprived of by the legitimate share of profits made by the industry. The central object of the Act is to preserve industrial harmoney which would be meaningless if the workers of a particular industry were to be deprived of benefits of services rendered in the past.In our view neither the observations in this case nor in U. P. Electric Supply Co. Ltd, v. R. K. Shukla, (1970) 1 SCR 507 = (AIR 1970 SC 237 ) have any application to the facts in the case before us. Retrenchment has been specially provided for by the legislature and the questions of closure of an industry and the transfer of an industry have been expressly Provided for in the Industrial Disputes Act.Although the main purpose of the Act is to provide for collective settlement of disputes and maintances of industrial peace we cannot hold that a tribunal which is called upon to adjudicate on a dispute relating to a share of the profits earned by the company in the past on behalf of the workmen becomes functus officio or that the dispute becomes incapable of determination under the Act when the industry is closed. The claim, as already pointed out is for services rendered in the past and the dispute was a live one at the time when the reference was made by the State Government and indeed continued so for more than three years thereafter. It was only because of the protracted proceedings of the tribunal that the award came to be made as late as November 1965. The closure of the business long after the rendering of the services by the workmen and the preference of the dispute to the tribunal cannot wipe out the claim of the workmen or annul the adjudication in respect thereof.12. This brings us to the merits of the case. The profits of the company for working out the Labour Appellite Tribunal Full Bench formula as found by the Tribunal far the relevant year was Rs. 23,42,352/-. The tribunal however added back thereto three claims made by the workmen, namely, (1) excess debit to coal and fuel consumption Rs. 67,817; (2) estimated revenue for one month Rupees 1,85,519 and (3) notional revenue on the basis of units produced but not accounted for Rs. 2,50,000/-, which would raise the figure of profits to Rupees 28,54,803. We find ourselves unable to accept any of the above additions made by the tribunal referred tocan be little doubt that the company was using a diesel engine for the generation of electricity the hire of which alone cost the company Rs. 2,00, 000 in the relevant year and mention is made of the use of the diesel engine in the Directors report D/- 28th August, 1961. This is also borne out by the answer to interrogatory No. 4 submitted by the workmen to the employers. In his cross-examination Ghosh said that the figure of Rs. 59,67,467-66 had been taken from the revenue ledger of the head office and without reference to the revenue account statements he could not say whether the value shown against coal and fuel was in respect of the coal consumed or wins the amount spent for purchase of coal during the month. According to him coal was purchased both at the units and through the head office. The tribunal wrongly observed that it was for the first time in his cross-examination that Ghosh had stated that the contractors bill of Rs. 6,67,477-68 included the cost of fuel amounting to Rs. 67,952-02. As already noted Ghosh in his examination-in-chief had mentioned the cost of fuel oil at Rs. 67,950-02. The Tribunal also observed that the company had not produced any record and what ever they had stated in reply to the interrogatories or in reply to thecomments, after inspection, did not corroborate the statement of Ghosh that out of the contractors bill for Rs. 6,67,477-68 a sum of Rs. 67,952-02 was in respect of the cost of fuel oil The tribunal went by the two certificates Exs. E-2 arid E-3 issued by the chartered accountants both dater 22nd December 1961 giving the figure: of coal consumed at the two generating stations and their average price Per: metric ton and on that basis reached the conclusion that the company had spent Rs. 58,98,650-90 on fuel for the relevant year and contrasting this figure with Rs. 59,67,467-66 concluded that there was an excess expenditure on this item in the sum of Rupees 67,817/-.14. In our view the Tribunals conclusion cannot be accepted. It was the same firm of chartered accountant; who issued Exs. E-2 and E-3 who were responsible for preparation of the balance-sheet and profit and loss account of the company which were accepted by, the income-tax department. While it is true that merely because a figure is to be found in the audited balance-sheet of the company an industrial tribunal is not bound to accept the said figure if challenged. It must be said that when the figures for expenses incurred in connection with fuel given in the balance-sheet are also deposed to by a witness who gives the breakup thereof and says even in his examination-in-chief that the cost of fuel oil was Rs. 67,950-02 which is repeated in cross-examination and the witness is not asked in particular as to how this figure was arrived at, although the witness was examined for nearly 10 months, the tribunal should not have discarded his evidence on this point. The break up of the figure Rs. 59,67,467-66 was disclosed as early as 25th August 1962 of which Rs. 7,03,528-81 accounted for (1) contractors bills for carting, stacking and putting cool into hoppers, (2) contractors bill for crushing coal, (3) miscellaneous charges (4) proportionate wages to staff and (5) price of coal consumed and the books of account and records of the company were made available for inspection to the workers. In these circumstances the different figures of the break up should not have been disregarded by the tribunal: more so, because the chartered accountants were giving certificates only in respect to the expenses for coal delivered into the hoppers in the accounting year. It being undisputed that the company was using a diesel plant for generating electricity it would be surprising if no expenses were incurred for purchasing the diesel oil to run it with. It may be that in the different accounts of the company cost of fuel oil was not separately recorded but was put under the general head of raw material for running and working the turbines namely, coal. Not one of the several witnesses examined on behalf of the workmen had made any statement that fuel oil was not required by the company for the relevant year of account. In our view, the figure of Rs. 59,67,467-66 as shown in the balance-sheet should have been accepted by the tribunal from which there should have been no deduction of the figure Rs.our view, the tribunals approach to the question was wholly unwarranted. The loss of electric energy was fairly high in all the months both at Allahabad and at Lucknow except for one or two months out of the year. There was no suggestion on behalf of the workmen that electric energy could have been surreptitiously dealt with by the company either for depriving the workmen of their share of the profit or for any other purpose. Electric energy as is well known cannot be transmitted except through transmission lines and without any surreptitious manipulation of the meters of which there was no allegation all energy produced at the power station as also those supplied to consumers whether in bulk or otherwise would be duly recorded in the meters. What was not so recorded could only be due to loss in transmission or conversion. unusually high wastage would certainly indicate serious leakage and inefficient working unless it was explained by some break down. But in applying the Full Bench formula the employers cannot be charged with any notional profits which they should have made although the formula itself ishas never been held by this Court that if through the inefficiency in the working of the industry or by reason of use of defective machinery or apparatus full profits are not received with the result that notional the labour is deprived of a share thereof, the tribunal adjudicating on the question of bonus payable to labour for a particular year should add back to the gross profits as shown in the balance-sheet the amount of profit lost through the inefficiency or negligence of theview of the decisions of this Court we find ourselves unable to accede to this argument. Allowing return on share capital at 8% we have to deduct Rupees 3,36,000 from the surplus balance already mentioned, namely, Rupees 4,51,143 which reduces the balance to Rupees 1,15.143/-. In this view of the matter it is not necessary to go into the question as to whether and if so what amount should be provided for as prior charges by way of return on working capital or rehabilitation requirement. But what we cannot ignore is the statutory contingency reserve and the statutory development reserve the figures for which put forward by Company and accepted by the tribunal were Rupees 1,07,291 and 2,02,709 making a total of Rupees 3,10,000/- while it is true that these amounts cannot be considered as prior charges for the purpose of finding out the available surplus they have to be taken into consideration when the question of distribution to the workers out of the available surplus arises: See Mathura Prasad Srivastava v. Saugor Electric Supply Co. Ltd, (1966) 2 Lab LJ 307 (SC).20. In this case the tribunal awarded no less than three months basic wages by way of bonus. The monthly basic wage bill of all the employees was between Rupees 74.000 and Rupees 75,000/-. It was contended on behalf of the workers that if Rs. 2,25,000/- was to be paid as bonus the company would get a rebate of 45% thereof by way of Income-tax which would give the company an additional sum of Rupees 1,01,250 -.Even so the available surplus together with this would not be enough to meet the provision for statutory contingency reserve and statutory development reserve. Even if we were to provide for one months basic wages by way of bonus, there would not be way of money in the hands of the company to make provision for the said resetves. | 1 | 8,007 | 2,377 | ### 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.
### Input:
as a unit self-sufficient by itself, the decisions of the Labour Appellate Tribunal in regard to the refund of excess profits tax and the adjustment of the previous years depreciation and losses against the bonus years profits must be treated as logical and sound."It has never been held by this Court that if through the inefficiency in the working of the industry or by reason of use of defective machinery or apparatus full profits are not received with the result that notional the labour is deprived of a share thereof, the tribunal adjudicating on the question of bonus payable to labour for a particular year should add back to the gross profits as shown in the balance-sheet the amount of profit lost through the inefficiency or negligence of the employers.17. The above remarks apply to the case of adding back of Rupees 2.50,000 for unaccounted units of electrical energy as also to the figure of Rupees 67,817 added back by the Tribunal to the balance of gross profits of Rupees 23,51,467/-18. If the said three amounts are not to be added back to the profit according to the balance-sheet we have to start with the figure of Rupees 23,51,467 in the working sheet. The tribunal allowed Rupees 5,83,520 as expenses claimed by the employers as prior charge out of the said figure as also notional normal depreciation of Rupees 13,16,804. This would leave a surplus of Rupees 4,51,143/-. The next figure of prior charge which the Tribunal allowed was Rs. 2,80,000 at 5 per cent, on the share capital while the management claimed it at 6 per cent. i.e. Rupees 3,36,000/-. As far back as 1960 in M/s. Peirce Leslie and Co. Ltd. Kozhikode v. The Workmen (1960) 3 SCR 194 = (AIR 1960 SC 826 ) this Court held that a return of 6% is ordinarily considered to be a fair return on the capital invested in the case of paid up capital. The Court also said that in a particular industry where the risk in the business was great there will be a good cause for providing for 6 per cent. Our attention was drawn to the case of National Engineering Industries Ltd. v. Its Workmen, (1968) ISCR 779 = (AIR 1968 SC 538 ). In this case it appears that the Tribunal had allowed 7 1/4 per cent on the paid up capital instead of 8.57 per cent claimed by the company. Referring to the Associated Cement Companys case, 1959 SCR 925 = (AIR 1959 SC 967 ) (supra)that although 6 per cent would be a fair provision for payment of interest this Court observed that the rule was not to be regarded as inflexible, and in awarding interest "if the tribunal were to find that it were to grant 6% interest on paid up capital, nothing or no appreciable amount would be left for bonus, it can adjust the rate of interest so as to accommodate reasonably the claim for bonus and thus meet the demands of both as reasonably as possible."The Tribunal awarded 5% interest basing its conclusion on the fact that in the year 1.960-61 the bank rate of interest was 4% andthat on an earlier occasion i.e. Adjudication Case No. 57/1958 5% had been allowed. In our view, the addition of 2 to 3 per cent over the bank rate is quite proper as formulated in M/s, Price Leslie Companys case, and provisions for 6% interest on paid up capital is normally quite appropriate. We may in this connection mention that only very recently in the case of M/s. Bareilly Electricity Supply Co. Ltd. v. The Workmen, C. A. No. 1254 of 1966, D/- 16-8-1971 (SC) this Court had approved of the computation of interest at 6% on the share capital and we see no reason to depart therefrom.19. It was urged on behalf of the workers that the company had been a prosperous one; that it had built up large reserves and was paying dividend to its share-holders and as such the proper figure for interest would be 5% and not 6 per cent. In view of the decisions of this Court we find ourselves unable to accede to this argument. Allowing return on share capital at 8% we have to deduct Rupees 3,36,000 from the surplus balance already mentioned, namely, Rupees 4,51,143 which reduces the balance to Rupees 1,15.143/-. In this view of the matter it is not necessary to go into the question as to whether and if so what amount should be provided for as prior charges by way of return on working capital or rehabilitation requirement. But what we cannot ignore is the statutory contingency reserve and the statutory development reserve the figures for which put forward by Company and accepted by the tribunal were Rupees 1,07,291 and 2,02,709 making a total of Rupees 3,10,000/- while it is true that these amounts cannot be considered as prior charges for the purpose of finding out the available surplus they have to be taken into consideration when the question of distribution to the workers out of the available surplus arises: See Mathura Prasad Srivastava v. Saugor Electric Supply Co. Ltd, (1966) 2 Lab LJ 307 (SC).20. In this case the tribunal awarded no less than three months basic wages by way of bonus. The monthly basic wage bill of all the employees was between Rupees 74.000 and Rupees 75,000/-. It was contended on behalf of the workers that if Rs. 2,25,000/- was to be paid as bonus the company would get a rebate of 45% thereof by way of Income-tax which would give the company an additional sum of Rupees 1,01,250 -.Even so the available surplus together with this would not be enough to meet the provision for statutory contingency reserve and statutory development reserve. Even if we were to provide for one months basic wages by way of bonus, there would not be way of money in the hands of the company to make provision for the said resetves.
### Response:
1
### Explanation:
67,817/-.14. In our view the Tribunals conclusion cannot be accepted. It was the same firm of chartered accountant; who issued Exs. E-2 and E-3 who were responsible for preparation of the balance-sheet and profit and loss account of the company which were accepted by, the income-tax department. While it is true that merely because a figure is to be found in the audited balance-sheet of the company an industrial tribunal is not bound to accept the said figure if challenged. It must be said that when the figures for expenses incurred in connection with fuel given in the balance-sheet are also deposed to by a witness who gives the breakup thereof and says even in his examination-in-chief that the cost of fuel oil was Rs. 67,950-02 which is repeated in cross-examination and the witness is not asked in particular as to how this figure was arrived at, although the witness was examined for nearly 10 months, the tribunal should not have discarded his evidence on this point. The break up of the figure Rs. 59,67,467-66 was disclosed as early as 25th August 1962 of which Rs. 7,03,528-81 accounted for (1) contractors bills for carting, stacking and putting cool into hoppers, (2) contractors bill for crushing coal, (3) miscellaneous charges (4) proportionate wages to staff and (5) price of coal consumed and the books of account and records of the company were made available for inspection to the workers. In these circumstances the different figures of the break up should not have been disregarded by the tribunal: more so, because the chartered accountants were giving certificates only in respect to the expenses for coal delivered into the hoppers in the accounting year. It being undisputed that the company was using a diesel plant for generating electricity it would be surprising if no expenses were incurred for purchasing the diesel oil to run it with. It may be that in the different accounts of the company cost of fuel oil was not separately recorded but was put under the general head of raw material for running and working the turbines namely, coal. Not one of the several witnesses examined on behalf of the workmen had made any statement that fuel oil was not required by the company for the relevant year of account. In our view, the figure of Rs. 59,67,467-66 as shown in the balance-sheet should have been accepted by the tribunal from which there should have been no deduction of the figure Rs.our view, the tribunals approach to the question was wholly unwarranted. The loss of electric energy was fairly high in all the months both at Allahabad and at Lucknow except for one or two months out of the year. There was no suggestion on behalf of the workmen that electric energy could have been surreptitiously dealt with by the company either for depriving the workmen of their share of the profit or for any other purpose. Electric energy as is well known cannot be transmitted except through transmission lines and without any surreptitious manipulation of the meters of which there was no allegation all energy produced at the power station as also those supplied to consumers whether in bulk or otherwise would be duly recorded in the meters. What was not so recorded could only be due to loss in transmission or conversion. unusually high wastage would certainly indicate serious leakage and inefficient working unless it was explained by some break down. But in applying the Full Bench formula the employers cannot be charged with any notional profits which they should have made although the formula itself ishas never been held by this Court that if through the inefficiency in the working of the industry or by reason of use of defective machinery or apparatus full profits are not received with the result that notional the labour is deprived of a share thereof, the tribunal adjudicating on the question of bonus payable to labour for a particular year should add back to the gross profits as shown in the balance-sheet the amount of profit lost through the inefficiency or negligence of theview of the decisions of this Court we find ourselves unable to accede to this argument. Allowing return on share capital at 8% we have to deduct Rupees 3,36,000 from the surplus balance already mentioned, namely, Rupees 4,51,143 which reduces the balance to Rupees 1,15.143/-. In this view of the matter it is not necessary to go into the question as to whether and if so what amount should be provided for as prior charges by way of return on working capital or rehabilitation requirement. But what we cannot ignore is the statutory contingency reserve and the statutory development reserve the figures for which put forward by Company and accepted by the tribunal were Rupees 1,07,291 and 2,02,709 making a total of Rupees 3,10,000/- while it is true that these amounts cannot be considered as prior charges for the purpose of finding out the available surplus they have to be taken into consideration when the question of distribution to the workers out of the available surplus arises: See Mathura Prasad Srivastava v. Saugor Electric Supply Co. Ltd, (1966) 2 Lab LJ 307 (SC).20. In this case the tribunal awarded no less than three months basic wages by way of bonus. The monthly basic wage bill of all the employees was between Rupees 74.000 and Rupees 75,000/-. It was contended on behalf of the workers that if Rs. 2,25,000/- was to be paid as bonus the company would get a rebate of 45% thereof by way of Income-tax which would give the company an additional sum of Rupees 1,01,250 -.Even so the available surplus together with this would not be enough to meet the provision for statutory contingency reserve and statutory development reserve. Even if we were to provide for one months basic wages by way of bonus, there would not be way of money in the hands of the company to make provision for the said resetves.
|
Chotka Hembram Vs. State Of West Bengal And Ors | petitioner was ordered to be detained by the District Magistate on July 3, 1972 were as under:"(1) On 8-11-71 at about 12.30 hours, you along with your associates viz. Kartick Pal and others belonging to CPI (ML), being armed with lethal weapons like daggers, tangi etc. attacked Karunamoy Pal (Congress-R) of Daoradanga, P. 8, Bhatra, Distt. Burdwan and stabbed him to death near his house with a view to promoting the cause of the party to which you belong as he refused to join hands with you. Your act created a general sense of insecurity and deterred the residents of the locality from following their normal avocation of life for a considerable period after the incident. (2) On 14-1-72 at about 17.35 hours, you along with your associates viz. Kartick Pal and others belonging to CPI (ML) being armed with gun attacked Ram Krishan Sarkar by barricading the roads with pillars and shot at him from an unlicensed gun with a view to annihilating them to promote the cause of the party to which you belong. As a result, Constable 721 Rajaram Jadav received gun shot injuries. Your act created a general sense of insecurity and deterred the residents of the locality from following their normal avocations of life for a considerable period after the incident." 5. Precisely, these are the very grounds on account of which the fresh order of detention for the petitioner has been made on April 26, 1973. 6. According to sub-sec. (2) of Section 14 of the Act "the revocation or expiry of a detention order shall not bar the making of a fresh detention order under Section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be is satisfied that such an order should be made". It would, therefore, follow that if an order for the detention of a person had been made under the Act and that order was either subsequently revoked or the period for which the detention order was made has expired, the said order would not stand in the way of the making of a fresh order of detention under Section 3 of the Act against the same person provided fresh facts arise after the date of the said revocation or expiry. If no fresh facts come into being after the date of revocation or expiry as may warrant the making of an order of detention, the requisite condition precedent to the making of the subsequent order would be non-existent an it would not be permissible to make a subsequent order of detention under Section 3 of the Act. The order for the detention of the petitioner in the present case made on July 3, 1972 was revoked when this Court give its judgment in the case of Sambhu Nath Sarkar v. State of West Bengal W.P. 266 of 1972 decided on April 19, 1973 = (1973) 1 SCC 856 = (AIR 1973 SC 1425 ). The petitioner was accordingly released on April 28, 1973. Two days before the release of the petitioner the District Magistrate of Burdwan made a fresh order under S.3 of the Act for the detention of the petitioner and based that order upon the same grounds upon which the earlier order for the detention of the petitioner had been based. Perusal of the grounds of detention makes it manifest that they relate to incidents which took place at a time prior to the revocation of the earlier detention order dated July 3, 1972; in fact, they relate as they msut in the very nature of things, to incidents which took place prior to the making of that order. As such, those incidents could not provide valid grounds for the making of the subsequent detention order dated April 26, 1973. 7. The provisions of sub-section (2) of Section 14 of the Act were considered by this Court in the case of Masood Alam v. Union of India, AIR 1973 SC 897 and it was observed that "the power of preventive detention being an extraordinary power intended to be exercised only in extraordinary emergent circumstances, the legislative scheme of Section 13 and 14 of the Act suggests that the detaining authority is expected to know and to take into account all the existing grounds and make one order of detention which must not go beyond a maximum period fixed. In the present case it is not urged, and indeed it is not possible to urge, that after the actual expiry of the original order of detention made by the District Magistrate which could only last for 12 days in the absence of its approval by the State Government, any fresh facts could arise for sustaining the fresh order of detention." This Court, in the circumstances, quashed the order of detention. 8. The matter can also be looked at from another angle. Section 13 of the Act provides that the maximum period for which any person may be detained in pursuance of any detention order, which has been confirmed under Section 12, shall be 12 months from the date of detention. It is, therefore, plain that the maximum period for which a person can be detained on account of specified acts should not exceed 12 months. If for the same acts repeated orders of detention can be made the effect would be that for the same acts a detenu would be liable to be detained for a period of more than 12 months. The making of a subsequent order of detention in respect of the same acts, for which an earlier order of detention was made, would run counter to the entire scheme of the Act. It would also set at naught the restriction which is imposed by Section 13 of the Act relating to the maximum period for which a person can be detained in pursuance of a detention order. | 1[ds]6. According to sub-sec. (2) of Section 14 of the Act "the revocation or expiry of a detention order shall not bar the making of a fresh detention order under Section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be is satisfied that such an order should be made". It would, therefore, follow that if an order for the detention of a person had been made under the Act and that order was either subsequently revoked or the period for which the detention order was made has expired, the said order would not stand in the way of the making of a fresh order of detention under Section 3 of the Act against the same person provided fresh facts arise after the date of the said revocation or expiry. If no fresh facts come into being after the date of revocation or expiry as may warrant the making of an order of detention, the requisite condition precedent to the making of the subsequent order would be non-existent an it would not be permissible to make a subsequent order of detention under Section 3 of the Act8. The matter can also be looked at from another angle. Section 13 of the Act provides that the maximum period for which any person may be detained in pursuance of any detention order, which has been confirmed under Section 12, shall be 12 months from the date of detention. It is, therefore, plain that the maximum period for which a person can be detained on account of specified acts should not exceed 12 months. If for the same acts repeated orders of detention can be made the effect would be that for the same acts a detenu would be liable to be detained for a period of more than 12 months. The making of a subsequent order of detention in respect of the same acts, for which an earlier order of detention was made, would run counter to the entire scheme of the Act. It would also set at naught the restriction which is imposed by Section 13 of the Act relating to the maximum period for which a person can be detained in pursuance of a detention order | 1 | 1,383 | 422 | ### 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:
petitioner was ordered to be detained by the District Magistate on July 3, 1972 were as under:"(1) On 8-11-71 at about 12.30 hours, you along with your associates viz. Kartick Pal and others belonging to CPI (ML), being armed with lethal weapons like daggers, tangi etc. attacked Karunamoy Pal (Congress-R) of Daoradanga, P. 8, Bhatra, Distt. Burdwan and stabbed him to death near his house with a view to promoting the cause of the party to which you belong as he refused to join hands with you. Your act created a general sense of insecurity and deterred the residents of the locality from following their normal avocation of life for a considerable period after the incident. (2) On 14-1-72 at about 17.35 hours, you along with your associates viz. Kartick Pal and others belonging to CPI (ML) being armed with gun attacked Ram Krishan Sarkar by barricading the roads with pillars and shot at him from an unlicensed gun with a view to annihilating them to promote the cause of the party to which you belong. As a result, Constable 721 Rajaram Jadav received gun shot injuries. Your act created a general sense of insecurity and deterred the residents of the locality from following their normal avocations of life for a considerable period after the incident." 5. Precisely, these are the very grounds on account of which the fresh order of detention for the petitioner has been made on April 26, 1973. 6. According to sub-sec. (2) of Section 14 of the Act "the revocation or expiry of a detention order shall not bar the making of a fresh detention order under Section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be is satisfied that such an order should be made". It would, therefore, follow that if an order for the detention of a person had been made under the Act and that order was either subsequently revoked or the period for which the detention order was made has expired, the said order would not stand in the way of the making of a fresh order of detention under Section 3 of the Act against the same person provided fresh facts arise after the date of the said revocation or expiry. If no fresh facts come into being after the date of revocation or expiry as may warrant the making of an order of detention, the requisite condition precedent to the making of the subsequent order would be non-existent an it would not be permissible to make a subsequent order of detention under Section 3 of the Act. The order for the detention of the petitioner in the present case made on July 3, 1972 was revoked when this Court give its judgment in the case of Sambhu Nath Sarkar v. State of West Bengal W.P. 266 of 1972 decided on April 19, 1973 = (1973) 1 SCC 856 = (AIR 1973 SC 1425 ). The petitioner was accordingly released on April 28, 1973. Two days before the release of the petitioner the District Magistrate of Burdwan made a fresh order under S.3 of the Act for the detention of the petitioner and based that order upon the same grounds upon which the earlier order for the detention of the petitioner had been based. Perusal of the grounds of detention makes it manifest that they relate to incidents which took place at a time prior to the revocation of the earlier detention order dated July 3, 1972; in fact, they relate as they msut in the very nature of things, to incidents which took place prior to the making of that order. As such, those incidents could not provide valid grounds for the making of the subsequent detention order dated April 26, 1973. 7. The provisions of sub-section (2) of Section 14 of the Act were considered by this Court in the case of Masood Alam v. Union of India, AIR 1973 SC 897 and it was observed that "the power of preventive detention being an extraordinary power intended to be exercised only in extraordinary emergent circumstances, the legislative scheme of Section 13 and 14 of the Act suggests that the detaining authority is expected to know and to take into account all the existing grounds and make one order of detention which must not go beyond a maximum period fixed. In the present case it is not urged, and indeed it is not possible to urge, that after the actual expiry of the original order of detention made by the District Magistrate which could only last for 12 days in the absence of its approval by the State Government, any fresh facts could arise for sustaining the fresh order of detention." This Court, in the circumstances, quashed the order of detention. 8. The matter can also be looked at from another angle. Section 13 of the Act provides that the maximum period for which any person may be detained in pursuance of any detention order, which has been confirmed under Section 12, shall be 12 months from the date of detention. It is, therefore, plain that the maximum period for which a person can be detained on account of specified acts should not exceed 12 months. If for the same acts repeated orders of detention can be made the effect would be that for the same acts a detenu would be liable to be detained for a period of more than 12 months. The making of a subsequent order of detention in respect of the same acts, for which an earlier order of detention was made, would run counter to the entire scheme of the Act. It would also set at naught the restriction which is imposed by Section 13 of the Act relating to the maximum period for which a person can be detained in pursuance of a detention order.
### Response:
1
### Explanation:
6. According to sub-sec. (2) of Section 14 of the Act "the revocation or expiry of a detention order shall not bar the making of a fresh detention order under Section 3 against the same person in any case where fresh facts have arisen after the date of revocation or expiry on which the Central Government or a State Government or an officer, as the case may be is satisfied that such an order should be made". It would, therefore, follow that if an order for the detention of a person had been made under the Act and that order was either subsequently revoked or the period for which the detention order was made has expired, the said order would not stand in the way of the making of a fresh order of detention under Section 3 of the Act against the same person provided fresh facts arise after the date of the said revocation or expiry. If no fresh facts come into being after the date of revocation or expiry as may warrant the making of an order of detention, the requisite condition precedent to the making of the subsequent order would be non-existent an it would not be permissible to make a subsequent order of detention under Section 3 of the Act8. The matter can also be looked at from another angle. Section 13 of the Act provides that the maximum period for which any person may be detained in pursuance of any detention order, which has been confirmed under Section 12, shall be 12 months from the date of detention. It is, therefore, plain that the maximum period for which a person can be detained on account of specified acts should not exceed 12 months. If for the same acts repeated orders of detention can be made the effect would be that for the same acts a detenu would be liable to be detained for a period of more than 12 months. The making of a subsequent order of detention in respect of the same acts, for which an earlier order of detention was made, would run counter to the entire scheme of the Act. It would also set at naught the restriction which is imposed by Section 13 of the Act relating to the maximum period for which a person can be detained in pursuance of a detention order
|
S. Narayanaswami Vs. G. Pannerselvam & Ors | directed at all or that the omission must be by mere oversight. The provisions discussed above demonstrated amply how legislative attention was paid to the qualifications of the electors as well as of the elected in every case. Hence the correct presumption, in such a case would be that the omission was deliberate. 18. A glance at the legislative history lying behind Article 171 also enables us to reach the conclusion that the omission by the Constitution makers or by Parliament to prescribe graduation as a qualification of the candidate for the graduates constituency must be deliberate. Section 60 and 61 of the Government of India Act 1935, deal with composition of provincial legislatures and of the two Chambers of such legislatures. The Upper Chambers in the Provincial Legislatures were to be composed of members retiring every third year in accordance with provisions of the Fifth Schedule to the Act. Rule 10 of this Schedule lays down: In a Province in which any seats are to be filled by representatives of backward areas or backward tribes, representatives of commerce, industry, mining and planting, representatives of landholders, representatives of universities or representatives of labour, persons to fill those seats.....shall be chosen in such manner as may be prescribed. On 30th April, 1936, the Government of India (Provincial Legislative Assemblies) Order of 1936 was issued by His Majesty in Council. It prescribed the qualifications of persons to be chosen from the special constituencies set up for representation in the Legislative Councils. A glance at the provisions relating to these qualifications, including those for the University seats, indicates that it was invariably expressly provided where it was so intended, that a necessary qualification of a candidate for a seat was that he or she should be entitled to vote for the choice of a member to fill it. Hence, legislative history on the subject would also indicate that, whenever any qualification of the candidate was intended to be imposed, this was expressly done and not left to mere implications. 19. We think that the view contained in the judgment under appeal, necessarily results in writing some words into or adding them to the relevant statutory provisions, to the effect that the candidates from graduates constituencies of Legislative Councils must also possess the qualification to having graduated. This contravenes the rule of plain meaning or literal construction which must ordinarily prevail. A logical corollary of that rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made (See Craies on Statute Law - 6th Edn. p. 70). An application of the rule necessarily involves that addition to or modification of words used in statutory provisions is not generally permissible (see e.g. Sri Ram Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459 , British India General Insurance Co. Ltd., v. Captain Itbar Singh, (1960) 1 SCR 168 = (AIR 1959 SC 1331 ), R.G. Jacob v. Union of India, (1963) 3 SCR 800 = (AIR 1963 SC 550 .) Courts may depart from this rule only to avoid a patent absurdity (see e.g. State of Madhya Pradesh v. Asad Bharat Finance Co., AIR 1967 SC 276 . In Hira Devi v. District Board, Shahjahanpur, AIR 1952 SC 362 at p. 365 this Court observed: No doubt it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act. 20. Cases in which defects in statutory provisions may or may not be supplied by Courts have been indicated in well known words such as Sutherlands Statutory Construction (3rd Edn. Vol.2) (Paragraph 4924 at pages 455-458) and in Crawfords Construction of Statutes (1940 Edn.), Only one passage from the last mentioned work need be cited here: (p. 269): Where the statutes meaning is clear and explicit, words cannot be interpolated. In the first place, in such a case, they are not needed. If they should be interpolated, the statute would more than likely fail to express the legislative intent as the thought intended to be conveyed, might be altered by the addition of new words. They should not be interpolated even though the remedy of the statute would therefore be advanced, or a more desirable or just result would occur. Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute. 21. We think that the language as well as the legislative history of Article 171 and 173 of the Constitution and Section 6 of the Representation of the People Act, 1951, enable us to presume a deliberate omission of the qualification that the representative of the Graduates should also be a graduate. In our opinion, no absurdity results if we presume such an intention. We cannot infer, as the learned Judge of the Madras High Court had done, from the mere fact of such an omission and opinions about a supposed scheme of functional representation underlying Article 171 of our Constitution, that the omission was either unintentional or that it led to absurd results. We think that by adding a deemed to be necessary or implied qualification of a representative of the Graduates which the Constitution makers, orin any event the Parliament, could have easily imposed, the learned Judge had really invaded the Legislative sphere. The defect if any, in the law could be removed only by law made by Parliament. 22. We conclude, after considering all the relevant constitutional and statutory provisions relating to the qualifications of a candidate of election from the Graduates constituency of the Legislative Council of the Madras State, that the appellant possesses all the qualifications laid down for such a candidate. | 1[ds]7. The plain and ordinary meaning of the term electorate is confined to the body of persons who elect. It does not contain, within its ambit, the extended notion of a body of persons electing representatives from amongst themselves. Thus, the use of the term electorate, in Art. 171 (3) of our Constitution, could not by itself, impose a limit upon the field of choice of members of the electorate by requiring that the person to be chosen must also be a member of the electorate. The qualifications of the electors constituting the electorate and of those who can represent each electorate, contemplated by the Constitution and then supplemented by Parliament are separately set out for each house12. An important and very noticeable difference between qualifications prescribed by Parliament for the membership of a Legislative Assembly by Section 5 of the Representation of the People Act of 1951 and those for the membership of a Legislative Council by Section 6 of that Act is that, so far as a member of the Legislative Assembly is concerned, he or she has to be an Elector in the Constituency from which he or she stands, but a member of a Legislative Council in a State is not similarly required to be a member of the electorate. All that Parliament says, in Sec.6 of the Representation of the People Act, 1951, is that the person to be chosen as a member of the Legislative Council has to be an elector for any Assembly constituency in the State to whose legislative Council he was to be chosen. He has to be ordinarily resident in the State to qualify for nomination. No other qualifications, apart, from those found in Article 173 of the Constitution and S.6 of the Representation of the People Act of 1951, are to be found laid down anywhere. But, an additional qualification was found, by the judgment under appeal before us, to exist by resorting to a presumed legislative intent and then practically adding it to those expressly laid down15. Whatever may have been the opinions of Constitution makers or of their advisers, whose views are cited in the judgment under appeal, it is not possible to say, on a perusal of Article 171 of the Constitution, that the Second Chambers set up in nine States in India were meant to incorporate the principle of what is known as functional or vocatitonal representation which has been advocated by Guild-Socialist and Syndicalist Schools of political thought. Some of the observations quoted above, in the judgment under appeal itself, militate with the conclusions reached there. All that we can infer from our Constitutional provisions is that additional representation or weightage was given to persons possessing special types of knowledge and experienced by enabling them to elect their special representatives also for Legislative Councils. The concept of such representation does not carry with it, as a necessary consequence, the further notion that the representative must also possess the very qualifications of those he represents16. In the case of the Graduates constituency, it is provided in Article 171 (3) (b) that the electors must have held their degrees for at least three years before they become qualified as electors. Thus, in laying down the test of competence of voters of such a constituency, mere possession of degrees by them was not considered sufficient. Moreover, graduates are not an occupational or vocational group but merely a body of persons with an educational qualification. It would, therefore, not be correct to describe the additional representation sought to be given to them as an attempt to introduce the functional or vocational principle. On the face of it, Article 171 appears to be designed only to give a right to choose their representatives to those who have certain types of presumably valuable knowledge and education. If the presumption of their better competence to elect a suitable representative is there, as we think that there must be it would be for the members of such a constituency themselves to decide whether a person who stands for election from their constituency possesses the right type of knowledge, experience, and wisdom which satisfy certain standards. It may well be that the Constitution makers, acting upon such a presumption, had intentionally left the educational qualifications of a candidate for election from the graduates constituency unspecifiedIn the case before us, it could not possibly be said that the question to be dealt with was not known to the legislators. It could not even be said that qualifications of the electors as well as of those to be elected were not matters to which the attention of the law makers, both in the Constituent Assembly and in Parliament, was not specially directed at all or that the omission must be by mere oversight. The provisions discussed above demonstrated amply how legislative attention was paid to the qualifications of the electors as well as of the elected in every case. Hence the correct presumption, in such a case would be that the omission was deliberate21. We think that the language as well as the legislative history of Article 171 and 173 of the Constitution and Section 6 of the Representation of the People Act, 1951, enable us to presume a deliberate omission of the qualification that the representative of the Graduates should also be a graduate. In our opinion, no absurdity results if we presume such an intention. We cannot infer, as the learned Judge of the Madras High Court had done, from the mere fact of such an omission and opinions about a supposed scheme of functional representation underlying Article 171 of our Constitution, that the omission was either unintentional or that it led to absurd results. We think that by adding a deemed to be necessary or implied qualification of a representative of the Graduates which the Constitution makers, orin any event the Parliament, could have easily imposed, the learned Judge had really invaded the Legislative sphere. The defect if any, in the law could be removed only by law made by Parliament22. We conclude, after considering all the relevant constitutional and statutory provisions relating to the qualifications of a candidate of election from the Graduates constituency of the Legislative Council of the Madras State, that the appellant possesses all the qualifications laid down for such a candidate. | 1 | 4,703 | 1,151 | ### 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:
directed at all or that the omission must be by mere oversight. The provisions discussed above demonstrated amply how legislative attention was paid to the qualifications of the electors as well as of the elected in every case. Hence the correct presumption, in such a case would be that the omission was deliberate. 18. A glance at the legislative history lying behind Article 171 also enables us to reach the conclusion that the omission by the Constitution makers or by Parliament to prescribe graduation as a qualification of the candidate for the graduates constituency must be deliberate. Section 60 and 61 of the Government of India Act 1935, deal with composition of provincial legislatures and of the two Chambers of such legislatures. The Upper Chambers in the Provincial Legislatures were to be composed of members retiring every third year in accordance with provisions of the Fifth Schedule to the Act. Rule 10 of this Schedule lays down: In a Province in which any seats are to be filled by representatives of backward areas or backward tribes, representatives of commerce, industry, mining and planting, representatives of landholders, representatives of universities or representatives of labour, persons to fill those seats.....shall be chosen in such manner as may be prescribed. On 30th April, 1936, the Government of India (Provincial Legislative Assemblies) Order of 1936 was issued by His Majesty in Council. It prescribed the qualifications of persons to be chosen from the special constituencies set up for representation in the Legislative Councils. A glance at the provisions relating to these qualifications, including those for the University seats, indicates that it was invariably expressly provided where it was so intended, that a necessary qualification of a candidate for a seat was that he or she should be entitled to vote for the choice of a member to fill it. Hence, legislative history on the subject would also indicate that, whenever any qualification of the candidate was intended to be imposed, this was expressly done and not left to mere implications. 19. We think that the view contained in the judgment under appeal, necessarily results in writing some words into or adding them to the relevant statutory provisions, to the effect that the candidates from graduates constituencies of Legislative Councils must also possess the qualification to having graduated. This contravenes the rule of plain meaning or literal construction which must ordinarily prevail. A logical corollary of that rule is that a statute may not be extended to meet a case for which provision has clearly and undoubtedly not been made (See Craies on Statute Law - 6th Edn. p. 70). An application of the rule necessarily involves that addition to or modification of words used in statutory provisions is not generally permissible (see e.g. Sri Ram Ram Narain Medhi v. State of Bombay, AIR 1959 SC 459 , British India General Insurance Co. Ltd., v. Captain Itbar Singh, (1960) 1 SCR 168 = (AIR 1959 SC 1331 ), R.G. Jacob v. Union of India, (1963) 3 SCR 800 = (AIR 1963 SC 550 .) Courts may depart from this rule only to avoid a patent absurdity (see e.g. State of Madhya Pradesh v. Asad Bharat Finance Co., AIR 1967 SC 276 . In Hira Devi v. District Board, Shahjahanpur, AIR 1952 SC 362 at p. 365 this Court observed: No doubt it is the duty of the Court to try and harmonise the various provisions of an Act passed by the Legislature. But it is certainly not the duty of the Court to stretch the words used by the Legislature to fill in gaps or omissions in the provisions of an Act. 20. Cases in which defects in statutory provisions may or may not be supplied by Courts have been indicated in well known words such as Sutherlands Statutory Construction (3rd Edn. Vol.2) (Paragraph 4924 at pages 455-458) and in Crawfords Construction of Statutes (1940 Edn.), Only one passage from the last mentioned work need be cited here: (p. 269): Where the statutes meaning is clear and explicit, words cannot be interpolated. In the first place, in such a case, they are not needed. If they should be interpolated, the statute would more than likely fail to express the legislative intent as the thought intended to be conveyed, might be altered by the addition of new words. They should not be interpolated even though the remedy of the statute would therefore be advanced, or a more desirable or just result would occur. Even where the meaning of the statute is clear and sensible, either with or without the omitted word, interpolation is improper, since the primary source of the legislative intent is in the language of the statute. 21. We think that the language as well as the legislative history of Article 171 and 173 of the Constitution and Section 6 of the Representation of the People Act, 1951, enable us to presume a deliberate omission of the qualification that the representative of the Graduates should also be a graduate. In our opinion, no absurdity results if we presume such an intention. We cannot infer, as the learned Judge of the Madras High Court had done, from the mere fact of such an omission and opinions about a supposed scheme of functional representation underlying Article 171 of our Constitution, that the omission was either unintentional or that it led to absurd results. We think that by adding a deemed to be necessary or implied qualification of a representative of the Graduates which the Constitution makers, orin any event the Parliament, could have easily imposed, the learned Judge had really invaded the Legislative sphere. The defect if any, in the law could be removed only by law made by Parliament. 22. We conclude, after considering all the relevant constitutional and statutory provisions relating to the qualifications of a candidate of election from the Graduates constituency of the Legislative Council of the Madras State, that the appellant possesses all the qualifications laid down for such a candidate.
### Response:
1
### Explanation:
not by itself, impose a limit upon the field of choice of members of the electorate by requiring that the person to be chosen must also be a member of the electorate. The qualifications of the electors constituting the electorate and of those who can represent each electorate, contemplated by the Constitution and then supplemented by Parliament are separately set out for each house12. An important and very noticeable difference between qualifications prescribed by Parliament for the membership of a Legislative Assembly by Section 5 of the Representation of the People Act of 1951 and those for the membership of a Legislative Council by Section 6 of that Act is that, so far as a member of the Legislative Assembly is concerned, he or she has to be an Elector in the Constituency from which he or she stands, but a member of a Legislative Council in a State is not similarly required to be a member of the electorate. All that Parliament says, in Sec.6 of the Representation of the People Act, 1951, is that the person to be chosen as a member of the Legislative Council has to be an elector for any Assembly constituency in the State to whose legislative Council he was to be chosen. He has to be ordinarily resident in the State to qualify for nomination. No other qualifications, apart, from those found in Article 173 of the Constitution and S.6 of the Representation of the People Act of 1951, are to be found laid down anywhere. But, an additional qualification was found, by the judgment under appeal before us, to exist by resorting to a presumed legislative intent and then practically adding it to those expressly laid down15. Whatever may have been the opinions of Constitution makers or of their advisers, whose views are cited in the judgment under appeal, it is not possible to say, on a perusal of Article 171 of the Constitution, that the Second Chambers set up in nine States in India were meant to incorporate the principle of what is known as functional or vocatitonal representation which has been advocated by Guild-Socialist and Syndicalist Schools of political thought. Some of the observations quoted above, in the judgment under appeal itself, militate with the conclusions reached there. All that we can infer from our Constitutional provisions is that additional representation or weightage was given to persons possessing special types of knowledge and experienced by enabling them to elect their special representatives also for Legislative Councils. The concept of such representation does not carry with it, as a necessary consequence, the further notion that the representative must also possess the very qualifications of those he represents16. In the case of the Graduates constituency, it is provided in Article 171 (3) (b) that the electors must have held their degrees for at least three years before they become qualified as electors. Thus, in laying down the test of competence of voters of such a constituency, mere possession of degrees by them was not considered sufficient. Moreover, graduates are not an occupational or vocational group but merely a body of persons with an educational qualification. It would, therefore, not be correct to describe the additional representation sought to be given to them as an attempt to introduce the functional or vocational principle. On the face of it, Article 171 appears to be designed only to give a right to choose their representatives to those who have certain types of presumably valuable knowledge and education. If the presumption of their better competence to elect a suitable representative is there, as we think that there must be it would be for the members of such a constituency themselves to decide whether a person who stands for election from their constituency possesses the right type of knowledge, experience, and wisdom which satisfy certain standards. It may well be that the Constitution makers, acting upon such a presumption, had intentionally left the educational qualifications of a candidate for election from the graduates constituency unspecifiedIn the case before us, it could not possibly be said that the question to be dealt with was not known to the legislators. It could not even be said that qualifications of the electors as well as of those to be elected were not matters to which the attention of the law makers, both in the Constituent Assembly and in Parliament, was not specially directed at all or that the omission must be by mere oversight. The provisions discussed above demonstrated amply how legislative attention was paid to the qualifications of the electors as well as of the elected in every case. Hence the correct presumption, in such a case would be that the omission was deliberate21. We think that the language as well as the legislative history of Article 171 and 173 of the Constitution and Section 6 of the Representation of the People Act, 1951, enable us to presume a deliberate omission of the qualification that the representative of the Graduates should also be a graduate. In our opinion, no absurdity results if we presume such an intention. We cannot infer, as the learned Judge of the Madras High Court had done, from the mere fact of such an omission and opinions about a supposed scheme of functional representation underlying Article 171 of our Constitution, that the omission was either unintentional or that it led to absurd results. We think that by adding a deemed to be necessary or implied qualification of a representative of the Graduates which the Constitution makers, orin any event the Parliament, could have easily imposed, the learned Judge had really invaded the Legislative sphere. The defect if any, in the law could be removed only by law made by Parliament22. We conclude, after considering all the relevant constitutional and statutory provisions relating to the qualifications of a candidate of election from the Graduates constituency of the Legislative Council of the Madras State, that the appellant possesses all the qualifications laid down for such a candidate.
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M/S DALMIA POWER LTD Vs. THE ASSISTANT COMMISSIONER OF INCOME TAX | books of the Appellants/ Transferee Companies/Amalgamated Companies. The Schemes incorporated provisions for filing the revised Returns beyond the prescribed time limit since the Schemes would come into force retrospectively from the Appointed Date i.e. 01.01.2015. Accordingly, the Appellants filed their Revised Returns on 27.11.2018. The re-computation would have a bearing on the total income of the Appellants with respect to the A.Y. 2016-2018, particularly on matters in relation to carrying forward losses, unabsorbed depreciation etc. 5. The counsel appearing for the Department relied on Section 139(5) and 119(2)(b) of the Income Tax Act r.w. Circular No.9 of 2015 issued by the CBDT to contend that the Appellant ought to have made an application for condonation of delay, and sought permission from the CBDT, before filing the revised Returns beyond the statutory period of 31.03.2018. The Appellants having belatedly filed their revised Returns on 27.11.2018, which was beyond the due date of 31.03.2018 for A.Y. 2016-2017, the assessment could only be done on the basis of the original Returns filed by the Appellants. 6. Section 139(5) of the Income Tax Act, as it stood at the relevant time, makes it clear that where an assessee furnishes a return under sub-section (1) or sub-section (4) of Section 139, and later discovers an omission or mistake therein, he may furnish a revised Return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. Section 139(5) of the Income Tax Act is set out hereinunder for ready reference: 139(5). If any person, having furnished a return under sub-section (1) or sub-section (4) of Section 139, discovers an omission or wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier 7. In our view, this provision is not applicable to the facts and circumstances of the present case since the revised Returns were not filed on account of an omission or wrong statement or omission contained therein. The delay occurred on account of the time taken to obtain sanction of the Schemes of Arrangement and Amalgamation from the NCLT. 8. In the facts of the present case, it was an impossibility for the assessee companies to have filed the revised Returns of Income for the A.Y. 2016-2017 before the due date of 31.03.2018, since the NCLT had passed the last orders granting approval and sanction of the Schemes only on 22.04.2018 and 01.05.2018. 9. The counsel appearing for the Department submitted that the Appellants ought to have made a representation to the Board under Section 119(2)(b) of the Income Tax Act for condonation of delay while filing the revised Returns. A perusal of Section 119(2)(b) shows that it is applicable in cases of genuine hardship to admit an application, claim any exemption, deduction, refund or any other relief under this Act after the expiry of the stipulated period under the Income Tax Act. Section 119(2)(b) of the Income Tax Act is reproduced hereinunder for ready reference: 119. Instructions to subordinate authorities. (2) Without prejudice to the generality of the foregoing power,— … (b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or 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. On a plain reading of Section 119(2)(b), we find that this provision would not be applicable where an assessee has restructured their business, and filed a revised Return of Income with the prior approval and sanction of the NCLT, without any objection from the Department. Rules of procedure have been construed to be the handmaiden of justice. Kailash v Nankhu (2005) 4 SCC 480 ; State of Punjab v Shamlal Murari (1976) 1 SCC 719 The purpose of assessment proceedings is to assess the tax liability of an assessee correctly in accordance with law. National Thermal Power Co. Ltd. v. Commissioner of Income Tax, (1997) 7 SCC 489 10. Section 170(1) of the Income Tax Act, provides that the successor of an assessee shall be assessed in respect of the income of the previous year after the date of succession. S.170(1) of the Income Tax Act provides as under: 170. Succession to business otherwise than on death. (1) Where a person carrying on any business or profession (such person hereinafter in this section being referred to as the predecessor) has been succeeded therein by any other person (hereinafter in this section referred to as the successor) who continues to carry on that business or profession,- (a) the predecessor shall be assessed in respect of the income of the previous year in which the succession took place up to the date of succession; (b) the successor shall be assessed in respect of the income of the previous year after the date of succession. Sub-section (1) of Section 170 makes it clear that it is incumbent upon the Department to assess the total income of the successor in respect of the previous assessment year after the date of succession. In the present case, the predecessor companies/transferor companies have been succeeded by the Appellants/transferee companies who have taken over their business along with all assets, liabilities, profits and losses etc. In view of the provisions of Section 170(1) of the Income Tax Act, the Department is required to assess the income of the Appellants after taking into account the revised Returns filed after amalgamation of the companies. 11. In light of the aforesaid discussion, we find that the learned Single Judge had rightly allowed the Writ Petitions. | 1[ds]4.9 In the present case, Appellant Nos.1 and 2/Transferee Companies filed their original Returns of Income on 30.09.2016 and 30.11.2016 respectively. Thereafter, they entered into Schemes of Arrangement and Amalgamation with 9 Transferor Companies in 2017The Schemes were finally sanctioned and approved by the NCLT, Chennai vide final orders dated 20.04.2018 and 01.05.2018. The Appointed Date as per the Schemes was 01.01.2015. Consequently, the Transferor/ Amalgamating Companies ceased to exist with effect from the Appointed Date, and the assets, profits and losses etc. were transferred to the books of the Appellants/ Transferee Companies/Amalgamated Companies. The Schemes incorporated provisions for filing the revised Returns beyond the prescribed time limit since the Schemes would come into force retrospectively from the Appointed Date i.e. 01.01.2015Accordingly, the Appellants filed their Revised Returns on 27.11.2018. The re-computation would have a bearing on the total income of the Appellants with respect to the A.Y. 2016-2018, particularly on matters in relation to carrying forward losses, unabsorbed depreciation etc6. Section 139(5) of the Income Tax Act, as it stood at the relevant time, makes it clear that where an assessee furnishes a return under sub-section (1) or sub-section (4) of Section 139, and later discovers an omission or mistake therein, he may furnish a revised Return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier7. In our view, this provision is not applicable to the facts and circumstances of the present case since the revised Returns were not filed on account of an omission or wrong statement or omission contained therein. The delay occurred on account of the time taken to obtain sanction of the Schemes of Arrangement and Amalgamation from the NCLT8. In the facts of the present case, it was an impossibility for the assessee companies to have filed the revised Returns of Income for the A.Y. 2016-2017 before the due date of 31.03.2018, since the NCLT had passed the last orders granting approval and sanction of the Schemes only on 22.04.2018 and 01.05.20189. The counsel appearing for the Department submitted that the Appellants ought to have made a representation to the Board under Section 119(2)(b) of the Income Tax Act for condonation of delay while filing the revised Returns. A perusal of Section 119(2)(b) shows that it is applicable in cases of genuine hardship to admit an application, claim any exemption, deduction, refund or any other relief under this Act after the expiry of the stipulated period under the Income Tax ActSub-section (1) of Section 170 makes it clear that it is incumbent upon the Department to assess the total income of the successor in respect of the previous assessment year after the date of successionIn the present case, the predecessor companies/transferor companies have been succeeded by the Appellants/transferee companies who have taken over their business along with all assets, liabilities, profits and losses etcIn view of the provisions of Section 170(1) of the Income Tax Act, the Department is required to assess the income of the Appellants after taking into account the revised Returns filed after amalgamation of the companies11. In light of the aforesaid discussion, we find that the learned Single Judge had rightly allowed the Writ Petitions4.5 The Department did not raise any objection within the stipulated period of 30 days despite service of notice4.6 Pursuant thereto, the Schemes were sanctioned by the NCLT, Chennai vide Orders 16.10.2017, 20.10.2017, 26.10.2017, 28.12.2017, 10.01.2018, 20.04.2018 and 01.05.2018; and, vide Orders dated 18.05.2017 and 30.08.2017 by the NCLT, Guwahati. Accordingly, the Schemes attained statutory force J.K. (Bombay) (P) Ltd. v. New Kaiser-I-Hind Spg. and Wvg. Co. Ltd., (1969) 2 SCR 866 : AIR 1970 SC 1041 : (1970) 40 Comp Cas 689; not only inter se the Transferor and Transferee Companies, but also in rem, since there was no objection raised either by the statutory authorities, the Department, or other regulators or authorities, likely to be affected by the Schemes4.7 As a consequence, when the companies merged and amalgamated into another, the amalgamating companies lost their separate identity and character, and ceased to exist upon the approval of the Schemes of Amalgamation. (Pr. Commissioner of Income Tax, New Delhi v. Maruti Suzuki India Limited, Civil Appeal No 5409 of 2019, decided on 25.07.2019)4.8 Every scheme of arrangement and amalgamation must provide for an Appointed Date. The Appointed Date is the date on which the assets and liabilities of the transferor company vest in, and stand transferred to the transferee company. The Schemes come into effect from the Appointed Date, unless modified by the Court. This Court in Marshall Sons & Co. (India) Ltd. v. ITO Marshall Sons & Co. (India) Ltd. v. ITO (1997) 2 SCC 302 held that where the Court does not prescribe any specific date but merely sanctions the scheme presented, it would follow that the date of amalgamation/date of transfer is the date specified in the scheme as the transfer dateOn a plain reading of Section 119(2)(b), we find that this provision would not be applicable where an assessee has restructured their business, and filed a revised Return of Income with the prior approval and sanction of the NCLT, without any objection from the DepartmentRules of procedure have been construed to be the handmaiden of justice. Kailash v Nankhu (2005) 4 SCC 480 ; State of Punjab v Shamlal Murari (1976) 1 SCC 719 The purpose of assessment proceedings is to assess the tax liability of an assessee correctly in accordance with law. National Thermal Power Co. Ltd. v. Commissioner of Income Tax, (1997) 7 SCC 489 | 1 | 5,766 | 1,073 | ### 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:
books of the Appellants/ Transferee Companies/Amalgamated Companies. The Schemes incorporated provisions for filing the revised Returns beyond the prescribed time limit since the Schemes would come into force retrospectively from the Appointed Date i.e. 01.01.2015. Accordingly, the Appellants filed their Revised Returns on 27.11.2018. The re-computation would have a bearing on the total income of the Appellants with respect to the A.Y. 2016-2018, particularly on matters in relation to carrying forward losses, unabsorbed depreciation etc. 5. The counsel appearing for the Department relied on Section 139(5) and 119(2)(b) of the Income Tax Act r.w. Circular No.9 of 2015 issued by the CBDT to contend that the Appellant ought to have made an application for condonation of delay, and sought permission from the CBDT, before filing the revised Returns beyond the statutory period of 31.03.2018. The Appellants having belatedly filed their revised Returns on 27.11.2018, which was beyond the due date of 31.03.2018 for A.Y. 2016-2017, the assessment could only be done on the basis of the original Returns filed by the Appellants. 6. Section 139(5) of the Income Tax Act, as it stood at the relevant time, makes it clear that where an assessee furnishes a return under sub-section (1) or sub-section (4) of Section 139, and later discovers an omission or mistake therein, he may furnish a revised Return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier. Section 139(5) of the Income Tax Act is set out hereinunder for ready reference: 139(5). If any person, having furnished a return under sub-section (1) or sub-section (4) of Section 139, discovers an omission or wrong statement therein, he may furnish a revised return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier 7. In our view, this provision is not applicable to the facts and circumstances of the present case since the revised Returns were not filed on account of an omission or wrong statement or omission contained therein. The delay occurred on account of the time taken to obtain sanction of the Schemes of Arrangement and Amalgamation from the NCLT. 8. In the facts of the present case, it was an impossibility for the assessee companies to have filed the revised Returns of Income for the A.Y. 2016-2017 before the due date of 31.03.2018, since the NCLT had passed the last orders granting approval and sanction of the Schemes only on 22.04.2018 and 01.05.2018. 9. The counsel appearing for the Department submitted that the Appellants ought to have made a representation to the Board under Section 119(2)(b) of the Income Tax Act for condonation of delay while filing the revised Returns. A perusal of Section 119(2)(b) shows that it is applicable in cases of genuine hardship to admit an application, claim any exemption, deduction, refund or any other relief under this Act after the expiry of the stipulated period under the Income Tax Act. Section 119(2)(b) of the Income Tax Act is reproduced hereinunder for ready reference: 119. Instructions to subordinate authorities. (2) Without prejudice to the generality of the foregoing power,— … (b) the Board may, if it considers it desirable or expedient so to do for avoiding genuine hardship in any case or 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. On a plain reading of Section 119(2)(b), we find that this provision would not be applicable where an assessee has restructured their business, and filed a revised Return of Income with the prior approval and sanction of the NCLT, without any objection from the Department. Rules of procedure have been construed to be the handmaiden of justice. Kailash v Nankhu (2005) 4 SCC 480 ; State of Punjab v Shamlal Murari (1976) 1 SCC 719 The purpose of assessment proceedings is to assess the tax liability of an assessee correctly in accordance with law. National Thermal Power Co. Ltd. v. Commissioner of Income Tax, (1997) 7 SCC 489 10. Section 170(1) of the Income Tax Act, provides that the successor of an assessee shall be assessed in respect of the income of the previous year after the date of succession. S.170(1) of the Income Tax Act provides as under: 170. Succession to business otherwise than on death. (1) Where a person carrying on any business or profession (such person hereinafter in this section being referred to as the predecessor) has been succeeded therein by any other person (hereinafter in this section referred to as the successor) who continues to carry on that business or profession,- (a) the predecessor shall be assessed in respect of the income of the previous year in which the succession took place up to the date of succession; (b) the successor shall be assessed in respect of the income of the previous year after the date of succession. Sub-section (1) of Section 170 makes it clear that it is incumbent upon the Department to assess the total income of the successor in respect of the previous assessment year after the date of succession. In the present case, the predecessor companies/transferor companies have been succeeded by the Appellants/transferee companies who have taken over their business along with all assets, liabilities, profits and losses etc. In view of the provisions of Section 170(1) of the Income Tax Act, the Department is required to assess the income of the Appellants after taking into account the revised Returns filed after amalgamation of the companies. 11. In light of the aforesaid discussion, we find that the learned Single Judge had rightly allowed the Writ Petitions.
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### Explanation:
4.9 In the present case, Appellant Nos.1 and 2/Transferee Companies filed their original Returns of Income on 30.09.2016 and 30.11.2016 respectively. Thereafter, they entered into Schemes of Arrangement and Amalgamation with 9 Transferor Companies in 2017The Schemes were finally sanctioned and approved by the NCLT, Chennai vide final orders dated 20.04.2018 and 01.05.2018. The Appointed Date as per the Schemes was 01.01.2015. Consequently, the Transferor/ Amalgamating Companies ceased to exist with effect from the Appointed Date, and the assets, profits and losses etc. were transferred to the books of the Appellants/ Transferee Companies/Amalgamated Companies. The Schemes incorporated provisions for filing the revised Returns beyond the prescribed time limit since the Schemes would come into force retrospectively from the Appointed Date i.e. 01.01.2015Accordingly, the Appellants filed their Revised Returns on 27.11.2018. The re-computation would have a bearing on the total income of the Appellants with respect to the A.Y. 2016-2018, particularly on matters in relation to carrying forward losses, unabsorbed depreciation etc6. Section 139(5) of the Income Tax Act, as it stood at the relevant time, makes it clear that where an assessee furnishes a return under sub-section (1) or sub-section (4) of Section 139, and later discovers an omission or mistake therein, he may furnish a revised Return at any time before the expiry of one year from the end of the relevant assessment year or before the completion of the assessment, whichever is earlier7. In our view, this provision is not applicable to the facts and circumstances of the present case since the revised Returns were not filed on account of an omission or wrong statement or omission contained therein. The delay occurred on account of the time taken to obtain sanction of the Schemes of Arrangement and Amalgamation from the NCLT8. In the facts of the present case, it was an impossibility for the assessee companies to have filed the revised Returns of Income for the A.Y. 2016-2017 before the due date of 31.03.2018, since the NCLT had passed the last orders granting approval and sanction of the Schemes only on 22.04.2018 and 01.05.20189. The counsel appearing for the Department submitted that the Appellants ought to have made a representation to the Board under Section 119(2)(b) of the Income Tax Act for condonation of delay while filing the revised Returns. A perusal of Section 119(2)(b) shows that it is applicable in cases of genuine hardship to admit an application, claim any exemption, deduction, refund or any other relief under this Act after the expiry of the stipulated period under the Income Tax ActSub-section (1) of Section 170 makes it clear that it is incumbent upon the Department to assess the total income of the successor in respect of the previous assessment year after the date of successionIn the present case, the predecessor companies/transferor companies have been succeeded by the Appellants/transferee companies who have taken over their business along with all assets, liabilities, profits and losses etcIn view of the provisions of Section 170(1) of the Income Tax Act, the Department is required to assess the income of the Appellants after taking into account the revised Returns filed after amalgamation of the companies11. In light of the aforesaid discussion, we find that the learned Single Judge had rightly allowed the Writ Petitions4.5 The Department did not raise any objection within the stipulated period of 30 days despite service of notice4.6 Pursuant thereto, the Schemes were sanctioned by the NCLT, Chennai vide Orders 16.10.2017, 20.10.2017, 26.10.2017, 28.12.2017, 10.01.2018, 20.04.2018 and 01.05.2018; and, vide Orders dated 18.05.2017 and 30.08.2017 by the NCLT, Guwahati. Accordingly, the Schemes attained statutory force J.K. (Bombay) (P) Ltd. v. New Kaiser-I-Hind Spg. and Wvg. Co. Ltd., (1969) 2 SCR 866 : AIR 1970 SC 1041 : (1970) 40 Comp Cas 689; not only inter se the Transferor and Transferee Companies, but also in rem, since there was no objection raised either by the statutory authorities, the Department, or other regulators or authorities, likely to be affected by the Schemes4.7 As a consequence, when the companies merged and amalgamated into another, the amalgamating companies lost their separate identity and character, and ceased to exist upon the approval of the Schemes of Amalgamation. (Pr. Commissioner of Income Tax, New Delhi v. Maruti Suzuki India Limited, Civil Appeal No 5409 of 2019, decided on 25.07.2019)4.8 Every scheme of arrangement and amalgamation must provide for an Appointed Date. The Appointed Date is the date on which the assets and liabilities of the transferor company vest in, and stand transferred to the transferee company. The Schemes come into effect from the Appointed Date, unless modified by the Court. This Court in Marshall Sons & Co. (India) Ltd. v. ITO Marshall Sons & Co. (India) Ltd. v. ITO (1997) 2 SCC 302 held that where the Court does not prescribe any specific date but merely sanctions the scheme presented, it would follow that the date of amalgamation/date of transfer is the date specified in the scheme as the transfer dateOn a plain reading of Section 119(2)(b), we find that this provision would not be applicable where an assessee has restructured their business, and filed a revised Return of Income with the prior approval and sanction of the NCLT, without any objection from the DepartmentRules of procedure have been construed to be the handmaiden of justice. Kailash v Nankhu (2005) 4 SCC 480 ; State of Punjab v Shamlal Murari (1976) 1 SCC 719 The purpose of assessment proceedings is to assess the tax liability of an assessee correctly in accordance with law. National Thermal Power Co. Ltd. v. Commissioner of Income Tax, (1997) 7 SCC 489
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HARYANA URBAN DEVELOPMENT AUTHORITY, KARNAL Vs. M/S. MEHTA CONSTRUCTION COMPANY AND ANOTHER | also held that the award dated 20th December 2013 is perfect and a legal one and the fact that the respondent had completed the work after thirteen and a half months proved that the respondent was not able to comply with the terms and conditions of the contract. The appellant had granted extension for completion of work time and again without imposing penalty. Further, it was an admitted case that time was essence of the contract as there was a default clause. 9. The appellant preferred an appeal under Section 37 of the Act, which has been dismissed by the impugned judgment dated 11th December 2019 passed by the Single Judge of the Punjab and Haryana High Court. The reasoning given by the High Court reads as under: 5. The Addl. District Judge, Karnal, while dismissing the objections filed by the appellant under Section 34 of the Act has observed that the arbitration award dated 20.12.2013 passed by the arbitrator is perfect and legal one and there is no ground proved on the file at the instance of the objector that the award suffers from any infirmities at all. It was further observed that the objections filed by the objector are barred by limitation as the same were not filed within the prescribed period. No plausible explanation could be given by the objector, for filing the objections at a belated stage. The Addl. District Judge, Karnal came to hold that the objections filed by the objector are not maintainable and the objections are also barred by limitation. Counsel for the appellant fails to point out any perversity in the findings returned by the court below. Counsel for the appellant miserably failed to point out as to how the objections filed by the appellant were within limitation. 10. As per sub-section (3) to Section 34 of the Act, an application for setting aside an award is to be made within three months from the date on which a party filing objections under sub-section (1) to Section 34 has received the arbitral award; or, if a request has been made under Section 33, from the date on which that request has been disposed of by the arbitral tribunal. However, the proviso states that the court may condone delay of a period up to thirty days in filing of the objections if it is satisfied that the applicant is prevented by sufficient cause from making an application under Section 34(1) of the Act. 11. In the present case, it is an accepted position that the application for setting aside of the award dated 20th December 2013 was made on 28th March 2014 accompanied by an application for condonation of delay. The court, therefore, had the power to condone the eight days delay, which was less than thirty days, in terms of the proviso to sub-section (3) to Section 34 of the Act. In the application seeking condonation of delay, it was inter alia stated that after receiving a copy of the award at about 6:50 p.m. on 20th March 2014, the appellant had engaged an empanelled advocate and the records pertaining to the arbitration case were constructed and examined. The short delay had also occurred as sanctions and approvals were required from the higher/competent authority. 12. Given the aforesaid background and the short condonable delay which had occurred, we do not think that the High Court and the Additional District Judge, Karnal were justified in refusing to condone the delay. The application for condonation of delay in filing of the objections should have been allowed. 13. Learned counsel for the respondent, however, contends that the Additional District Judge, Karnal had also dismissed the objections on merits. We have considered this contention but observe that the observation and findings recorded by the Additional District Judge are cryptic and perfunctory. The same is equally true of the reasoning given by the High Court in the impugned order, which is full of generalisation and does not deal with specific issues and contentions raised by the appellant in the objections. In particular, the objection that the claims of the respondent were barred by limitation. 14. Sub-section (1) to Section 43 of the Act states that the Limitation Act, 1963 shall apply to arbitrations as it applies to the proceedings in court. Sub-section (2) to Section 43 states that for the purpose of Section 43 and Limitation Act, an arbitration shall be deemed to have commenced on the date referred to in Section 21 of the Act [For the purpose of this decision, we need not refer to sub-section (3) to Section 43 of the Act, which provision, if relied, can be examined]. In the context of the present case, several issues would arise for consideration, including the date on which the respondent had invoked the arbitration clause, and whether there was delay thereafter in filing the application under Section 11(6) of the Act, the legal effect and consequences of the delay, the effect of the order dated 19th October 2012, etc. 15. Sub-section (2)(a) to Section 34 of the Act inserted with effect from 23rd October 2015 states that the arbitral award may be set aside by the court if the court finds the award is vitiated by patent illegality appearing on the face of the award. The proviso stipulates that the award shall not be set aside merely on the ground of erroneous application of law or by misappreciation of evidence. An award can also be set aside under sub-clause (ii) to clause (b) of Section 34(2) on the ground that it is in conflict with the public policy of India, which expression has been explained in the Explanation(s) to the said Section. 16. We have briefly noted the provisions of the Act only to highlight that the objections under Section 34 of the Act did require consideration and in-depth examination and should not have been dismissed without proper and full application of mind with reference to the provisions of the Limitation Act and the Act. | 1[ds]11. In the present case, it is an accepted position that the application for setting aside of the award dated 20th December 2013 was made on 28th March 2014 accompanied by an application for condonation of delay. The court, therefore, had the power to condone the eight days delay, which was less than thirty days, in terms of the proviso to sub-section (3) to Section 34 of the Act. In the application seeking condonation of delay, it was inter alia stated that after receiving a copy of the award at about 6:50 p.m. on 20th March 2014, the appellant had engaged an empanelled advocate and the records pertaining to the arbitration case were constructed and examined. The short delay had also occurred as sanctions and approvals were required from the higher/competent authority.12. Given the aforesaid background and the short condonable delay which had occurred, we do not think that the High Court and the Additional District Judge, Karnal were justified in refusing to condone the delay. The application for condonation of delay in filing of the objections should have been allowed.We have considered this contention but observe that the observation and findings recorded by the Additional District Judge are cryptic and perfunctory. The same is equally true of the reasoning given by the High Court in the impugned order, which is full of generalisation and does not deal with specific issues and contentions raised by the appellant in the objections. In particular, the objection that the claims of the respondent were barred by limitation.15. Sub-section (2)(a) to Section 34 of the Act inserted with effect from 23rd October 2015 states that the arbitral award may be set aside by the court if the court finds the award is vitiated by patent illegality appearing on the face of the award. The proviso stipulates that the award shall not be set aside merely on the ground of erroneous application of law or by misappreciation of evidence. An award can also be set aside under sub-clause (ii) to clause (b) of Section 34(2) on the ground that it is in conflict with the public policy of India, which expression has been explained in the Explanation(s) to the said Section.16. We have briefly noted the provisions of the Act only to highlight that the objections under Section 34 of the Act did require consideration and in-depth examination and should not have been dismissed without proper and full application of mind with reference to the provisions of the Limitation Act and the Act. | 1 | 1,546 | 464 | ### Instruction:
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also held that the award dated 20th December 2013 is perfect and a legal one and the fact that the respondent had completed the work after thirteen and a half months proved that the respondent was not able to comply with the terms and conditions of the contract. The appellant had granted extension for completion of work time and again without imposing penalty. Further, it was an admitted case that time was essence of the contract as there was a default clause. 9. The appellant preferred an appeal under Section 37 of the Act, which has been dismissed by the impugned judgment dated 11th December 2019 passed by the Single Judge of the Punjab and Haryana High Court. The reasoning given by the High Court reads as under: 5. The Addl. District Judge, Karnal, while dismissing the objections filed by the appellant under Section 34 of the Act has observed that the arbitration award dated 20.12.2013 passed by the arbitrator is perfect and legal one and there is no ground proved on the file at the instance of the objector that the award suffers from any infirmities at all. It was further observed that the objections filed by the objector are barred by limitation as the same were not filed within the prescribed period. No plausible explanation could be given by the objector, for filing the objections at a belated stage. The Addl. District Judge, Karnal came to hold that the objections filed by the objector are not maintainable and the objections are also barred by limitation. Counsel for the appellant fails to point out any perversity in the findings returned by the court below. Counsel for the appellant miserably failed to point out as to how the objections filed by the appellant were within limitation. 10. As per sub-section (3) to Section 34 of the Act, an application for setting aside an award is to be made within three months from the date on which a party filing objections under sub-section (1) to Section 34 has received the arbitral award; or, if a request has been made under Section 33, from the date on which that request has been disposed of by the arbitral tribunal. However, the proviso states that the court may condone delay of a period up to thirty days in filing of the objections if it is satisfied that the applicant is prevented by sufficient cause from making an application under Section 34(1) of the Act. 11. In the present case, it is an accepted position that the application for setting aside of the award dated 20th December 2013 was made on 28th March 2014 accompanied by an application for condonation of delay. The court, therefore, had the power to condone the eight days delay, which was less than thirty days, in terms of the proviso to sub-section (3) to Section 34 of the Act. In the application seeking condonation of delay, it was inter alia stated that after receiving a copy of the award at about 6:50 p.m. on 20th March 2014, the appellant had engaged an empanelled advocate and the records pertaining to the arbitration case were constructed and examined. The short delay had also occurred as sanctions and approvals were required from the higher/competent authority. 12. Given the aforesaid background and the short condonable delay which had occurred, we do not think that the High Court and the Additional District Judge, Karnal were justified in refusing to condone the delay. The application for condonation of delay in filing of the objections should have been allowed. 13. Learned counsel for the respondent, however, contends that the Additional District Judge, Karnal had also dismissed the objections on merits. We have considered this contention but observe that the observation and findings recorded by the Additional District Judge are cryptic and perfunctory. The same is equally true of the reasoning given by the High Court in the impugned order, which is full of generalisation and does not deal with specific issues and contentions raised by the appellant in the objections. In particular, the objection that the claims of the respondent were barred by limitation. 14. Sub-section (1) to Section 43 of the Act states that the Limitation Act, 1963 shall apply to arbitrations as it applies to the proceedings in court. Sub-section (2) to Section 43 states that for the purpose of Section 43 and Limitation Act, an arbitration shall be deemed to have commenced on the date referred to in Section 21 of the Act [For the purpose of this decision, we need not refer to sub-section (3) to Section 43 of the Act, which provision, if relied, can be examined]. In the context of the present case, several issues would arise for consideration, including the date on which the respondent had invoked the arbitration clause, and whether there was delay thereafter in filing the application under Section 11(6) of the Act, the legal effect and consequences of the delay, the effect of the order dated 19th October 2012, etc. 15. Sub-section (2)(a) to Section 34 of the Act inserted with effect from 23rd October 2015 states that the arbitral award may be set aside by the court if the court finds the award is vitiated by patent illegality appearing on the face of the award. The proviso stipulates that the award shall not be set aside merely on the ground of erroneous application of law or by misappreciation of evidence. An award can also be set aside under sub-clause (ii) to clause (b) of Section 34(2) on the ground that it is in conflict with the public policy of India, which expression has been explained in the Explanation(s) to the said Section. 16. We have briefly noted the provisions of the Act only to highlight that the objections under Section 34 of the Act did require consideration and in-depth examination and should not have been dismissed without proper and full application of mind with reference to the provisions of the Limitation Act and the Act.
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11. In the present case, it is an accepted position that the application for setting aside of the award dated 20th December 2013 was made on 28th March 2014 accompanied by an application for condonation of delay. The court, therefore, had the power to condone the eight days delay, which was less than thirty days, in terms of the proviso to sub-section (3) to Section 34 of the Act. In the application seeking condonation of delay, it was inter alia stated that after receiving a copy of the award at about 6:50 p.m. on 20th March 2014, the appellant had engaged an empanelled advocate and the records pertaining to the arbitration case were constructed and examined. The short delay had also occurred as sanctions and approvals were required from the higher/competent authority.12. Given the aforesaid background and the short condonable delay which had occurred, we do not think that the High Court and the Additional District Judge, Karnal were justified in refusing to condone the delay. The application for condonation of delay in filing of the objections should have been allowed.We have considered this contention but observe that the observation and findings recorded by the Additional District Judge are cryptic and perfunctory. The same is equally true of the reasoning given by the High Court in the impugned order, which is full of generalisation and does not deal with specific issues and contentions raised by the appellant in the objections. In particular, the objection that the claims of the respondent were barred by limitation.15. Sub-section (2)(a) to Section 34 of the Act inserted with effect from 23rd October 2015 states that the arbitral award may be set aside by the court if the court finds the award is vitiated by patent illegality appearing on the face of the award. The proviso stipulates that the award shall not be set aside merely on the ground of erroneous application of law or by misappreciation of evidence. An award can also be set aside under sub-clause (ii) to clause (b) of Section 34(2) on the ground that it is in conflict with the public policy of India, which expression has been explained in the Explanation(s) to the said Section.16. We have briefly noted the provisions of the Act only to highlight that the objections under Section 34 of the Act did require consideration and in-depth examination and should not have been dismissed without proper and full application of mind with reference to the provisions of the Limitation Act and the Act.
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KANNA TIMMA KANAJI MADIWAL (D) THR. LR Vs. RAMACHANDRA TIMMAYA HEGDE (D) THR. LRS | said legatee, being related to the deceased tenant by legitimate kinship, had already been declared to be the successor of the tenant in the civil suit in presence of all the relevant parties, including the respondents, with categorical finding that the wife of tenant had left and ceased to be his heir after having contacted other marriage.14. On the admitted fact situation of the present case and on the concluded findings, the net position obtainable is as follows: The deceased Gutya was the tenant in the land in question. No doubt, Smt. Gauri was the wife of Gutya and, had she retained this status, she would have been his Class I heir, in terms of the Schedule to the Hindu Succession Act, 1956. However, the concluded findings in the civil suit filed by Timma (with the present respondent being parties thereto) are to the effect that Smt. Gauri left Gutya, contacted second marriage with Jatya, and begot two children from such marriage. In sequel to these findings and in view of the other evidence on record, it was held in the said civil suit conclusively that Smt. Gauri was not the heir of Gutya. It was also held conclusively that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings have attained finality with dismissal of appeals and ultimately, with dismissal of the petition for Special Leave to Appeal in this Court. Moreover, these findings bind the present respondent fair and square, for they were parties to the said suit and in fact, only they had pursued the matter in appeals, though unsuccessfully. In the face of these concluded findings, we find absolutely no justification that the High Court proceeded in the impugned orders on the premise that Smt. Gauri was the heir of Gutya for being his wife. The effect of the abovementioned findings of the civil Court has been brushed aside by the High Court with a few observations that the fact of existence of the wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights. As noticed, on the date of filing of such application, the suit filed by Timma had already been decreed by the Trial Court with the findings aforesaid, although the matter was pending in appeal. In any case, the concluded and binding findings of the civil Courts did not lose their worth if the fact about erstwhile wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights; and the High Court could not have treated such findings as nugatory or redundant.14.1. So far the legal effect of the said Will by the tenant Gutya in favour of his brother Timma is concerned, as noticed, Timma was definitely related to Gutya by legitimate kinship, being his brother. Hence, the Will is not hit by the embargo, whether that contained in Section 27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori, the application made by Timma in Form 7 under Section 48-A of the Act of 1961 for grant of occupancy rights in respect of the land in question could not have been denied.15. An observation made by the High Court, about the appellant having made a statement before the Land Tribunal as if to give up his claim as tenant of the land in question, has only been noted to be disapproved. It is noticed that the Land Tribunal proceeded to reject the claim in relation to the land in question by way of its order dated 22.09.1981 in a wholly cursory manner with reference to the alleged statement made by the appellant but without appreciating that the statement was required to be understood contextually where certain parcels of land in which Timma was the tenant in his own right were also being described. In that context, it was clarified that Timma was, as such, not the tenant in relation to the land in question; meaning thereby that Timma was not the original tenant. The statement was not incorrect because Gutya was the original tenant qua the land in question. Such a bonafide statement could not have operated against the claim of occupancy rights in respect of the land in question, when the claim was essentially based on the Will in favour of Timma and his cultivatory possession.16. As noticed, the appeal against the aforesaid order of the Land Tribunal was not decided on merits. Rather, the approach of the Appellate Authority had been a bit too exacting where the appeal was dismissed in default and then, the application for restoration was dismissed with a hyper-technical view of the matter and for delay of one day in filing. In revision petition against the order so passed by the Appellate Authority, the High Court, even without having the benefit of a considered decision of the Appellate Authority, chose to deal with the matter on merits and rejected the claim of the appellant on either irrelevant considerations or while overlooking the effect of the findings in the civil suit between the parties as also the ratio in Sangappa (supra). In our view, while adopting such a course, of deciding the matter on merits without having the finding of the Appellate Authority, it was moreover required of the High Court to examine the record in proper perspective; and, for that matter, the decisions rendered in the civil suit filed by Timma, which carried concluded findings on the basic issues involved in the litigation, ought to have been examined in requisite details.17. The upshot of the discussion foregoing is that the impugned orders cannot be sustained and it is beyond the pale of doubt that the application filed by the appellant by Timma for grant of occupancy rights in respect of the land in question deserves to be allowed. | 1[ds]It may, however, be noticed that the prohibition contained in Section 21(1) and the restriction contained in Section 61(1) of the Act of 1961 operate in different fields inasmuch as Section 21(1) occurs in Chapter II of the Act of 1961, making general provisions regarding the tenancy and rights and obligations of a tenant of an agricultural land. Section 61, on the other hand, occurs in Chapter III, dealing with conformant of ownership on tenants by way of their registration as occupants. In other words, the restriction envisaged by Section 61 of the Act of 1961 comes into operation after a tenant has acquired occupancy rights whereas the prohibition contained in Section 21 operates at the stage before acquisition of occupancy rights and in relation to the tenancy simpliciter.It is at once clear from the provisions and the decisions above referred that in the scheme of the Act of 1948 as also the Act of 1961, when a person had been inducted as tenant, heritable right comes into existence with certain embargo over transferability of such tenancy. In other words, such tenancy continues even after the demise of tenant. If the deceased tenant was a member of joint family, then the surviving members of the joint family; and if he was not a member of joint family, his heirs would be entitled to claim partition subject to the conditions specified. However, the tenanted land cannot be sub-let nor any interest therein could be assigned. In Sangappa (supra), this Court has explained the object behind such embargo that strangers to the family of tenant were not to be allowed to come upon the tenanted land. Even disposition under a Will is held covered within the wide sweep of the expression ?assignment? for the purpose of the Act of 1961 but with the significant, and rather pertinent, exception that such embargo does not prevent a bequeath in favour of the heirs noticed in the said provisions. This Court said in no uncertain terms that: ‘the deceased tenant can assign his rights only to the heirs noticed in the provision and such heirs could only be the spouse or any descendants or one who is related to the deceased tenant by legitimate kinship?. This enunciation is neither curtailed nor whittled down in Jayamma?s case (supra).13. As noticed, the decision in Jayamma (supra) had been on the interpretation of Section 61 of the Act of 1961, where stricter embargo is envisaged, being related to a different provision that operates in a different field and comes into effect after acquiring of occupancy rights. Moreover, in Jayamma?s case, the legatee, a neighbour, was found to be having no legitimate kinship with the testator; and the Will in question was executed within the period of 15 years from the date of grant, which was prohibited by law. Hence, the decision in Jayamma?s case has no adverse effect on the claim in the present case for the obvious reasons that: (a) the present case relates to the stage before acquisition of occupancy rights; and (b) the legatee of the Will in question before us, Timma, had been none other than the brother of the deceased tenant, Gutya; and the said legatee, being related to the deceased tenant by legitimate kinship, had already been declared to be the successor of the tenant in the civil suit in presence of all the relevant parties, including the respondents, with categorical finding that the wife of tenant had left and ceased to be his heir after having contacted other marriage.14. On the admitted fact situation of the present case and on the concluded findings, the net position obtainable is as follows: The deceased Gutya was the tenant in the land in question. No doubt, Smt. Gauri was the wife of Gutya and, had she retained this status, she would have been his Class I heir, in terms of the Schedule to the Hindu Succession Act, 1956. However, the concluded findings in the civil suit filed by Timma (with the present respondent being parties thereto) are to the effect that Smt. Gauri left Gutya, contacted second marriage with Jatya, and begot two children from such marriage. In sequel to these findings and in view of the other evidence on record, it was held in the said civil suit conclusively that Smt. Gauri was not the heir of Gutya. It was also held conclusively that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings have attained finality with dismissal of appeals and ultimately, with dismissal of the petition for Special Leave to Appeal in this Court. Moreover, these findings bind the present respondent fair and square, for they were parties to the said suit and in fact, only they had pursued the matter in appeals, though unsuccessfully. In the face of these concluded findings, we find absolutely no justification that the High Court proceeded in the impugned orders on the premise that Smt. Gauri was the heir of Gutya for being his wife. The effect of the abovementioned findings of the civil Court has been brushed aside by the High Court with a few observations that the fact of existence of the wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights. As noticed, on the date of filing of such application, the suit filed by Timma had already been decreed by the Trial Court with the findings aforesaid, although the matter was pending in appeal. In any case, the concluded and binding findings of the civil Courts did not lose their worth if the fact about erstwhile wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights; and the High Court could not have treated such findings as nugatory or redundant.14.1. So far the legal effect of the said Will by the tenant Gutya in favour of his brother Timma is concerned, as noticed, Timma was definitely related to Gutya by legitimate kinship, being his brother. Hence, the Will is not hit by the embargo, whether that contained in Section 27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori, the application made by Timma in Form 7 under Section 48-A of the Act of 1961 for grant of occupancy rights in respect of the land in question could not have been denied.15. An observation made by the High Court, about the appellant having made a statement before the Land Tribunal as if to give up his claim as tenant of the land in question, has only been noted to be disapproved. It is noticed that the Land Tribunal proceeded to reject the claim in relation to the land in question by way of its order dated 22.09.1981 in a wholly cursory manner with reference to the alleged statement made by the appellant but without appreciating that the statement was required to be understood contextually where certain parcels of land in which Timma was the tenant in his own right were also being described. In that context, it was clarified that Timma was, as such, not the tenant in relation to the land in question; meaning thereby that Timma was not the original tenant. The statement was not incorrect because Gutya was the original tenant qua the land in question. Such a bonafide statement could not have operated against the claim of occupancy rights in respect of the land in question, when the claim was essentially based on the Will in favour of Timma and his cultivatory possession.16. As noticed, the appeal against the aforesaid order of the Land Tribunal was not decided on merits. Rather, the approach of the Appellate Authority had been a bit too exacting where the appeal was dismissed in default and then, the application for restoration was dismissed with a hyper-technical view of the matter and for delay of one day in filing. In revision petition against the order so passed by the Appellate Authority, the High Court, even without having the benefit of a considered decision of the Appellate Authority, chose to deal with the matter on merits and rejected the claim of the appellant on either irrelevant considerations or while overlooking the effect of the findings in the civil suit between the parties as also the ratio in Sangappa (supra). In our view, while adopting such a course, of deciding the matter on merits without having the finding of the Appellate Authority, it was moreover required of the High Court to examine the record in proper perspective; and, for that matter, the decisions rendered in the civil suit filed by Timma, which carried concluded findings on the basic issues involved in the litigation, ought to have been examined in requisite details.17. The upshot of the discussion foregoing is that the impugned orders cannot be sustained and it is beyond the pale of doubt that the application filed by the appellant by Timma for grant of occupancy rights in respect of the land in question deserves to be allowed.Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of the view that the answer to the question aforesaid could only be in the negative and the impugned orders cannot be sustained. | 1 | 9,836 | 1,750 | ### Instruction:
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said legatee, being related to the deceased tenant by legitimate kinship, had already been declared to be the successor of the tenant in the civil suit in presence of all the relevant parties, including the respondents, with categorical finding that the wife of tenant had left and ceased to be his heir after having contacted other marriage.14. On the admitted fact situation of the present case and on the concluded findings, the net position obtainable is as follows: The deceased Gutya was the tenant in the land in question. No doubt, Smt. Gauri was the wife of Gutya and, had she retained this status, she would have been his Class I heir, in terms of the Schedule to the Hindu Succession Act, 1956. However, the concluded findings in the civil suit filed by Timma (with the present respondent being parties thereto) are to the effect that Smt. Gauri left Gutya, contacted second marriage with Jatya, and begot two children from such marriage. In sequel to these findings and in view of the other evidence on record, it was held in the said civil suit conclusively that Smt. Gauri was not the heir of Gutya. It was also held conclusively that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings have attained finality with dismissal of appeals and ultimately, with dismissal of the petition for Special Leave to Appeal in this Court. Moreover, these findings bind the present respondent fair and square, for they were parties to the said suit and in fact, only they had pursued the matter in appeals, though unsuccessfully. In the face of these concluded findings, we find absolutely no justification that the High Court proceeded in the impugned orders on the premise that Smt. Gauri was the heir of Gutya for being his wife. The effect of the abovementioned findings of the civil Court has been brushed aside by the High Court with a few observations that the fact of existence of the wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights. As noticed, on the date of filing of such application, the suit filed by Timma had already been decreed by the Trial Court with the findings aforesaid, although the matter was pending in appeal. In any case, the concluded and binding findings of the civil Courts did not lose their worth if the fact about erstwhile wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights; and the High Court could not have treated such findings as nugatory or redundant.14.1. So far the legal effect of the said Will by the tenant Gutya in favour of his brother Timma is concerned, as noticed, Timma was definitely related to Gutya by legitimate kinship, being his brother. Hence, the Will is not hit by the embargo, whether that contained in Section 27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori, the application made by Timma in Form 7 under Section 48-A of the Act of 1961 for grant of occupancy rights in respect of the land in question could not have been denied.15. An observation made by the High Court, about the appellant having made a statement before the Land Tribunal as if to give up his claim as tenant of the land in question, has only been noted to be disapproved. It is noticed that the Land Tribunal proceeded to reject the claim in relation to the land in question by way of its order dated 22.09.1981 in a wholly cursory manner with reference to the alleged statement made by the appellant but without appreciating that the statement was required to be understood contextually where certain parcels of land in which Timma was the tenant in his own right were also being described. In that context, it was clarified that Timma was, as such, not the tenant in relation to the land in question; meaning thereby that Timma was not the original tenant. The statement was not incorrect because Gutya was the original tenant qua the land in question. Such a bonafide statement could not have operated against the claim of occupancy rights in respect of the land in question, when the claim was essentially based on the Will in favour of Timma and his cultivatory possession.16. As noticed, the appeal against the aforesaid order of the Land Tribunal was not decided on merits. Rather, the approach of the Appellate Authority had been a bit too exacting where the appeal was dismissed in default and then, the application for restoration was dismissed with a hyper-technical view of the matter and for delay of one day in filing. In revision petition against the order so passed by the Appellate Authority, the High Court, even without having the benefit of a considered decision of the Appellate Authority, chose to deal with the matter on merits and rejected the claim of the appellant on either irrelevant considerations or while overlooking the effect of the findings in the civil suit between the parties as also the ratio in Sangappa (supra). In our view, while adopting such a course, of deciding the matter on merits without having the finding of the Appellate Authority, it was moreover required of the High Court to examine the record in proper perspective; and, for that matter, the decisions rendered in the civil suit filed by Timma, which carried concluded findings on the basic issues involved in the litigation, ought to have been examined in requisite details.17. The upshot of the discussion foregoing is that the impugned orders cannot be sustained and it is beyond the pale of doubt that the application filed by the appellant by Timma for grant of occupancy rights in respect of the land in question deserves to be allowed.
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had left and ceased to be his heir after having contacted other marriage.14. On the admitted fact situation of the present case and on the concluded findings, the net position obtainable is as follows: The deceased Gutya was the tenant in the land in question. No doubt, Smt. Gauri was the wife of Gutya and, had she retained this status, she would have been his Class I heir, in terms of the Schedule to the Hindu Succession Act, 1956. However, the concluded findings in the civil suit filed by Timma (with the present respondent being parties thereto) are to the effect that Smt. Gauri left Gutya, contacted second marriage with Jatya, and begot two children from such marriage. In sequel to these findings and in view of the other evidence on record, it was held in the said civil suit conclusively that Smt. Gauri was not the heir of Gutya. It was also held conclusively that Timma was the heir of Gutya; that Gutya had executed the Will in favour of Timma bequeathing his rights in the land in question; and that Timma was in possession of the land in question. These findings have attained finality with dismissal of appeals and ultimately, with dismissal of the petition for Special Leave to Appeal in this Court. Moreover, these findings bind the present respondent fair and square, for they were parties to the said suit and in fact, only they had pursued the matter in appeals, though unsuccessfully. In the face of these concluded findings, we find absolutely no justification that the High Court proceeded in the impugned orders on the premise that Smt. Gauri was the heir of Gutya for being his wife. The effect of the abovementioned findings of the civil Court has been brushed aside by the High Court with a few observations that the fact of existence of the wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights. As noticed, on the date of filing of such application, the suit filed by Timma had already been decreed by the Trial Court with the findings aforesaid, although the matter was pending in appeal. In any case, the concluded and binding findings of the civil Courts did not lose their worth if the fact about erstwhile wife of Gutya was not mentioned in the application made by Timma for grant of occupancy rights; and the High Court could not have treated such findings as nugatory or redundant.14.1. So far the legal effect of the said Will by the tenant Gutya in favour of his brother Timma is concerned, as noticed, Timma was definitely related to Gutya by legitimate kinship, being his brother. Hence, the Will is not hit by the embargo, whether that contained in Section 27(1) of the Act of 1948 or in Section 21 of the Act of 1961. A fortiori, the application made by Timma in Form 7 under Section 48-A of the Act of 1961 for grant of occupancy rights in respect of the land in question could not have been denied.15. An observation made by the High Court, about the appellant having made a statement before the Land Tribunal as if to give up his claim as tenant of the land in question, has only been noted to be disapproved. It is noticed that the Land Tribunal proceeded to reject the claim in relation to the land in question by way of its order dated 22.09.1981 in a wholly cursory manner with reference to the alleged statement made by the appellant but without appreciating that the statement was required to be understood contextually where certain parcels of land in which Timma was the tenant in his own right were also being described. In that context, it was clarified that Timma was, as such, not the tenant in relation to the land in question; meaning thereby that Timma was not the original tenant. The statement was not incorrect because Gutya was the original tenant qua the land in question. Such a bonafide statement could not have operated against the claim of occupancy rights in respect of the land in question, when the claim was essentially based on the Will in favour of Timma and his cultivatory possession.16. As noticed, the appeal against the aforesaid order of the Land Tribunal was not decided on merits. Rather, the approach of the Appellate Authority had been a bit too exacting where the appeal was dismissed in default and then, the application for restoration was dismissed with a hyper-technical view of the matter and for delay of one day in filing. In revision petition against the order so passed by the Appellate Authority, the High Court, even without having the benefit of a considered decision of the Appellate Authority, chose to deal with the matter on merits and rejected the claim of the appellant on either irrelevant considerations or while overlooking the effect of the findings in the civil suit between the parties as also the ratio in Sangappa (supra). In our view, while adopting such a course, of deciding the matter on merits without having the finding of the Appellate Authority, it was moreover required of the High Court to examine the record in proper perspective; and, for that matter, the decisions rendered in the civil suit filed by Timma, which carried concluded findings on the basic issues involved in the litigation, ought to have been examined in requisite details.17. The upshot of the discussion foregoing is that the impugned orders cannot be sustained and it is beyond the pale of doubt that the application filed by the appellant by Timma for grant of occupancy rights in respect of the land in question deserves to be allowed.Having given anxious consideration to the rival submissions and having examined the record with reference to the law applicable, we are clearly of the view that the answer to the question aforesaid could only be in the negative and the impugned orders cannot be sustained.
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Mysore Kirloskar Limited Vs. Workers of The Mysore Kirloskar Limited | reserve which was Rs. 36.24 lacs in considering what sum had been used as working capital. This view of the tribunal is clearly incorrect in view of this Courts decision in The Tata Oil Mills Co. Ltd. v. Its Workmen. (2) In that case it was pointed out that-"a return is allowed on the reserves used as working capital on the ground that if these reserves are not used for this purpose, the concern would have to borrow money and pay interest on that. This being the basis on which a return on reserves used as working capital is allowed, there is no reason why, if there is in fact money available in the depreciation reserve and if that money is actually used during the year as working capital a return should not be allowed on such money also."5. The same view was taken by this Court in Petlad Turkey Red Dye Works Ltd. v. Dyes and Chemical Workers Union, where it was emphasised that the balance-sheet did not by itself prove the fact of utilisation of reserve as working capital and the law required that such an important fact as the utilisation of a portion of the reserve as working capital had to be proved by the employer by evidence given on affidavit or otherwise and after giving an opportunity to the workmen to contest the correctness of such evidence by cross- examination. Therefore the tribunal in this case was not right in excluding the amount in the depreciation reserve altogether from consideration on the ground that it was a reserve for depreciation.6. This brings us to the question as to what amount was actually used as working capital out of the reserve in the relevant year. On that point there was the evidence of Shri M. S. Vartak who was the Secretary of the Appellant company. That evidence as to utilisation of the reserve as working capital was accepted by the tribunal. The statement of Shri Vartak shows that the amount shown in the revised calculations as to the working capital was actually used as working capital during the year. Thus, according to this statement, Rs. 36.70 lacs were used as working capital and the appellant claims return on that amount. It tmay be accepted that the sum of Rs. 36.70 lacs was used as working capital by the appellant during the year; but we are of opinion that the appellant is not entitled to a return on this entire amount, for the reason that this amount includes a sum of Rs. 14.56 lacs which was either borrowed by the appellant or was in deposit with it, on which the appellant was paying interest. The appellant therefore cannot claim further interest on this borrowed amount which has been used as working capital, for it has already paid interest on it to those from whom it was borrowed and this has been taken into account as expense in arriving at the gross profits. As was pointed out in The Tata Oil Mills Co.s case, the basis for giving a return on reserves used as working capital is that otherwise money would have to be borrowed for that purpose. Where borrowed money is used as working capital there is no question of giving any further return on this borrowed money. The return on reserves used at working capital can only be given on moneys belonging to the company which are used as working capital. Therefore, though Rs. 36.70 lacs might have actually been used as working capital in the relevant year, Rs. 14.56 lacs were borrowed money on which interest was paid. There is no question therefore of any further return on this amount as prior charge. Thus the amount on which the appellant is entitled to the return on working capital as a prior charge is Rs. 36.70 lacs minus Rs. 14.56 lacs, i.e. Rs. 22.14 lacs. The return on this amount at three per cent comes to .66 lacs and the calculations made by the tribunal would have to be corrected accordingly.7. Turning now to the claim for rehabilitation it is enough to say that no evidence as to rehabilitation was led in this case. It may be that this was because the appellant expected that the claim it was making on other items of prior charges would be sufficient to resist the claim for further bonus besides one months bonus already paid. The learned Attorney- General therefore submitted that the case might be remanded to enable the appellant to lead evidence on the question of rehabilitation. The dispute relates to the year 1954-55 and we think it is too late now to make a remand in order to determine this question. We should however like to make it clear that the fact that no evidence as to rehabilitation was led in this year will not preclude the appellant from leading evidence as to the amount which should be allowed to it as prior charge on account of rehabilitation, in any subsequent dispute as to bonus relating to subsequent years. In the present case, however, it is not possible to allow any amount for rehabilitation as a prior charge.8. The final calculations therefore after the corrections made by us are as below:In Lacs Gross Profits ---------- Rs. 9.46 Deduct-National normal depreciation... 3.32 -------- Balance 6.14 Deduct-income-tax 2.25 -------- Balance 3.89 Deduct-return on paid up capital 1.33 -------- Balance 2.56 Deduct-return on working capital at 3% .66 -------- Available surplus 1.90 --------9. The available surplus therefore for this year must be held to be Rs. 1.90 lacs roughly. One months wages come to roughly Rs. .64 lacs. It seems to us therefore that it will be fair to allow 1 1/2 months wages as bonus for this year, which would come to about Rs. .96 lacs. The appellant will get some rebate on that from the income-tax department. We are therefore of opinion that the workmen are entitled to an additional bonus for half a month for this year. | 1[ds]It appears that the gross profits of the appellant were Rs. 9.46 lacs, while the full statutory depreciation allowed to the appellant for the year in dispute was Rs. 4.30 lacs. Thus income-tax should have been deducted on the sum of Rs. 5.16 lacs at seven annas in the rupee, which was the rate prevalent in the relevant year. This amount comes to Rs. 2.25 lacks. The contention of the appellant in this behalf is in our opinion correct and the calculation made by the tribunal will have to be modifieddispute is both as to the rate of return and the amount on which it should be allowed. The tribunal has allowed three per cent on workingwas pointed out in the Associated Cement Companies case the rate allowed by tribunals on working capital is between two to four per cent. In the present case the tribunal has allowed three per cent. We do not think that there is any reason for us to interfere with the discretion of the tribunal in this matter though it is true that the recent trend of tribunals is to allow four per cent return on working capital.4. Turning now to the amount of working capital on which return should have been allowed, the appellant originally claimed that the amount used as working capital was Rs. 43.85 lacs. Latter however, a revised statement was put in and the amount was reduced to Rs. 36.70 lacs. The tribunal has however calculated the working capital used in the business as Rs. 7.85 lacs. The main reason why the tribunal arrived at this figure was that it held that the amount in the depreciation reserve could not be treated as reserve used as working capital on which a return was admissible. It therefore excluded out of consideration the entire amount in the depreciation reserve which was Rs. 36.24 lacs in considering what sum had been used as working capital. This view of the tribunal is clearly incorrect in view of this Courts decision in The Tata Oil Mills Co. Ltd. v. Itsthe tribunal in this case was not right in excluding the amount in the depreciation reserve altogether from consideration on the ground that it was a reserve foraccording to this statement, Rs. 36.70 lacs were used as working capital and the appellant claims return on that amount. It tmay be accepted that the sum of Rs. 36.70 lacs was used as working capital by the appellant during the year; but we are of opinion that the appellant is not entitled to a return on this entire amount, for the reason that this amount includes a sum of Rs. 14.56 lacs which was either borrowed by the appellant or was in deposit with it, on which the appellant was paying interest. The appellant therefore cannot claim further interest on this borrowed amount which has been used as working capital, for it has already paid interest on it to those from whom it was borrowed and this has been taken into account as expense in arriving at the gross profits. As was pointed out in The Tata Oil Mills Co.s case, the basis for giving a return on reserves used as working capital is that otherwise money would have to be borrowed for that purpose. Where borrowed money is used as working capital there is no question of giving any further return on this borrowed money. The return on reserves used at working capital can only be given on moneys belonging to the company which are used as working capital. Therefore, though Rs. 36.70 lacs might have actually been used as working capital in the relevant year, Rs. 14.56 lacs were borrowed money on which interest was paid. There is no question therefore of any further return on this amount as prior charge. Thus the amount on which the appellant is entitled to the return on working capital as a prior charge is Rs. 36.70 lacs minus Rs. 14.56 lacs, i.e. Rs. 22.14 lacs. The return on this amount at three per cent comes to .66 lacs and the calculations made by the tribunal would have to be corrected accordingly.7. Turning now to the claim for rehabilitation it is enough to say that no evidence as to rehabilitation was led in this case. It may be that this was because the appellant expected that the claim it was making on other items of prior charges would be sufficient to resist the claim for further bonus besides one months bonus alreadydispute relates to the year 1954-55 and we think it is too late now to make a remand in order to determine this question. We should however like to make it clear that the fact that no evidence as to rehabilitation was led in this year will not preclude the appellant from leading evidence as to the amount which should be allowed to it as prior charge on account of rehabilitation, in any subsequent dispute as to bonus relating to subsequent years. In the present case, however, it is not possible to allow any amount for rehabilitation as a prior charge.The available surplus therefore for this year must be held to be Rs. 1.90 lacs roughly. One months wages come to roughly Rs. .64 lacs. It seems to us therefore that it will be fair to allow 1 1/2 months wages as bonus for this year, which would come to about Rs. .96 lacs. The appellant will get some rebate on that from the income-tax department. We are therefore of opinion that the workmen are entitled to an additional bonus for half a month for this year. | 1 | 1,657 | 1,009 | ### 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:
reserve which was Rs. 36.24 lacs in considering what sum had been used as working capital. This view of the tribunal is clearly incorrect in view of this Courts decision in The Tata Oil Mills Co. Ltd. v. Its Workmen. (2) In that case it was pointed out that-"a return is allowed on the reserves used as working capital on the ground that if these reserves are not used for this purpose, the concern would have to borrow money and pay interest on that. This being the basis on which a return on reserves used as working capital is allowed, there is no reason why, if there is in fact money available in the depreciation reserve and if that money is actually used during the year as working capital a return should not be allowed on such money also."5. The same view was taken by this Court in Petlad Turkey Red Dye Works Ltd. v. Dyes and Chemical Workers Union, where it was emphasised that the balance-sheet did not by itself prove the fact of utilisation of reserve as working capital and the law required that such an important fact as the utilisation of a portion of the reserve as working capital had to be proved by the employer by evidence given on affidavit or otherwise and after giving an opportunity to the workmen to contest the correctness of such evidence by cross- examination. Therefore the tribunal in this case was not right in excluding the amount in the depreciation reserve altogether from consideration on the ground that it was a reserve for depreciation.6. This brings us to the question as to what amount was actually used as working capital out of the reserve in the relevant year. On that point there was the evidence of Shri M. S. Vartak who was the Secretary of the Appellant company. That evidence as to utilisation of the reserve as working capital was accepted by the tribunal. The statement of Shri Vartak shows that the amount shown in the revised calculations as to the working capital was actually used as working capital during the year. Thus, according to this statement, Rs. 36.70 lacs were used as working capital and the appellant claims return on that amount. It tmay be accepted that the sum of Rs. 36.70 lacs was used as working capital by the appellant during the year; but we are of opinion that the appellant is not entitled to a return on this entire amount, for the reason that this amount includes a sum of Rs. 14.56 lacs which was either borrowed by the appellant or was in deposit with it, on which the appellant was paying interest. The appellant therefore cannot claim further interest on this borrowed amount which has been used as working capital, for it has already paid interest on it to those from whom it was borrowed and this has been taken into account as expense in arriving at the gross profits. As was pointed out in The Tata Oil Mills Co.s case, the basis for giving a return on reserves used as working capital is that otherwise money would have to be borrowed for that purpose. Where borrowed money is used as working capital there is no question of giving any further return on this borrowed money. The return on reserves used at working capital can only be given on moneys belonging to the company which are used as working capital. Therefore, though Rs. 36.70 lacs might have actually been used as working capital in the relevant year, Rs. 14.56 lacs were borrowed money on which interest was paid. There is no question therefore of any further return on this amount as prior charge. Thus the amount on which the appellant is entitled to the return on working capital as a prior charge is Rs. 36.70 lacs minus Rs. 14.56 lacs, i.e. Rs. 22.14 lacs. The return on this amount at three per cent comes to .66 lacs and the calculations made by the tribunal would have to be corrected accordingly.7. Turning now to the claim for rehabilitation it is enough to say that no evidence as to rehabilitation was led in this case. It may be that this was because the appellant expected that the claim it was making on other items of prior charges would be sufficient to resist the claim for further bonus besides one months bonus already paid. The learned Attorney- General therefore submitted that the case might be remanded to enable the appellant to lead evidence on the question of rehabilitation. The dispute relates to the year 1954-55 and we think it is too late now to make a remand in order to determine this question. We should however like to make it clear that the fact that no evidence as to rehabilitation was led in this year will not preclude the appellant from leading evidence as to the amount which should be allowed to it as prior charge on account of rehabilitation, in any subsequent dispute as to bonus relating to subsequent years. In the present case, however, it is not possible to allow any amount for rehabilitation as a prior charge.8. The final calculations therefore after the corrections made by us are as below:In Lacs Gross Profits ---------- Rs. 9.46 Deduct-National normal depreciation... 3.32 -------- Balance 6.14 Deduct-income-tax 2.25 -------- Balance 3.89 Deduct-return on paid up capital 1.33 -------- Balance 2.56 Deduct-return on working capital at 3% .66 -------- Available surplus 1.90 --------9. The available surplus therefore for this year must be held to be Rs. 1.90 lacs roughly. One months wages come to roughly Rs. .64 lacs. It seems to us therefore that it will be fair to allow 1 1/2 months wages as bonus for this year, which would come to about Rs. .96 lacs. The appellant will get some rebate on that from the income-tax department. We are therefore of opinion that the workmen are entitled to an additional bonus for half a month for this year.
### Response:
1
### Explanation:
It appears that the gross profits of the appellant were Rs. 9.46 lacs, while the full statutory depreciation allowed to the appellant for the year in dispute was Rs. 4.30 lacs. Thus income-tax should have been deducted on the sum of Rs. 5.16 lacs at seven annas in the rupee, which was the rate prevalent in the relevant year. This amount comes to Rs. 2.25 lacks. The contention of the appellant in this behalf is in our opinion correct and the calculation made by the tribunal will have to be modifieddispute is both as to the rate of return and the amount on which it should be allowed. The tribunal has allowed three per cent on workingwas pointed out in the Associated Cement Companies case the rate allowed by tribunals on working capital is between two to four per cent. In the present case the tribunal has allowed three per cent. We do not think that there is any reason for us to interfere with the discretion of the tribunal in this matter though it is true that the recent trend of tribunals is to allow four per cent return on working capital.4. Turning now to the amount of working capital on which return should have been allowed, the appellant originally claimed that the amount used as working capital was Rs. 43.85 lacs. Latter however, a revised statement was put in and the amount was reduced to Rs. 36.70 lacs. The tribunal has however calculated the working capital used in the business as Rs. 7.85 lacs. The main reason why the tribunal arrived at this figure was that it held that the amount in the depreciation reserve could not be treated as reserve used as working capital on which a return was admissible. It therefore excluded out of consideration the entire amount in the depreciation reserve which was Rs. 36.24 lacs in considering what sum had been used as working capital. This view of the tribunal is clearly incorrect in view of this Courts decision in The Tata Oil Mills Co. Ltd. v. Itsthe tribunal in this case was not right in excluding the amount in the depreciation reserve altogether from consideration on the ground that it was a reserve foraccording to this statement, Rs. 36.70 lacs were used as working capital and the appellant claims return on that amount. It tmay be accepted that the sum of Rs. 36.70 lacs was used as working capital by the appellant during the year; but we are of opinion that the appellant is not entitled to a return on this entire amount, for the reason that this amount includes a sum of Rs. 14.56 lacs which was either borrowed by the appellant or was in deposit with it, on which the appellant was paying interest. The appellant therefore cannot claim further interest on this borrowed amount which has been used as working capital, for it has already paid interest on it to those from whom it was borrowed and this has been taken into account as expense in arriving at the gross profits. As was pointed out in The Tata Oil Mills Co.s case, the basis for giving a return on reserves used as working capital is that otherwise money would have to be borrowed for that purpose. Where borrowed money is used as working capital there is no question of giving any further return on this borrowed money. The return on reserves used at working capital can only be given on moneys belonging to the company which are used as working capital. Therefore, though Rs. 36.70 lacs might have actually been used as working capital in the relevant year, Rs. 14.56 lacs were borrowed money on which interest was paid. There is no question therefore of any further return on this amount as prior charge. Thus the amount on which the appellant is entitled to the return on working capital as a prior charge is Rs. 36.70 lacs minus Rs. 14.56 lacs, i.e. Rs. 22.14 lacs. The return on this amount at three per cent comes to .66 lacs and the calculations made by the tribunal would have to be corrected accordingly.7. Turning now to the claim for rehabilitation it is enough to say that no evidence as to rehabilitation was led in this case. It may be that this was because the appellant expected that the claim it was making on other items of prior charges would be sufficient to resist the claim for further bonus besides one months bonus alreadydispute relates to the year 1954-55 and we think it is too late now to make a remand in order to determine this question. We should however like to make it clear that the fact that no evidence as to rehabilitation was led in this year will not preclude the appellant from leading evidence as to the amount which should be allowed to it as prior charge on account of rehabilitation, in any subsequent dispute as to bonus relating to subsequent years. In the present case, however, it is not possible to allow any amount for rehabilitation as a prior charge.The available surplus therefore for this year must be held to be Rs. 1.90 lacs roughly. One months wages come to roughly Rs. .64 lacs. It seems to us therefore that it will be fair to allow 1 1/2 months wages as bonus for this year, which would come to about Rs. .96 lacs. The appellant will get some rebate on that from the income-tax department. We are therefore of opinion that the workmen are entitled to an additional bonus for half a month for this year.
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STATE OF HARYANA AND ORS. ETC Vs. BANT LAL ETC | KURIAN, J.1. The parties are before this Court disputing the land value fixed in respect of the acquired land. The State is aggrieved by the value fixed; whereas the claimants want higher compensation.2. When the matter came up to this Court, on 02.08.2018, after extensive hearing, the following order was passed :-?We have heard learned counsel on both sides and also gone through the records.We have given two options to the claimants.First option is, as far as land acquired for water works is concerned, we will fix the value of the land at Rs.30,00,000/- (Rupees Thirty Lakhs) per acre, having regard to the fact that in certain sale deeds of other persons for the similar land the same value is fixed and as far as the land acquired in Sewage Treatment Plant (STP) is concerned, the value will be slightly enhanced and may be fixed at Rs.40,00,000/- (Rupees Forty Lakhs) per acre.Second option is that the Government will return the unutilised land to the claimants, and remand the matters to the High Court for appropriate fixation of land value in respect of the actual land utilised by the Government, with liberty to both the sides to lead additional evidence. Post the matter on Tuesday, the 7th August, 2018 in ?Miscellaneous Hearing? at the top of the Board as part-heard.? 3. Having regard to the facts and circumstances of the case, it is submitted that the second option will be the best option in the fitness of things. | 1[ds]3. Having regard to the facts and circumstances of the case, it is submitted that the second option will be the best option in the fitness of things. | 1 | 279 | 35 | ### Instruction:
Speculate on the likely judgment (yes (1) or no (0) to the appeal) and then delve into the case proceeding to elucidate your prediction, focusing on critical sentences.
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KURIAN, J.1. The parties are before this Court disputing the land value fixed in respect of the acquired land. The State is aggrieved by the value fixed; whereas the claimants want higher compensation.2. When the matter came up to this Court, on 02.08.2018, after extensive hearing, the following order was passed :-?We have heard learned counsel on both sides and also gone through the records.We have given two options to the claimants.First option is, as far as land acquired for water works is concerned, we will fix the value of the land at Rs.30,00,000/- (Rupees Thirty Lakhs) per acre, having regard to the fact that in certain sale deeds of other persons for the similar land the same value is fixed and as far as the land acquired in Sewage Treatment Plant (STP) is concerned, the value will be slightly enhanced and may be fixed at Rs.40,00,000/- (Rupees Forty Lakhs) per acre.Second option is that the Government will return the unutilised land to the claimants, and remand the matters to the High Court for appropriate fixation of land value in respect of the actual land utilised by the Government, with liberty to both the sides to lead additional evidence. Post the matter on Tuesday, the 7th August, 2018 in ?Miscellaneous Hearing? at the top of the Board as part-heard.? 3. Having regard to the facts and circumstances of the case, it is submitted that the second option will be the best option in the fitness of things.
### Response:
1
### Explanation:
3. Having regard to the facts and circumstances of the case, it is submitted that the second option will be the best option in the fitness of things.
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M/S. Zandu Pharmaceutical Works Ltd. And Others Vs. S Md. Sharaful Haque And Others | decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H.S. Chowdhary (1992 (4) SCC 305 ), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1 ). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See: Dhanalakshmi vs. R. Prasanna Kumar (1990 Supp SCC 686), State of Bihar v. P.P. Sharma (AIR 1996 SC 309 ), Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995 (6) SCC 194 ), State of Kerala v. O.C. Kuttan (AIR 1999 SC 1044 ), State of U.P. v. O.P. Sharma (1996 (7) SCC 705 ), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397 ), Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC 2983 ) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259. 10. The above position was recently highlighted in State of Karnataka vs. M. Devendrappa and Another (2002 (3) SCC 89 ). 11. The factual position as highlighted above clearly goes to show that the complainant had not come to Court with clean hands. There was no explanation whatsoever for the inaction between 1995 and 2001. The High Court seems to have been swayed by the fact that the appellants have rejected claim of the complainant on 5.12.2001. If failed to notice that the communication dated 5.12.2001 was in response to the letter of the complainant dated 24.11.2001. 12. Section 468 of the Code deals with delay in taking cognizance after lapse of the period of limitation. If reads as follows: 468. BAR TO TAKING COGNIZANCE AFTER LAPSE OF THE PERIOD OF LIMITATION: (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be - (a) six months, if the offence is punishable with fine only: (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. 13. The learned Magistrate has issued process in respect of offence under Section 418 IPC. The punishment provided for said offence is imprisonment for three years. The period of limitation in terms of Section 468 (2) (c) is 3 years. That being so, the Court could not have taken cognizance of the offence. Section 473 of the Code provides for extension of period in certain cases. This power can be exercised only when the Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. Order of learned Magistrate does not even refer to either Section 468 or Section 473 of the Code. High Court clearly erred in holding that the complaint was not hit by limitation. As noted above, there was not even a reference that the letter dated 5.12.2001 was in response to the letter of complainant dated 24.11.2001. The factual position clearly show that the complaint was nothing but a sheer abuse of the process of law and this is a case where the power under Section 482 should have been exercised. The High Court unfortunately did not take note of the guiding principles as laid down in Bhajan Singhs case (supra), thereby rendering the judgment indefensible. | 1[ds]13. The learned Magistrate has issued process in respect of offence under Section 418 IPC. The punishment provided for said offence is imprisonment for three years. The period of limitation in terms of Section 468 (2) (c) is 3 years. That being so, the Court could not have taken cognizance of the offence. Section 473 of the Code provides for extension of period in certain cases. This power can be exercised only when the Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. Order of learned Magistrate does not even refer to either Section 468 or Section 473 of the Code. High Court clearly erred in holding that the complaint was not hit by limitation. As noted above, there was not even a reference that the letter dated 5.12.2001 was in response to the letter of complainant dated 24.11.2001. The factual position clearly show that the complaint was nothing but a sheer abuse of the process of law and this is a case where the power under Section 482 should have been exercised. The High Court unfortunately did not take note of the guiding principles as laid down in Bhajan Singhs case (supra), thereby rendering the judgment indefensible. | 1 | 3,671 | 247 | ### 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:
decision in a case where the entire facts are incomplete and hazy, more so when the evidence has not been collected and produced before the Court and the issues involved, whether factual or legal, are of magnitude and cannot be seen in their true perspective without sufficient material. Of course, no hard-and-fast rule can be laid down in regard to cases in which the High Court will exercise its extraordinary jurisdiction of quashing the proceeding at any stage. (See: Janata Dal v. H.S. Chowdhary (1992 (4) SCC 305 ), and Raghubir Saran (Dr.) v. State of Bihar (AIR 1964 SC 1 ). It would not be proper for the High Court to analyse the case of the complainant in the light of all probabilities in order to determine whether a conviction would be sustainable and on such premises arrive at a conclusion that the proceedings are to be quashed. It would be erroneous to assess the material before it and conclude that the complaint cannot be proceeded with. In a proceeding instituted on complaint, exercise of the inherent powers to quash the proceedings is called for only in a case where the complaint does not disclose any offence or is frivolous, vexatious or oppressive. If the allegations set out in the complaint do not constitute the offence of which cognizance has been taken by the Magistrate, it is open to the High Court to quash the same in exercise of the inherent powers under Section 482 of the Code. It is not, however, necessary that there should be meticulous analysis of the case before the trial to find out whether the case would end in conviction or acquittal. The complaint has to be read as a whole. If it appears that on consideration of the allegations in the light of the statement made on oath of the complainant that the ingredients of the offence or offences are disclosed and there is no material to show that the complaint is mala fide, frivolous or vexatious, in that event there would be no justification for interference by the High Court. When an information is lodged at the police station and an offence is registered, then the mala fides of the informant would be of secondary importance. It is the material collected during the investigation and evidence led in court which decides the fate of the accused person. The allegations of mala fides against the informant are of no consequence and cannot by themselves be the basis for quashing the proceedings. (See: Dhanalakshmi vs. R. Prasanna Kumar (1990 Supp SCC 686), State of Bihar v. P.P. Sharma (AIR 1996 SC 309 ), Rupan Deol Bajaj v. Kanwar Pal Singh Gill (1995 (6) SCC 194 ), State of Kerala v. O.C. Kuttan (AIR 1999 SC 1044 ), State of U.P. v. O.P. Sharma (1996 (7) SCC 705 ), Rashmi Kumar v. Mahesh Kumar Bhada (1997 (2) SCC 397 ), Satvinder Kaur v. State (Govt. of NCT of Delhi) (AIR 1996 SC 2983 ) and Rajesh Bajaj v. State NCT of Delhi (1999 (3) SCC 259. 10. The above position was recently highlighted in State of Karnataka vs. M. Devendrappa and Another (2002 (3) SCC 89 ). 11. The factual position as highlighted above clearly goes to show that the complainant had not come to Court with clean hands. There was no explanation whatsoever for the inaction between 1995 and 2001. The High Court seems to have been swayed by the fact that the appellants have rejected claim of the complainant on 5.12.2001. If failed to notice that the communication dated 5.12.2001 was in response to the letter of the complainant dated 24.11.2001. 12. Section 468 of the Code deals with delay in taking cognizance after lapse of the period of limitation. If reads as follows: 468. BAR TO TAKING COGNIZANCE AFTER LAPSE OF THE PERIOD OF LIMITATION: (1) Except as otherwise provided elsewhere in this Code, no Court shall take cognizance of an offence of the category specified in sub-section (2), after the expiry of the period of limitation. (2) The period of limitation shall be - (a) six months, if the offence is punishable with fine only: (b) one year, if the offence is punishable with imprisonment for a term not exceeding one year; (c) three years, if the offence is punishable with imprisonment for a term exceeding one year but not exceeding three years. (3) For the purposes of this section, the period of limitation, in relation to offences which may be tried together, shall be determined with reference to the offence which is punishable with the more severe punishment or, as the case may be, the most severe punishment. 13. The learned Magistrate has issued process in respect of offence under Section 418 IPC. The punishment provided for said offence is imprisonment for three years. The period of limitation in terms of Section 468 (2) (c) is 3 years. That being so, the Court could not have taken cognizance of the offence. Section 473 of the Code provides for extension of period in certain cases. This power can be exercised only when the Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. Order of learned Magistrate does not even refer to either Section 468 or Section 473 of the Code. High Court clearly erred in holding that the complaint was not hit by limitation. As noted above, there was not even a reference that the letter dated 5.12.2001 was in response to the letter of complainant dated 24.11.2001. The factual position clearly show that the complaint was nothing but a sheer abuse of the process of law and this is a case where the power under Section 482 should have been exercised. The High Court unfortunately did not take note of the guiding principles as laid down in Bhajan Singhs case (supra), thereby rendering the judgment indefensible.
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13. The learned Magistrate has issued process in respect of offence under Section 418 IPC. The punishment provided for said offence is imprisonment for three years. The period of limitation in terms of Section 468 (2) (c) is 3 years. That being so, the Court could not have taken cognizance of the offence. Section 473 of the Code provides for extension of period in certain cases. This power can be exercised only when the Court is satisfied on the facts and in the circumstances of the case that the delay has been properly explained or that it is necessary to do so in the interest of justice. Order of learned Magistrate does not even refer to either Section 468 or Section 473 of the Code. High Court clearly erred in holding that the complaint was not hit by limitation. As noted above, there was not even a reference that the letter dated 5.12.2001 was in response to the letter of complainant dated 24.11.2001. The factual position clearly show that the complaint was nothing but a sheer abuse of the process of law and this is a case where the power under Section 482 should have been exercised. The High Court unfortunately did not take note of the guiding principles as laid down in Bhajan Singhs case (supra), thereby rendering the judgment indefensible.
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Pratap Chandra Sen Vs. Commissioner of Labour, Bihar Patna & Another | permanent under the rules, that the tenure was not affected by this having been transferred to a mine in Orissa and that since the disciplinary control against him was in fact exercised from Jamshedpur in Bihar, the matter relating to the validity of the exercise of such control is one that is entirely within the purview of the State Government and the State Labour Commissioner of Bihar. It was because of this contention and because further facts were required in order to make sure about the factual foundation which raises the question, that we permitted the appellant to file fresh affidavit and gave an opportunity to the second respondent to file an affidavit in answer thereto.7. On the material now before us the facts appear to be as follows. Admittedly - and as previously stated the appellant was recruited as a Personnel Officer in the Steel Melting Shop (Factory) No. 2 of the Tata Iron and Steel Co. at Jamshedpur and continued as such till 1950. In 1950 his assignment was transferred to certain mines of the Company at Jamshedpur and since 1953 that assignment was again transferred to Garumahishani in Orissa. According to the appellant his appointment as a Personnel Officer was really an appointment as a Welfare Officer right front the start and he continued as such notwithstanding that his assignment was transferred to mines since 1950. The second respondent contends that while Welfare Officers are part of the Personnel Department and therefore every Welfare Officer is also a Personnel Officer, all Personel Officer and not Welfare Officers and that the appellant was only a Personnel Officer and not a Welfare Officer. But whether this is so or not in general, there is, it is said for the appellant, considerable material relating to this appellant by way of correspondence between the Company and the Labour Commissioner about him, which we have been taken through and on the basis of which it is contended that the appellant was throughout understood to be a Welfare Officer presumably because he was doing the duties of a Welfare Officer or continued to be in that cadre. In view of what follows, we do not feel called upon to decide about the correctness or otherwise of that contention. The correspondence that has been brought to our notice consists inter alia of a circular letter from the Labour Commissioner, Bihar, Patna, dated September 19, 1952 and a reply thereto of the General Manager of the Company dated December 2, 1952. Now, it is to be noticed that by these dates the Bihar Factories Welfare Officers Rules, 1952, though promulgated did not actually come into force. As already stated they came into force on March 1, 1953. Besides, in the very letter of the General Manager to the Commissioner of Labour dated December 2, 1952, it is mentioned that the Company have applied to the Government of Bihar for the grant of exemption from the provisions of S. 49 of the Factories Act. It would appear that this application for exemption itself was pending till October, 1953. In addition, there are two facts in the way of the appellant.Firstly, there is no. specific order of the Company subsequent to the coming into force of the Factories Act or the Rules thereunder appointing the appellant as a Welfare Officer thereunder. The mere fact, brought to our notice, that the Labour Commissioner exempted him from the requisite qualifications is not enough and does not by itself show that the management took advantage of it and appointed or recognised him as such.Secondly, even though the appellant was originally appointed as a Personnel Officer (even assuming this for the sake of argument to be an appointment of a Welfare Officer as then understood) there were, at the time, no. service conditions applicable to his appointment which may be said to have continued in his favour and which would have entitled him to permanency of tenure or protection against arbitrary discharge. These facts have been frankly admitted before us.The further difficulty in the way of the appellant is that by the date when these Rules came into operation he was no. longer attached to a factory but was attached to a mine. In the circumstances, it is difficult to accept the contention of learned counsel for the appellant that merely because he was appointed as a Personnel Officer in 1947 (which, for the sake of argument may be assumed to have been an appointement as a Welfare Officer as then understood) he must be taken to have been continued as a Welfare Officer and as appointed under the Act and the Rules and that such continuance entitles him to protection against arbitrary discharge under the Rules.We are, therefore unable to interfere with the order of the Labour Commissioner in question. In the view we have taken of the facts as they appear on the record before us, it is unnecessary to decide the question whether the Labour Commissioner was right in his assumption that since the Rules are Bihar Rules he lacked jurisdiction to give relief in respect of the alleged arbitrary disciplinary action of the employer against him which was in fact exercised from Jamshedpur in Bihar as against a person working in Orissa.8. The appeal is accordingly dismissed. As regards the costs in this case, so far as the Government first respondent is concerned, we have not decided the point of law which was raised with reference to the Labour Commissioners Order. The Government was interested only in that question. As regards the second respondent, he was allowed, by an order of the Chamber Judge, to continue to be a party on the basis that his continuance would be at his own risk as to costs. At the last hearing before us this was brought to our notice and we passed an order that notwithstanding that order the question of costs subsequent to the previous hearing would be considered by us. We have now given our consideration thereto. | 0[ds]Firstly, there is no. specific order of the Company subsequent to the coming into force of the Factories Act or the Rules thereunder appointing the appellant as a Welfare Officer thereunder. The mere fact, brought to our notice, that the Labour Commissioner exempted him from the requisite qualifications is not enough and does not by itself show that the management took advantage of it and appointed or recognised him as such.Secondly, even though the appellant was originally appointed as a Personnel Officer (even assuming this for the sake of argument to be an appointment of a Welfare Officer as then understood) there were, at the time, no. service conditions applicable to his appointment which may be said to have continued in his favour and which would have entitled him to permanency of tenure or protection against arbitrary discharge. These facts have been frankly admitted before us.The further difficulty in the way of the appellant is that by the date when these Rules came into operation he was no. longer attached to a factory but was attached to a mine. In the circumstances, it is difficult to accept the contention of learned counsel for the appellant that merely because he was appointed as a Personnel Officer in 1947 (which, for the sake of argument may be assumed to have been an appointement as a Welfare Officer as then understood) he must be taken to have been continued as a Welfare Officer and as appointed under the Act and the Rules and that such continuance entitles him to protection against arbitrary discharge under the Rules.We are, therefore unable to interfere with the order of the Labour Commissioner in question. In the view we have taken of the facts as they appear on the record before us, it is unnecessary to decide the question whether the Labour Commissioner was right in his assumption that since the Rules are Bihar Rules he lacked jurisdiction to give relief in respect of the alleged arbitrary disciplinary action of the employer against him which was in fact exercised from Jamshedpur in Bihar as against a person working in Orissa.8. The appeal is accordingly dismissed. As regards the costs in this case, so far as the Government first respondent is concerned, we have not decided the point of law which was raised with reference to the Labour Commissioners Order. The Government was interested only in that question. As regards the second respondent, he was allowed, by an order of the Chamber Judge, to continue to be a party on the basis that his continuance would be at his own risk as to costs. At the last hearing before us this was brought to our notice and we passed an order that notwithstanding that order the question of costs subsequent to the previous hearing would be considered by us. We have now given our consideration thereto. | 0 | 2,785 | 514 | ### Instruction:
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permanent under the rules, that the tenure was not affected by this having been transferred to a mine in Orissa and that since the disciplinary control against him was in fact exercised from Jamshedpur in Bihar, the matter relating to the validity of the exercise of such control is one that is entirely within the purview of the State Government and the State Labour Commissioner of Bihar. It was because of this contention and because further facts were required in order to make sure about the factual foundation which raises the question, that we permitted the appellant to file fresh affidavit and gave an opportunity to the second respondent to file an affidavit in answer thereto.7. On the material now before us the facts appear to be as follows. Admittedly - and as previously stated the appellant was recruited as a Personnel Officer in the Steel Melting Shop (Factory) No. 2 of the Tata Iron and Steel Co. at Jamshedpur and continued as such till 1950. In 1950 his assignment was transferred to certain mines of the Company at Jamshedpur and since 1953 that assignment was again transferred to Garumahishani in Orissa. According to the appellant his appointment as a Personnel Officer was really an appointment as a Welfare Officer right front the start and he continued as such notwithstanding that his assignment was transferred to mines since 1950. The second respondent contends that while Welfare Officers are part of the Personnel Department and therefore every Welfare Officer is also a Personnel Officer, all Personel Officer and not Welfare Officers and that the appellant was only a Personnel Officer and not a Welfare Officer. But whether this is so or not in general, there is, it is said for the appellant, considerable material relating to this appellant by way of correspondence between the Company and the Labour Commissioner about him, which we have been taken through and on the basis of which it is contended that the appellant was throughout understood to be a Welfare Officer presumably because he was doing the duties of a Welfare Officer or continued to be in that cadre. In view of what follows, we do not feel called upon to decide about the correctness or otherwise of that contention. The correspondence that has been brought to our notice consists inter alia of a circular letter from the Labour Commissioner, Bihar, Patna, dated September 19, 1952 and a reply thereto of the General Manager of the Company dated December 2, 1952. Now, it is to be noticed that by these dates the Bihar Factories Welfare Officers Rules, 1952, though promulgated did not actually come into force. As already stated they came into force on March 1, 1953. Besides, in the very letter of the General Manager to the Commissioner of Labour dated December 2, 1952, it is mentioned that the Company have applied to the Government of Bihar for the grant of exemption from the provisions of S. 49 of the Factories Act. It would appear that this application for exemption itself was pending till October, 1953. In addition, there are two facts in the way of the appellant.Firstly, there is no. specific order of the Company subsequent to the coming into force of the Factories Act or the Rules thereunder appointing the appellant as a Welfare Officer thereunder. The mere fact, brought to our notice, that the Labour Commissioner exempted him from the requisite qualifications is not enough and does not by itself show that the management took advantage of it and appointed or recognised him as such.Secondly, even though the appellant was originally appointed as a Personnel Officer (even assuming this for the sake of argument to be an appointment of a Welfare Officer as then understood) there were, at the time, no. service conditions applicable to his appointment which may be said to have continued in his favour and which would have entitled him to permanency of tenure or protection against arbitrary discharge. These facts have been frankly admitted before us.The further difficulty in the way of the appellant is that by the date when these Rules came into operation he was no. longer attached to a factory but was attached to a mine. In the circumstances, it is difficult to accept the contention of learned counsel for the appellant that merely because he was appointed as a Personnel Officer in 1947 (which, for the sake of argument may be assumed to have been an appointement as a Welfare Officer as then understood) he must be taken to have been continued as a Welfare Officer and as appointed under the Act and the Rules and that such continuance entitles him to protection against arbitrary discharge under the Rules.We are, therefore unable to interfere with the order of the Labour Commissioner in question. In the view we have taken of the facts as they appear on the record before us, it is unnecessary to decide the question whether the Labour Commissioner was right in his assumption that since the Rules are Bihar Rules he lacked jurisdiction to give relief in respect of the alleged arbitrary disciplinary action of the employer against him which was in fact exercised from Jamshedpur in Bihar as against a person working in Orissa.8. The appeal is accordingly dismissed. As regards the costs in this case, so far as the Government first respondent is concerned, we have not decided the point of law which was raised with reference to the Labour Commissioners Order. The Government was interested only in that question. As regards the second respondent, he was allowed, by an order of the Chamber Judge, to continue to be a party on the basis that his continuance would be at his own risk as to costs. At the last hearing before us this was brought to our notice and we passed an order that notwithstanding that order the question of costs subsequent to the previous hearing would be considered by us. We have now given our consideration thereto.
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### Explanation:
Firstly, there is no. specific order of the Company subsequent to the coming into force of the Factories Act or the Rules thereunder appointing the appellant as a Welfare Officer thereunder. The mere fact, brought to our notice, that the Labour Commissioner exempted him from the requisite qualifications is not enough and does not by itself show that the management took advantage of it and appointed or recognised him as such.Secondly, even though the appellant was originally appointed as a Personnel Officer (even assuming this for the sake of argument to be an appointment of a Welfare Officer as then understood) there were, at the time, no. service conditions applicable to his appointment which may be said to have continued in his favour and which would have entitled him to permanency of tenure or protection against arbitrary discharge. These facts have been frankly admitted before us.The further difficulty in the way of the appellant is that by the date when these Rules came into operation he was no. longer attached to a factory but was attached to a mine. In the circumstances, it is difficult to accept the contention of learned counsel for the appellant that merely because he was appointed as a Personnel Officer in 1947 (which, for the sake of argument may be assumed to have been an appointement as a Welfare Officer as then understood) he must be taken to have been continued as a Welfare Officer and as appointed under the Act and the Rules and that such continuance entitles him to protection against arbitrary discharge under the Rules.We are, therefore unable to interfere with the order of the Labour Commissioner in question. In the view we have taken of the facts as they appear on the record before us, it is unnecessary to decide the question whether the Labour Commissioner was right in his assumption that since the Rules are Bihar Rules he lacked jurisdiction to give relief in respect of the alleged arbitrary disciplinary action of the employer against him which was in fact exercised from Jamshedpur in Bihar as against a person working in Orissa.8. The appeal is accordingly dismissed. As regards the costs in this case, so far as the Government first respondent is concerned, we have not decided the point of law which was raised with reference to the Labour Commissioners Order. The Government was interested only in that question. As regards the second respondent, he was allowed, by an order of the Chamber Judge, to continue to be a party on the basis that his continuance would be at his own risk as to costs. At the last hearing before us this was brought to our notice and we passed an order that notwithstanding that order the question of costs subsequent to the previous hearing would be considered by us. We have now given our consideration thereto.
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D.H. Maniar & Ors Vs. Waman Laxman Kudav | to the petitioner does not automatically put an end to the licence which the petitioner had to occupy the premises."There are two infirmities in the said observation. Firstly, according to the appellants case the licence stood revoked and withdrawn and then they filed the application under section 41 of the S.C.C. Act. Secondly, the filing of the application itself may in certain circumstances have the effect of putting an end to the licence if it was subsisting on the date of its filing. But in any event, one thing is certain, that cannot have the effect of reviving the licence as opined by the learned Judge in the subsequent part of his judgment.In the tenth paragraph of his judgment the learned Judge says:"The respondents have not relied on any notice served on the petitioner to show that they would treat the petitioner as a trespasser from March 31, 1966. The respondents did not even describe the petitioner as a trespasser in proceedings. It must be therefore presumed that the respondents voluntarily or involuntarily permitted the petitioner to occupy the premises till they filed their application under section 41 of the Presidency Small Cause Courts Act."In the next paragraph the learned Judge quotes the words: "position not better than that of a trespasser" from the appellants letter written so the respondent. The contradiction in the judgment is apparent. It is difficult to understand the significance of the observation "that the respondents voluntarily or involuntarily permitted the petitioner to occupy the premises".Voluntary permission may amount to a fresh licence. The use of the expression involuntarily permitted is a contradiction in terms.11. We are distressed to find the learned Judge repeatedly expressing a view in his judgment that the conduct on the part of the appellants in allowing the respondent to continue in the occupation of the premises until the filing of the application under section 41 of the S.C.C. Act on July 10, 1967 amounted to a grant of fresh licence. It is not necessary to extract all the strange passages from the judgment of the High Court. But we shah do a few more. In the fifteenth paragraph while referring to the expression "deemed to be revoked" occurring in section 62(c) of the Easements Act it is said that "it does not necessarily mean that it is in fact revoked." The mistake is so obvious in this observation that it does not require any elaboration. In the same fifteenth paragraph occurs a passage which we exercised in vain to understand.It runs thus:"The fact that the respondents did not take any steps till they filed the application under section 41 which also would not automatically make the petitioners occupation unlawful means that the respondents impliedly granted a licence to the petitioner to continue to occupy the premises."12. Later on the learned Judge has said in his judgment that by adopting the procedure of filing the application under section 41 of the S.C.C. Act, the appellants impliedly granted to the respondent "a right to continue to occupy the premises till he was evicted by an order under section 43." Such a novel proposition of law is beyond our comprehension. If the filing of the application under section 41 gives a fight to the occupant of the premises to continue to occupy it, then how can the Court pass an order of eviction under Section 43 in derogation or destruction of such a right ? The resulting position is too anomalous and illogical to merit any detailed discussion.In the eighteenth paragraph of the judgment the learned Judge persuaded himself to say:"The fact that the earlier agreement of licence expired on March 31, 1966, does not necessarily mean that there was no subsisting agreement on the date on which the application under section 41 was made or on February 1, 1973."13. It is difficult to understand what further act, conduct or writing of the appellants led to the undoing of the effect of the expiration of the earlier agreement of licence and bring about any subsisting agreement either on the date of the application under section 41 or on February 1, 1973. We admit that if any such agreement could be culled out, in writing or oral, expressly or impliedly, by the action or the conduct of the appellants the Court would have been happy to cull out such agreement and give protection to the licensee in consonance with the spirit of the Amending Act viz. Maharashtra Act 17 of 1973. But the Court cannot and should not cast the law to the winds or twist or stretch it to a breaking point amounting to almost an absurdity. Our observation is amply demonstrated by the following passage in the judgment of the High Court."Relying on the amendment of the Bombay Rent Act the respondents no doubt had withdrawn their permission under the agreements but by filing the proceedings under section 41 they permitted the petitioner to continue as the licensee as stated above; and this itself is a different kind of agreement of licence as defined under section 52 of the Easement Act."14. The learned Judge also seems to be making a difference between the filing of a suit against a licensee whose licence has been terminated treating him as a trespasser and an application under section 41 of the S.C.C. Act. For the purpose of the point at issue the distinction is more illusory than real. Two remedies, previously, were available to the licensor. He could avail the one or the other. The scope of the trial, disposal and further remedies in the two proceedings were different. But it is wholly wrong to say that if a licensor filed an application under section 41 of the S.C.C. Act instead of filing a regular civil suit by implication treated the occupant of the premises against whom the S.C.C. application was filed as a subsisting licensee.In our opinion the judgment of the High Court is wholly wrong and suffers from serious infirmities of law and facts. | 1[ds]It is difficult to understand what further act, conduct or writing of the appellants led to the undoing of the effect of the expiration of the earlier agreement of licence and bring about any subsisting agreement either on the date of the application under section 41 or on February 1, 1973. We admit that if any such agreement could be culled out, in writing or oral, expressly or impliedly, by the action or the conduct of the appellants the Court would have been happy to cull out such agreement and give protection to the licensee in consonance with the spirit of the Amending Act viz. Maharashtra Act 17 of 1973. But the Court cannot and should not cast the law to the winds or twist or stretch it to a breaking point amounting to almost an absurdity. Our observation is amply demonstrated by the following passage in the judgment of the Highlearned Judge also seems to be making a difference between the filing of a suit against a licensee whose licence has been terminated treating him as a trespasser and an application under section 41 of the S.C.C. Act. For the purpose of the point at issue the distinction is more illusory than real. Two remedies, previously, were available to the licensor. He could avail the one or the other. The scope of the trial, disposal and further remedies in the two proceedings were different. But it is wholly wrong to say that if a licensor filed an application under section 41 of the S.C.C. Act instead of filing a regular civil suit by implication treated the occupant of the premises against whom the S.C.C. application was filed as a subsisting licensee.In our opinion the judgment of the High Court is wholly wrong and suffers from serious infirmities of law and facts. | 1 | 3,492 | 328 | ### Instruction:
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to the petitioner does not automatically put an end to the licence which the petitioner had to occupy the premises."There are two infirmities in the said observation. Firstly, according to the appellants case the licence stood revoked and withdrawn and then they filed the application under section 41 of the S.C.C. Act. Secondly, the filing of the application itself may in certain circumstances have the effect of putting an end to the licence if it was subsisting on the date of its filing. But in any event, one thing is certain, that cannot have the effect of reviving the licence as opined by the learned Judge in the subsequent part of his judgment.In the tenth paragraph of his judgment the learned Judge says:"The respondents have not relied on any notice served on the petitioner to show that they would treat the petitioner as a trespasser from March 31, 1966. The respondents did not even describe the petitioner as a trespasser in proceedings. It must be therefore presumed that the respondents voluntarily or involuntarily permitted the petitioner to occupy the premises till they filed their application under section 41 of the Presidency Small Cause Courts Act."In the next paragraph the learned Judge quotes the words: "position not better than that of a trespasser" from the appellants letter written so the respondent. The contradiction in the judgment is apparent. It is difficult to understand the significance of the observation "that the respondents voluntarily or involuntarily permitted the petitioner to occupy the premises".Voluntary permission may amount to a fresh licence. The use of the expression involuntarily permitted is a contradiction in terms.11. We are distressed to find the learned Judge repeatedly expressing a view in his judgment that the conduct on the part of the appellants in allowing the respondent to continue in the occupation of the premises until the filing of the application under section 41 of the S.C.C. Act on July 10, 1967 amounted to a grant of fresh licence. It is not necessary to extract all the strange passages from the judgment of the High Court. But we shah do a few more. In the fifteenth paragraph while referring to the expression "deemed to be revoked" occurring in section 62(c) of the Easements Act it is said that "it does not necessarily mean that it is in fact revoked." The mistake is so obvious in this observation that it does not require any elaboration. In the same fifteenth paragraph occurs a passage which we exercised in vain to understand.It runs thus:"The fact that the respondents did not take any steps till they filed the application under section 41 which also would not automatically make the petitioners occupation unlawful means that the respondents impliedly granted a licence to the petitioner to continue to occupy the premises."12. Later on the learned Judge has said in his judgment that by adopting the procedure of filing the application under section 41 of the S.C.C. Act, the appellants impliedly granted to the respondent "a right to continue to occupy the premises till he was evicted by an order under section 43." Such a novel proposition of law is beyond our comprehension. If the filing of the application under section 41 gives a fight to the occupant of the premises to continue to occupy it, then how can the Court pass an order of eviction under Section 43 in derogation or destruction of such a right ? The resulting position is too anomalous and illogical to merit any detailed discussion.In the eighteenth paragraph of the judgment the learned Judge persuaded himself to say:"The fact that the earlier agreement of licence expired on March 31, 1966, does not necessarily mean that there was no subsisting agreement on the date on which the application under section 41 was made or on February 1, 1973."13. It is difficult to understand what further act, conduct or writing of the appellants led to the undoing of the effect of the expiration of the earlier agreement of licence and bring about any subsisting agreement either on the date of the application under section 41 or on February 1, 1973. We admit that if any such agreement could be culled out, in writing or oral, expressly or impliedly, by the action or the conduct of the appellants the Court would have been happy to cull out such agreement and give protection to the licensee in consonance with the spirit of the Amending Act viz. Maharashtra Act 17 of 1973. But the Court cannot and should not cast the law to the winds or twist or stretch it to a breaking point amounting to almost an absurdity. Our observation is amply demonstrated by the following passage in the judgment of the High Court."Relying on the amendment of the Bombay Rent Act the respondents no doubt had withdrawn their permission under the agreements but by filing the proceedings under section 41 they permitted the petitioner to continue as the licensee as stated above; and this itself is a different kind of agreement of licence as defined under section 52 of the Easement Act."14. The learned Judge also seems to be making a difference between the filing of a suit against a licensee whose licence has been terminated treating him as a trespasser and an application under section 41 of the S.C.C. Act. For the purpose of the point at issue the distinction is more illusory than real. Two remedies, previously, were available to the licensor. He could avail the one or the other. The scope of the trial, disposal and further remedies in the two proceedings were different. But it is wholly wrong to say that if a licensor filed an application under section 41 of the S.C.C. Act instead of filing a regular civil suit by implication treated the occupant of the premises against whom the S.C.C. application was filed as a subsisting licensee.In our opinion the judgment of the High Court is wholly wrong and suffers from serious infirmities of law and facts.
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### Explanation:
It is difficult to understand what further act, conduct or writing of the appellants led to the undoing of the effect of the expiration of the earlier agreement of licence and bring about any subsisting agreement either on the date of the application under section 41 or on February 1, 1973. We admit that if any such agreement could be culled out, in writing or oral, expressly or impliedly, by the action or the conduct of the appellants the Court would have been happy to cull out such agreement and give protection to the licensee in consonance with the spirit of the Amending Act viz. Maharashtra Act 17 of 1973. But the Court cannot and should not cast the law to the winds or twist or stretch it to a breaking point amounting to almost an absurdity. Our observation is amply demonstrated by the following passage in the judgment of the Highlearned Judge also seems to be making a difference between the filing of a suit against a licensee whose licence has been terminated treating him as a trespasser and an application under section 41 of the S.C.C. Act. For the purpose of the point at issue the distinction is more illusory than real. Two remedies, previously, were available to the licensor. He could avail the one or the other. The scope of the trial, disposal and further remedies in the two proceedings were different. But it is wholly wrong to say that if a licensor filed an application under section 41 of the S.C.C. Act instead of filing a regular civil suit by implication treated the occupant of the premises against whom the S.C.C. application was filed as a subsisting licensee.In our opinion the judgment of the High Court is wholly wrong and suffers from serious infirmities of law and facts.
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Niton Industries Vs. Union of India & Others | not be closed or affected by the closure or stoppage of another unit owned by the same employer in that case these two units would be independent and not interdependent and, therefore, there cannot be any functional integrality between these units. If, however, one unit is adversely affected or is closed down because of the closure of the other unit and it cannot survive unless the other unit also functions, in such a situation two units would be interdependent mutually. One would not survive unless the other continues to function".The Division Bench in the above mentioned case, found that this concept of integrality between the two units was totally absent. It therefore held that the shipping division of the company was altogether different and had no connection or relation with the activities of other units. The fact that merely because some employees were transferable or were transferred there being a unity of ownership and management, it did not find favour with the Division Bench, and the order of the Industrial Court and the Single Judge was upheld.19. Citing the above mentioned Judgments, Mr. Naidu argued that in the present case at hand, M/s. Niton Industries, Inventa Valves Industries (Bombay) Private Limited, M/s. Niton Industrial Corporation were three different legal entities, and that, there was no functional integrality between them, if one applied the criteria laid down by the Honble Supreme Court and the above mentioned Judgments of this Court. He submitted that keeping in mind the factual position about the separate existence of the Firms, it could not be said that one of the establishment is the department or branch of the other, as envisaged or defined by Section 2-A of the Act.20. We find force in the contentions of Mr. Naidu, learned counsel for the appellants.21. Mr. Master, learned counsel for the respondents on the other hand, strenuously tried to argue that all these establishments were one and the same and therefore, they were rightly clubbed together by the Regional Provident Fund Commissioner for the purpose of applicability of the provisions of the Act. To substantiate his argument, he relied heavily on the Judgment of the Supreme Court reported in 1957 I L.L.J. 448 J. G. Vakharia vs. Regional Provident Fund Commissioner, Bombay. This was a case under the Employees Provident Funds and Miscellaneous Provisions Act, 1952. In this case, a sick mill was run by a partnership consisting of father and son. On the death of his father, the son entered into partnership with his two major sons. Shortly before the advent of the Act, the factory was made to close its business. Subsequently, the various machineries were leased to the members of the family owning separate units. Under the terms of the lease, they were bound to work in priority for the parent lessor company. On a question as to whether the various units run by the members of the family should be considered as distinct and independent units or as a subterfuge to avoid the liability of contribution under the Act, it was held that the five units were not independent units and that they were clearly inter-dependent and in between them, they carried on same process which the original mill was carrying on and the process were carried on for the benefit of the original mill and for no one else. It was found in this case that the entire transaction was subterfuge to avoid the liability of contribution under the Act, and in fact the parent partnership Firm continued to carry on the business through the separate units artificially set up. It was under such circumstances that the Court came to the conclusion that it was a clear case of a subterfuge which could not be permitted to succeed so as to defeat the rights of the employees who should be benefited by the Act.22. This decision, in our opinion, however, has no application to the facts of the present case at hand, where there is nothing to show that the three establishments namely; M/ s. Niton Industries, M/s. Niton Industrial Corporation, and Inventa Valves Industries (Bombay) Private Limited were artificially set up as subterfuge to avoid the liability of contribution under the Act or when admittedly, there is not inter-dependency in management, control and finance. In such a situation, it cannot be said that there is functional integrality between these establishments.23. Mr. Master, learned counsel for the respondents also relied upon Rajasthan Prem Krishan Goods Transport Co. Vs. Regional Provident Fund Commissioner & Ors., reported in 1996 II L.L.J. 662, wherein it is held by the Honble Supreme Court that the authorities functioning under the Act can pierce the veil and read between the lines within the outwardliness of the two apparent. In this case, Regional Provident Fund Commissioner treated Rajasthan Prem Krishan Goods Transport Company and Rajasthan Prem Krishan Transport Company as one and the same entity, holding the ostensible separate existence of these two particular concerns as artificial and nonexistent even though the two concerns were being treated as separate for the purposes of Income-tax Act. It was in this case that the doctrine of piercing the veil was set out for the application of the provisions of the Act. In our opinion, even this case does not come to the rescue of the respondents. The facts of the above mentioned case were totally different, the integrality between the Firms was obvious, leading to the legitimate inference of subterfuge. No such case is made out in the present case at hand. The factual position totally belies such a suggestion. In our view, therefore, the learned Single Judge committed error in holding that just because there was common ownership and just because all the companies were in the same line of manufacturing of valves, there was functional integrality between them. The observation about financial proximity between three establishments also is not correct, in as much as the loans taken can always be paid off and the shares can be transferred or sold. | 1[ds]22. This decision, in our opinion, however, has no application to the facts of the present case at hand, where there is nothing to show that the three establishments namely; M/ s. Niton Industries, M/s. Niton Industrial Corporation, and Inventa Valves Industries (Bombay) Private Limited were artificially set up as subterfuge to avoid the liability of contribution under the Act or when admittedly, there is notinterdependency in management, control andfinance. In such a situation, it cannot be said that there is functional integrality between thesethis case, Regional Provident Fund Commissioner treated Rajasthan Prem Krishan Goods Transport Company and Rajasthan Prem Krishan Transport Company as one and the same entity, holding the ostensible separate existence of these two particular concerns as artificial and nonexistent even though the two concerns were being treated as separate for the purposes ofAct. It was in this case that the doctrine of piercing the veil was set out for the application of the provisionsof the Act.In our opinion, even this case does not come to the rescue of the respondents. The facts of the above mentioned case were totally different, the integrality between the Firms was obvious, leading to the legitimate inference of subterfuge. No such case is made out in the present case at hand. The factual position totally belies such a suggestion. In our view, therefore, the learned Single Judge committed error in holding that just because there was common ownership and just because all the companies were in the same line of manufacturing of valves, there was functional integrality between them. The observation about financial proximity between three establishments also is not correct, in as much as the loans taken can always be paid off and the shares can be transferred or sold. | 1 | 4,974 | 326 | ### 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:
not be closed or affected by the closure or stoppage of another unit owned by the same employer in that case these two units would be independent and not interdependent and, therefore, there cannot be any functional integrality between these units. If, however, one unit is adversely affected or is closed down because of the closure of the other unit and it cannot survive unless the other unit also functions, in such a situation two units would be interdependent mutually. One would not survive unless the other continues to function".The Division Bench in the above mentioned case, found that this concept of integrality between the two units was totally absent. It therefore held that the shipping division of the company was altogether different and had no connection or relation with the activities of other units. The fact that merely because some employees were transferable or were transferred there being a unity of ownership and management, it did not find favour with the Division Bench, and the order of the Industrial Court and the Single Judge was upheld.19. Citing the above mentioned Judgments, Mr. Naidu argued that in the present case at hand, M/s. Niton Industries, Inventa Valves Industries (Bombay) Private Limited, M/s. Niton Industrial Corporation were three different legal entities, and that, there was no functional integrality between them, if one applied the criteria laid down by the Honble Supreme Court and the above mentioned Judgments of this Court. He submitted that keeping in mind the factual position about the separate existence of the Firms, it could not be said that one of the establishment is the department or branch of the other, as envisaged or defined by Section 2-A of the Act.20. We find force in the contentions of Mr. Naidu, learned counsel for the appellants.21. Mr. Master, learned counsel for the respondents on the other hand, strenuously tried to argue that all these establishments were one and the same and therefore, they were rightly clubbed together by the Regional Provident Fund Commissioner for the purpose of applicability of the provisions of the Act. To substantiate his argument, he relied heavily on the Judgment of the Supreme Court reported in 1957 I L.L.J. 448 J. G. Vakharia vs. Regional Provident Fund Commissioner, Bombay. This was a case under the Employees Provident Funds and Miscellaneous Provisions Act, 1952. In this case, a sick mill was run by a partnership consisting of father and son. On the death of his father, the son entered into partnership with his two major sons. Shortly before the advent of the Act, the factory was made to close its business. Subsequently, the various machineries were leased to the members of the family owning separate units. Under the terms of the lease, they were bound to work in priority for the parent lessor company. On a question as to whether the various units run by the members of the family should be considered as distinct and independent units or as a subterfuge to avoid the liability of contribution under the Act, it was held that the five units were not independent units and that they were clearly inter-dependent and in between them, they carried on same process which the original mill was carrying on and the process were carried on for the benefit of the original mill and for no one else. It was found in this case that the entire transaction was subterfuge to avoid the liability of contribution under the Act, and in fact the parent partnership Firm continued to carry on the business through the separate units artificially set up. It was under such circumstances that the Court came to the conclusion that it was a clear case of a subterfuge which could not be permitted to succeed so as to defeat the rights of the employees who should be benefited by the Act.22. This decision, in our opinion, however, has no application to the facts of the present case at hand, where there is nothing to show that the three establishments namely; M/ s. Niton Industries, M/s. Niton Industrial Corporation, and Inventa Valves Industries (Bombay) Private Limited were artificially set up as subterfuge to avoid the liability of contribution under the Act or when admittedly, there is not inter-dependency in management, control and finance. In such a situation, it cannot be said that there is functional integrality between these establishments.23. Mr. Master, learned counsel for the respondents also relied upon Rajasthan Prem Krishan Goods Transport Co. Vs. Regional Provident Fund Commissioner & Ors., reported in 1996 II L.L.J. 662, wherein it is held by the Honble Supreme Court that the authorities functioning under the Act can pierce the veil and read between the lines within the outwardliness of the two apparent. In this case, Regional Provident Fund Commissioner treated Rajasthan Prem Krishan Goods Transport Company and Rajasthan Prem Krishan Transport Company as one and the same entity, holding the ostensible separate existence of these two particular concerns as artificial and nonexistent even though the two concerns were being treated as separate for the purposes of Income-tax Act. It was in this case that the doctrine of piercing the veil was set out for the application of the provisions of the Act. In our opinion, even this case does not come to the rescue of the respondents. The facts of the above mentioned case were totally different, the integrality between the Firms was obvious, leading to the legitimate inference of subterfuge. No such case is made out in the present case at hand. The factual position totally belies such a suggestion. In our view, therefore, the learned Single Judge committed error in holding that just because there was common ownership and just because all the companies were in the same line of manufacturing of valves, there was functional integrality between them. The observation about financial proximity between three establishments also is not correct, in as much as the loans taken can always be paid off and the shares can be transferred or sold.
### Response:
1
### Explanation:
22. This decision, in our opinion, however, has no application to the facts of the present case at hand, where there is nothing to show that the three establishments namely; M/ s. Niton Industries, M/s. Niton Industrial Corporation, and Inventa Valves Industries (Bombay) Private Limited were artificially set up as subterfuge to avoid the liability of contribution under the Act or when admittedly, there is notinterdependency in management, control andfinance. In such a situation, it cannot be said that there is functional integrality between thesethis case, Regional Provident Fund Commissioner treated Rajasthan Prem Krishan Goods Transport Company and Rajasthan Prem Krishan Transport Company as one and the same entity, holding the ostensible separate existence of these two particular concerns as artificial and nonexistent even though the two concerns were being treated as separate for the purposes ofAct. It was in this case that the doctrine of piercing the veil was set out for the application of the provisionsof the Act.In our opinion, even this case does not come to the rescue of the respondents. The facts of the above mentioned case were totally different, the integrality between the Firms was obvious, leading to the legitimate inference of subterfuge. No such case is made out in the present case at hand. The factual position totally belies such a suggestion. In our view, therefore, the learned Single Judge committed error in holding that just because there was common ownership and just because all the companies were in the same line of manufacturing of valves, there was functional integrality between them. The observation about financial proximity between three establishments also is not correct, in as much as the loans taken can always be paid off and the shares can be transferred or sold.
|
THE DESIGNATED AUTHORITY & ORS Vs. M/S THE ANDHRA PETROCHEMICALS LIMITED | take effect from the date of its publication in the Official Gazette. (2) Notwithstanding anything contained in sub-rule (1) - (a) where a provisional duty has been levied and where the designated authority has recorded a final finding of injury or where the designated authority has recorded a final finding of threat of injury and a further finding that the effect of dumped imports in the absence of provisional duty would have led to injury, the antidumping duty may be levied from the date of imposition of provisional duty; (b) in the circumstances referred to in sub-section (3) of section 9A of the Act, the antidumping duty may be levied retrospectively from the date commencing ninety days prior to the imposition of such provisional duty: Provided that no duty shall be levied retrospectively on imports entered for home consumption before initiation of the investigation: Provided further that in the cases of violation of price undertaking referred to in sub-rule (6) of rule 15, no duty shall be levied retrospectively on the imports which have entered for home consumption before the violation of the terms of such undertaking. Provided also that notwithstanding anything contained in the foregoing proviso, in case of violation of such undertaking, the provisional duty shall be deemed to have been levied from the date of violation of the undertaking or such date as the Central Government may specify in each case. 29. Section 9A of the Customs Tariff Act and the procedure prescribed by the Rules of 1995, clearly disclose an intent that investigations should be completed within pre-determined time limits and the levy itself (which can be specific to foreign exporter or country - or combination of both-) cannot be more than five years - which may, after due review in accordance with prescribed procedure, before expiry of the said period, be extended by another period not more than five years. These timelines are crucial; the DA is duty bound to follow them. The analysis of the particular market behaviour by the allegedly offending foreign exporters, involves sifting of a great deal of evidence, such as manufacturing capacity, financial abilities, overall capacity of the country in the like field, prices, and the margin of acceptable delinquent behaviour, as well as domestic capacity, efficiency, etc, while determining if an injury exists, the margin of such injury and its likely duration. The judgment of this court in Union of India vs. Kumho Petrochemicals, (2017) 8 SCC 307. has noticed that as a signatory to GATT and the Marrakesh Agreement, the Anti-Dumping Rules (ADA) are to be assimilated into domestic laws. The provision of Article 5.10 of the Marrakesh Agreement is strict with respect to the timeline for taking up and conclusion of investigation. Article 10 empowers states to levy duties, with retrospective effect, only for a limited period (90 days subject to fulfilment of prescribed conditions) prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:.. (Article 10.6, Marrakesh Agreement.) This has been given effect to by Rules 17 and 20 of the Rules of 1995. 30. Keeping the imperative of completion of investigation within a pre-determined timeline, the guidelines contained in the Manual of Operation for Trade Remedy Investigations (Period of Investigation and Injury Investigation period) as to the contemporaneousness of the data necessary to carry out the investigation, assume importance. The relevant provisions of the Manual are extracted below: 5.9 The POI proposed in the application should be as latest as possible, and in any case not more than six months old as on date of initiation. If the proposed POI is more than six months old, then applicant may be asked to furnish revised application with fresh data. 5.10 The POI should normally be twelve months. As far as possible attempt should be made to identify POI as per the financial year, as it will make analysis easier and more accurate. An attempt should be made to select POI in such a way that at least one complete financial year is included in the POI to ensure availability of audited details at least for a part period of POI. It is always desirable to add period in terms of quarters (as the financial results are prepared quarter wise only) instead of any odd number of months as it may be difficult for other interested parties to submit their audited figures for such odd period. 31. The rationale for these guidelines is self-evident: any investigation carried out for past periods would in all likelihood, result in minimal levy. For instance, if in 2020, investigation is initiated for the period 2013-14, with the object of determining anti-dumping, even if injurious behavior is found, the levy can be only of limited duration. Further, to levy duty for the period after findings are rendered, the POI would yield stale results, and cannot justify levy for later periods. Keeping this in mind, the DA, apparently in the present case, having regard to Para 5.9 (quoted above) required Andhra Petro to furnish relatively contemporary data. Such an action cannot be termed as arbitrary. In this courts opinion, the impugned orders were plainly erroneous in chastising the DA, and even directing his replacement, for what appears to be his adherence to prescribed procedure. 32. Access to judicial review is a valuable right conferred upon citizens and persons aggrieved; the Constitution arms the High Courts and this court with powers under Articles 226 and 32. At the same time, barring exceptional features necessitating intervention in an ongoing investigation triggered by a complaint by the concerned domestic industry, judicial review should not be exercised virtually as a continuous oversight of the DAs functions. This court has cautioned more than once, that judicial review is to be exercised in a circumspect manner, especially where final findings are rendered by the DA.(Directorate General of Anti-Dumping vs. Sandik International (2018) 13 SCC 402 ; Association of Synthetic Fibre Industries vs. Apollo Tyres Ltd (2010) 13 SCC 733.) | 1[ds]25. This court, in S&S Enterprise vs. Designated Authority, (2005) 3 SCC 337 observed that the purpose behind the imposition of the duty is to curb unfair trade practices resorted to by exporters of a particular country of flooding the domestic markets with goods at rates which are lower than the rate at which the exporters normally sell the same or like goods in their own countries so as to cause or be likely to cause injury to the domestic market. It was noted that levy of anti-dumping duty is a move to remedy injury, recognized by GATT that balancesthe right of exporters from other countries to sell their products within the country with the interest of the domestic markets. Thus the factors to constitute dumping, are (i) an import at prices which are lower than the normal value of the goods in the exporting country; (ii) the exports must be sufficient to cause injury to the domestic industry.26. Reliance Industries Ltd. vs. Designated Authority, (2006) 10 SCC 368 explained that industries built after independence with great difficulty should not be allowed to be destroyed by unfair competition of some foreign companies. Dumping is a well-known method of unfair competition which is adopted by the foreign companies. The Court also said that, The purpose of Section 9-A is, therefore, to maintain a level playing field and prevent dumping while allowing for healthy competition.27. The DA, no doubt, follows a prescribed quasi-judicial procedure where a determination on whether to impose or not to impose anti-dumping duty takes place (through a report).(Tata Chemicals vs. Union of India, (2008) 17 SCC 180 ; Automotive Tyre Manufacturers Association vs. the Designated Authority (2011) 2 SCC 258 ) However, this proceeding culminates with a recommendation; the Central Government finally decides whether to impose such a duty, the extent of such duty, and its duration.(Rule 17 which speaks of recommendationby the DA. Also, the power to levy duty is discretionary, evident from Rule 18 which leaves it to the Central Government to levy anti-dumping duty, by following the prescribed methods) Under Rule 4, the DA is duty bound to conduct i) investigation of the existence, degree and effect of any alleged dumping in relation to imports of any article ; (ii) identify the article(s) on which anti-dumping duty is to be imposed; (iii) submit findings, provisional or otherwise to Central Government; (iv) determine the normal value, export price and the margin of dumping in relation to the article under investigation; and (v) determine the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of article from specified countries. The meaning of dumping is defined by Rule 10. Rule 17, which speaks of the findings of the DA, obliges that authority to make its final findings not later than one year from the initiation of investigation through a report that outlines the export price, normal value and margin of dumping, whether import of the article into India from specified countries causes material injury, or threatens injury, or materially retards the establishment of any industry in India, the causal link between the dumped import, etc. The proviso to Rule 17 (1) empowers the Central Government in its discretion in special circumstances to extend further the said period of one year by six months, within which the investigation is to be completed.29. Section 9A of the Customs Tariff Act and the procedure prescribed by the Rules of 1995, clearly disclose an intent that investigations should be completed within pre-determined time limits and the levy itself (which can be specific to foreign exporter or country - or combination of both-) cannot be more than five years - which may, after due review in accordance with prescribed procedure, before expiry of the said period, be extended by another period not more than five years. These timelines are crucial; the DA is duty bound to follow them. The analysis of the particular market behaviour by the allegedly offending foreign exporters, involves sifting of a great deal of evidence, such as manufacturing capacity, financial abilities, overall capacity of the country in the like field, prices, and the margin of acceptable delinquent behaviour, as well as domestic capacity, efficiency, etc, while determining if an injury exists, the margin of such injury and its likely duration. The judgment of this court in Union of India vs. Kumho Petrochemicals, (2017) 8 SCC 307. has noticed that as a signatory to GATT and the Marrakesh Agreement, the Anti-Dumping Rules (ADA) are to be assimilated into domestic laws. The provision of Article 5.10 of the Marrakesh Agreement is strict with respect to the timeline for taking up and conclusion of investigation. Article 10 empowers states to levy duties, with retrospective effect, only for a limited period (90 days subject to fulfilment of prescribed conditions) prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:.. (Article 10.6, Marrakesh Agreement.) This has been given effect to by Rules 17 and 20 of the Rules of 1995.31. The rationale for these guidelines is self-evident: any investigation carried out for past periods would in all likelihood, result in minimal levy. For instance, if in 2020, investigation is initiated for the period 2013-14, with the object of determining anti-dumping, even if injurious behavior is found, the levy can be only of limited duration. Further, to levy duty for the period after findings are rendered, the POI would yield stale results, and cannot justify levy for later periods. Keeping this in mind, the DA, apparently in the present case, having regard to Para 5.9 (quoted above) required Andhra Petro to furnish relatively contemporary data. Such an action cannot be termed as arbitrary. In this courts opinion, the impugned orders were plainly erroneous in chastising the DA, and even directing his replacement, for what appears to be his adherence to prescribed procedure.32. Access to judicial review is a valuable right conferred upon citizens and persons aggrieved; the Constitution arms the High Courts and this court with powers under Articles 226 and 32. At the same time, barring exceptional features necessitating intervention in an ongoing investigation triggered by a complaint by the concerned domestic industry, judicial review should not be exercised virtually as a continuous oversight of the DAs functions. This court has cautioned more than once, that judicial review is to be exercised in a circumspect manner, especially where final findings are rendered by the DA.(Directorate General of Anti-Dumping vs. Sandik International (2018) 13 SCC 402 ; Association of Synthetic Fibre Industries vs. Apollo Tyres Ltd (2010) 13 SCC 733.) | 1 | 6,341 | 1,286 | ### 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:
take effect from the date of its publication in the Official Gazette. (2) Notwithstanding anything contained in sub-rule (1) - (a) where a provisional duty has been levied and where the designated authority has recorded a final finding of injury or where the designated authority has recorded a final finding of threat of injury and a further finding that the effect of dumped imports in the absence of provisional duty would have led to injury, the antidumping duty may be levied from the date of imposition of provisional duty; (b) in the circumstances referred to in sub-section (3) of section 9A of the Act, the antidumping duty may be levied retrospectively from the date commencing ninety days prior to the imposition of such provisional duty: Provided that no duty shall be levied retrospectively on imports entered for home consumption before initiation of the investigation: Provided further that in the cases of violation of price undertaking referred to in sub-rule (6) of rule 15, no duty shall be levied retrospectively on the imports which have entered for home consumption before the violation of the terms of such undertaking. Provided also that notwithstanding anything contained in the foregoing proviso, in case of violation of such undertaking, the provisional duty shall be deemed to have been levied from the date of violation of the undertaking or such date as the Central Government may specify in each case. 29. Section 9A of the Customs Tariff Act and the procedure prescribed by the Rules of 1995, clearly disclose an intent that investigations should be completed within pre-determined time limits and the levy itself (which can be specific to foreign exporter or country - or combination of both-) cannot be more than five years - which may, after due review in accordance with prescribed procedure, before expiry of the said period, be extended by another period not more than five years. These timelines are crucial; the DA is duty bound to follow them. The analysis of the particular market behaviour by the allegedly offending foreign exporters, involves sifting of a great deal of evidence, such as manufacturing capacity, financial abilities, overall capacity of the country in the like field, prices, and the margin of acceptable delinquent behaviour, as well as domestic capacity, efficiency, etc, while determining if an injury exists, the margin of such injury and its likely duration. The judgment of this court in Union of India vs. Kumho Petrochemicals, (2017) 8 SCC 307. has noticed that as a signatory to GATT and the Marrakesh Agreement, the Anti-Dumping Rules (ADA) are to be assimilated into domestic laws. The provision of Article 5.10 of the Marrakesh Agreement is strict with respect to the timeline for taking up and conclusion of investigation. Article 10 empowers states to levy duties, with retrospective effect, only for a limited period (90 days subject to fulfilment of prescribed conditions) prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:.. (Article 10.6, Marrakesh Agreement.) This has been given effect to by Rules 17 and 20 of the Rules of 1995. 30. Keeping the imperative of completion of investigation within a pre-determined timeline, the guidelines contained in the Manual of Operation for Trade Remedy Investigations (Period of Investigation and Injury Investigation period) as to the contemporaneousness of the data necessary to carry out the investigation, assume importance. The relevant provisions of the Manual are extracted below: 5.9 The POI proposed in the application should be as latest as possible, and in any case not more than six months old as on date of initiation. If the proposed POI is more than six months old, then applicant may be asked to furnish revised application with fresh data. 5.10 The POI should normally be twelve months. As far as possible attempt should be made to identify POI as per the financial year, as it will make analysis easier and more accurate. An attempt should be made to select POI in such a way that at least one complete financial year is included in the POI to ensure availability of audited details at least for a part period of POI. It is always desirable to add period in terms of quarters (as the financial results are prepared quarter wise only) instead of any odd number of months as it may be difficult for other interested parties to submit their audited figures for such odd period. 31. The rationale for these guidelines is self-evident: any investigation carried out for past periods would in all likelihood, result in minimal levy. For instance, if in 2020, investigation is initiated for the period 2013-14, with the object of determining anti-dumping, even if injurious behavior is found, the levy can be only of limited duration. Further, to levy duty for the period after findings are rendered, the POI would yield stale results, and cannot justify levy for later periods. Keeping this in mind, the DA, apparently in the present case, having regard to Para 5.9 (quoted above) required Andhra Petro to furnish relatively contemporary data. Such an action cannot be termed as arbitrary. In this courts opinion, the impugned orders were plainly erroneous in chastising the DA, and even directing his replacement, for what appears to be his adherence to prescribed procedure. 32. Access to judicial review is a valuable right conferred upon citizens and persons aggrieved; the Constitution arms the High Courts and this court with powers under Articles 226 and 32. At the same time, barring exceptional features necessitating intervention in an ongoing investigation triggered by a complaint by the concerned domestic industry, judicial review should not be exercised virtually as a continuous oversight of the DAs functions. This court has cautioned more than once, that judicial review is to be exercised in a circumspect manner, especially where final findings are rendered by the DA.(Directorate General of Anti-Dumping vs. Sandik International (2018) 13 SCC 402 ; Association of Synthetic Fibre Industries vs. Apollo Tyres Ltd (2010) 13 SCC 733.)
### Response:
1
### Explanation:
country with the interest of the domestic markets. Thus the factors to constitute dumping, are (i) an import at prices which are lower than the normal value of the goods in the exporting country; (ii) the exports must be sufficient to cause injury to the domestic industry.26. Reliance Industries Ltd. vs. Designated Authority, (2006) 10 SCC 368 explained that industries built after independence with great difficulty should not be allowed to be destroyed by unfair competition of some foreign companies. Dumping is a well-known method of unfair competition which is adopted by the foreign companies. The Court also said that, The purpose of Section 9-A is, therefore, to maintain a level playing field and prevent dumping while allowing for healthy competition.27. The DA, no doubt, follows a prescribed quasi-judicial procedure where a determination on whether to impose or not to impose anti-dumping duty takes place (through a report).(Tata Chemicals vs. Union of India, (2008) 17 SCC 180 ; Automotive Tyre Manufacturers Association vs. the Designated Authority (2011) 2 SCC 258 ) However, this proceeding culminates with a recommendation; the Central Government finally decides whether to impose such a duty, the extent of such duty, and its duration.(Rule 17 which speaks of recommendationby the DA. Also, the power to levy duty is discretionary, evident from Rule 18 which leaves it to the Central Government to levy anti-dumping duty, by following the prescribed methods) Under Rule 4, the DA is duty bound to conduct i) investigation of the existence, degree and effect of any alleged dumping in relation to imports of any article ; (ii) identify the article(s) on which anti-dumping duty is to be imposed; (iii) submit findings, provisional or otherwise to Central Government; (iv) determine the normal value, export price and the margin of dumping in relation to the article under investigation; and (v) determine the injury or threat of injury to an industry established in India or material retardation to the establishment of an industry in India consequent upon the import of article from specified countries. The meaning of dumping is defined by Rule 10. Rule 17, which speaks of the findings of the DA, obliges that authority to make its final findings not later than one year from the initiation of investigation through a report that outlines the export price, normal value and margin of dumping, whether import of the article into India from specified countries causes material injury, or threatens injury, or materially retards the establishment of any industry in India, the causal link between the dumped import, etc. The proviso to Rule 17 (1) empowers the Central Government in its discretion in special circumstances to extend further the said period of one year by six months, within which the investigation is to be completed.29. Section 9A of the Customs Tariff Act and the procedure prescribed by the Rules of 1995, clearly disclose an intent that investigations should be completed within pre-determined time limits and the levy itself (which can be specific to foreign exporter or country - or combination of both-) cannot be more than five years - which may, after due review in accordance with prescribed procedure, before expiry of the said period, be extended by another period not more than five years. These timelines are crucial; the DA is duty bound to follow them. The analysis of the particular market behaviour by the allegedly offending foreign exporters, involves sifting of a great deal of evidence, such as manufacturing capacity, financial abilities, overall capacity of the country in the like field, prices, and the margin of acceptable delinquent behaviour, as well as domestic capacity, efficiency, etc, while determining if an injury exists, the margin of such injury and its likely duration. The judgment of this court in Union of India vs. Kumho Petrochemicals, (2017) 8 SCC 307. has noticed that as a signatory to GATT and the Marrakesh Agreement, the Anti-Dumping Rules (ADA) are to be assimilated into domestic laws. The provision of Article 5.10 of the Marrakesh Agreement is strict with respect to the timeline for taking up and conclusion of investigation. Article 10 empowers states to levy duties, with retrospective effect, only for a limited period (90 days subject to fulfilment of prescribed conditions) prior to the date of application of provisional measures, when the authorities determine for the dumped product in question that:.. (Article 10.6, Marrakesh Agreement.) This has been given effect to by Rules 17 and 20 of the Rules of 1995.31. The rationale for these guidelines is self-evident: any investigation carried out for past periods would in all likelihood, result in minimal levy. For instance, if in 2020, investigation is initiated for the period 2013-14, with the object of determining anti-dumping, even if injurious behavior is found, the levy can be only of limited duration. Further, to levy duty for the period after findings are rendered, the POI would yield stale results, and cannot justify levy for later periods. Keeping this in mind, the DA, apparently in the present case, having regard to Para 5.9 (quoted above) required Andhra Petro to furnish relatively contemporary data. Such an action cannot be termed as arbitrary. In this courts opinion, the impugned orders were plainly erroneous in chastising the DA, and even directing his replacement, for what appears to be his adherence to prescribed procedure.32. Access to judicial review is a valuable right conferred upon citizens and persons aggrieved; the Constitution arms the High Courts and this court with powers under Articles 226 and 32. At the same time, barring exceptional features necessitating intervention in an ongoing investigation triggered by a complaint by the concerned domestic industry, judicial review should not be exercised virtually as a continuous oversight of the DAs functions. This court has cautioned more than once, that judicial review is to be exercised in a circumspect manner, especially where final findings are rendered by the DA.(Directorate General of Anti-Dumping vs. Sandik International (2018) 13 SCC 402 ; Association of Synthetic Fibre Industries vs. Apollo Tyres Ltd (2010) 13 SCC 733.)
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Joseph Vilangandan Vs. The Executive Engineer, Buildings & Roads (P.W.D.) Division | or debar the appellant from faking contracts with B &R Department in Ernakulam Division, the impugned order was illegal and void for the reason that no opportunity was given to the Appellant to represent his case before he was put on the black list. For this contention, reliance has been placed on the recent decision of this Court in Erusian Equipment &Chemicals Ltd. v. State of West Bengal.([1975] 2 S.C.R.674.)As against the above, the learned Attorney General has drawn our attention to the fact that a notice, dated April 17, 1968 (Ex. P-6) was given by the Executive Engineer to the appellant requesting the latter to show cause why the work may not be got done through other agencies, at the appellants risk and loss; after debarring him as a defaulter. It is submitted that this notice did indicate to the appellant that action to debar him from doing further contract work under the department was contemplated, and as such, this case is not hit by the ratio of Erusian Equipments case (ibid). It is further maintained that in Thomas v. State of Kerala, (I L R (1968) 2 Kerala 1 (F.B.)) it was rightly observed that the law does not deny to the Government the freedom of contract (carrying with it the freedom not to enter into a contract, it vouchsafes to every person. Reference was also made to the observations of this Court in C.K. Achuthan v. State of Kerala (A.I.R. 1959 S.C. 490.) in support of the contention that the impugned order does not per se offend Articles 14 and 19 (a) (g) of the Constitution. Those observations are to the effect:"There is no discrimination, because it is perfectly open to the Government, even as it is to a private party, to choose a person to their liking, to fulfill contracts which they wish to be performed. When one person is chosen rather than another, the aggrieved party cannot claim the protection of Article 14, because the choice of the- person to fulfill a particular contract must be left to the Government. (Because of the breach or, cancellation of his contract, the private person) cannot complain that there has been a deprivation. of the right to practice any profession or to carry on any occupation, trade or business, such as is contemplated by Article 19(1)(g)." (Parenthesis, within brackets, added).The majority judgment of the Kerala High Court, inasmuch as it holds that a person is not entitled to a hearing, before: he is blacklisted, must be deemed to have been overruled by the decision of this Court in Erusian Equipment (ibid) wherein it was held that:"fundamentals of fairplay require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist."10. Controversy in the instant case, therefore, narrows down into the issue, whether such an opportunity was given to the appellant. Answer to this question will turn on an interpretation of the notice, dated April 17, 1968 (Ex. P- 8) given by the Executive Engineer to the appellant. This notice has been extracted in a foregoing part of this judgment. The material sentence therein is:"You are, therefore, requested to show cause .... why the work may not be arranged otherwise at your risk and loss, through other 1 agencies after debarring you as a defaulter.............. The crucial words are t hose that have been underlined. They take their color from the context. Construed along with the links of the sentence which precede and succeed them, the word s "debarring you as a defaulter", could be understood as conveying no more than that an action with reference to the contract in question, only was under contemplation. There are no words in the notice which could give a clear intimation to the addressee that it was proposed to debar him from taking any contract, whatever, in future under the. department. A perusal of the appellants reply (Ex. P-7), dated May 20, 1968, sent to the Executive Engineer, also appears to show that by the word "debarring" mentioned in the Executive Engineers letter dated April 17, 1968 (Ex. P-6), he understood as debarring him from executing the contract in question after declaring him a defaulter, and then getting the same work d one by other agencies, at his risk and loss. All that has been said in Ex. P-7 by the appellant is directed to justify that the non-execution of the contract was not due to his fault, but due to the delay on the part of the department in handing over the building to him for starting the work within the time specified in the agreement, and consequently, if any loss would be incurred by the department in getting the work done through any other agency, he would not be liable to make good the same. In short, the letter (Ex. P-6) dated April 17, 1968 from the Executive Engineer, did not give any clear notice to the appellant that action to debar him from taking in future any contract, whatever, under the department or its Ernakulam Division was in contemplation. The appellant was thus not afforded adequate opportunity to represent against the impugned action.This being the position, the rule in Erusian Equipments case (ibid) will be attracted with full force. While conceding that the State can enter into contract with any person it chooses and no person has a fundamental Tight to insist that the Government must enter a contract with him, this Court observed (in the said case)"Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the black list."11. The above enunciation squarely covers the case before us.12. | 1[ds]Answer to this question will turn on an interpretation of the notice, dated April 17, 1968 (Ex. P- 8) given by the Executive Engineer to the appellant. This notice has been extracted in a foregoing part of this judgment. The material sentence therein is:"You are, therefore, requested to show cause .... why the work may not be arranged otherwise at your risk and loss, through other 1 agencies after debarring you as a defaulter.............. The crucial words are t hose that have been underlined. They take their color from the context. Construed along with the links of the sentence which precede and succeed them, the word s "debarring you as a defaulter", could be understood as conveying no more than that an action with reference to the contract in question, only was under contemplation. There are no words in the notice which could give a clear intimation to the addressee that it was proposed to debar him from taking any contract, whatever, in future under the. department. A perusal of the appellants reply (Ex. P-7), dated May 20, 1968, sent to the Executive Engineer, also appears to show that by the word "debarring" mentioned in the Executive Engineers letter dated April 17, 1968 (Ex. P-6), he understood as debarring him from executing the contract in question after declaring him a defaulter, and then getting the same work d one by other agencies, at his risk and loss. All that has been said in Ex. P-7 by the appellant is directed to justify that the non-execution of the contract was not due to his fault, but due to the delay on the part of the department in handing over the building to him for starting the work within the time specified in the agreement, and consequently, if any loss would be incurred by the department in getting the work done through any other agency, he would not be liable to make good the same. In short, the letter (Ex. P-6) dated April 17, 1968 from the Executive Engineer, did not give any clear notice to the appellant that action to debar him from taking in future any contract, whatever, under the department or its Ernakulam Division was in contemplation. The appellant was thus not afforded adequate opportunity to represent against the impugned action.This being the position, the rule in Erusian Equipments case (ibid) will be attracted with full force. While conceding that the State can enter into contract with any person it chooses and no person has a fundamental Tight to insist that the Government must enter a contract with him, this Court observed (in the said case)"Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blackabove enunciation squarely covers the case before us. | 1 | 2,569 | 590 | ### 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:
or debar the appellant from faking contracts with B &R Department in Ernakulam Division, the impugned order was illegal and void for the reason that no opportunity was given to the Appellant to represent his case before he was put on the black list. For this contention, reliance has been placed on the recent decision of this Court in Erusian Equipment &Chemicals Ltd. v. State of West Bengal.([1975] 2 S.C.R.674.)As against the above, the learned Attorney General has drawn our attention to the fact that a notice, dated April 17, 1968 (Ex. P-6) was given by the Executive Engineer to the appellant requesting the latter to show cause why the work may not be got done through other agencies, at the appellants risk and loss; after debarring him as a defaulter. It is submitted that this notice did indicate to the appellant that action to debar him from doing further contract work under the department was contemplated, and as such, this case is not hit by the ratio of Erusian Equipments case (ibid). It is further maintained that in Thomas v. State of Kerala, (I L R (1968) 2 Kerala 1 (F.B.)) it was rightly observed that the law does not deny to the Government the freedom of contract (carrying with it the freedom not to enter into a contract, it vouchsafes to every person. Reference was also made to the observations of this Court in C.K. Achuthan v. State of Kerala (A.I.R. 1959 S.C. 490.) in support of the contention that the impugned order does not per se offend Articles 14 and 19 (a) (g) of the Constitution. Those observations are to the effect:"There is no discrimination, because it is perfectly open to the Government, even as it is to a private party, to choose a person to their liking, to fulfill contracts which they wish to be performed. When one person is chosen rather than another, the aggrieved party cannot claim the protection of Article 14, because the choice of the- person to fulfill a particular contract must be left to the Government. (Because of the breach or, cancellation of his contract, the private person) cannot complain that there has been a deprivation. of the right to practice any profession or to carry on any occupation, trade or business, such as is contemplated by Article 19(1)(g)." (Parenthesis, within brackets, added).The majority judgment of the Kerala High Court, inasmuch as it holds that a person is not entitled to a hearing, before: he is blacklisted, must be deemed to have been overruled by the decision of this Court in Erusian Equipment (ibid) wherein it was held that:"fundamentals of fairplay require that the person concerned should be given an opportunity to represent his case before he is put on the blacklist."10. Controversy in the instant case, therefore, narrows down into the issue, whether such an opportunity was given to the appellant. Answer to this question will turn on an interpretation of the notice, dated April 17, 1968 (Ex. P- 8) given by the Executive Engineer to the appellant. This notice has been extracted in a foregoing part of this judgment. The material sentence therein is:"You are, therefore, requested to show cause .... why the work may not be arranged otherwise at your risk and loss, through other 1 agencies after debarring you as a defaulter.............. The crucial words are t hose that have been underlined. They take their color from the context. Construed along with the links of the sentence which precede and succeed them, the word s "debarring you as a defaulter", could be understood as conveying no more than that an action with reference to the contract in question, only was under contemplation. There are no words in the notice which could give a clear intimation to the addressee that it was proposed to debar him from taking any contract, whatever, in future under the. department. A perusal of the appellants reply (Ex. P-7), dated May 20, 1968, sent to the Executive Engineer, also appears to show that by the word "debarring" mentioned in the Executive Engineers letter dated April 17, 1968 (Ex. P-6), he understood as debarring him from executing the contract in question after declaring him a defaulter, and then getting the same work d one by other agencies, at his risk and loss. All that has been said in Ex. P-7 by the appellant is directed to justify that the non-execution of the contract was not due to his fault, but due to the delay on the part of the department in handing over the building to him for starting the work within the time specified in the agreement, and consequently, if any loss would be incurred by the department in getting the work done through any other agency, he would not be liable to make good the same. In short, the letter (Ex. P-6) dated April 17, 1968 from the Executive Engineer, did not give any clear notice to the appellant that action to debar him from taking in future any contract, whatever, under the department or its Ernakulam Division was in contemplation. The appellant was thus not afforded adequate opportunity to represent against the impugned action.This being the position, the rule in Erusian Equipments case (ibid) will be attracted with full force. While conceding that the State can enter into contract with any person it chooses and no person has a fundamental Tight to insist that the Government must enter a contract with him, this Court observed (in the said case)"Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the black list."11. The above enunciation squarely covers the case before us.12.
### Response:
1
### Explanation:
Answer to this question will turn on an interpretation of the notice, dated April 17, 1968 (Ex. P- 8) given by the Executive Engineer to the appellant. This notice has been extracted in a foregoing part of this judgment. The material sentence therein is:"You are, therefore, requested to show cause .... why the work may not be arranged otherwise at your risk and loss, through other 1 agencies after debarring you as a defaulter.............. The crucial words are t hose that have been underlined. They take their color from the context. Construed along with the links of the sentence which precede and succeed them, the word s "debarring you as a defaulter", could be understood as conveying no more than that an action with reference to the contract in question, only was under contemplation. There are no words in the notice which could give a clear intimation to the addressee that it was proposed to debar him from taking any contract, whatever, in future under the. department. A perusal of the appellants reply (Ex. P-7), dated May 20, 1968, sent to the Executive Engineer, also appears to show that by the word "debarring" mentioned in the Executive Engineers letter dated April 17, 1968 (Ex. P-6), he understood as debarring him from executing the contract in question after declaring him a defaulter, and then getting the same work d one by other agencies, at his risk and loss. All that has been said in Ex. P-7 by the appellant is directed to justify that the non-execution of the contract was not due to his fault, but due to the delay on the part of the department in handing over the building to him for starting the work within the time specified in the agreement, and consequently, if any loss would be incurred by the department in getting the work done through any other agency, he would not be liable to make good the same. In short, the letter (Ex. P-6) dated April 17, 1968 from the Executive Engineer, did not give any clear notice to the appellant that action to debar him from taking in future any contract, whatever, under the department or its Ernakulam Division was in contemplation. The appellant was thus not afforded adequate opportunity to represent against the impugned action.This being the position, the rule in Erusian Equipments case (ibid) will be attracted with full force. While conceding that the State can enter into contract with any person it chooses and no person has a fundamental Tight to insist that the Government must enter a contract with him, this Court observed (in the said case)"Blacklisting has the effect of preventing a person from the privilege and advantage of entering into lawful relationship with the Government for purposes of gains. The fact that a disability is created by the order of blacklisting indicates that the relevant authority is to have an objective satisfaction. Fundamentals of fair play require that the person concerned should be given an opportunity to represent his case before he is put on the blackabove enunciation squarely covers the case before us.
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Bharat Petroleum Corp.Ltd Vs. Chembur Service Station | or deemed to be registered under the Maharashtra Co- under the Maharashtra Co- operative Societies Act, operative Societies Act, 1960 (Mah. XXIV of 1961) but 1960; but does not include a does not include a paying paying guest, a member of a guest, a member of a family family residing together, a residing together, a person person in the service or in the service or employment employment of the licensor, of the licensor, or a person or a person conducting a conducting a running running business belonging business belonging to the to the licensor, (for a licensor or a person having person having any any accommodation for accommodation for rendering rendering or carrying on or carrying on medical or medical or paramedical para-medical services or services or activities in or activities in or near a near a nursing home, nursing home, hospital or hospital, or sanatorium or sanatorium, dharmashala, a person having any home for widows, orphans or accommodation in a hotel, like premises, marriage or lodging house, hostel, guest public hall or like house, club, nursing home, premises........." hospital, sanatorium, dharmashala, home for widows, orphans or like premises, marriage or public hall or like premises......." (emphasis supplied) 31. The old Bombay Rent Act recognised such licensees as `deemed tenants under section 15A and they are covered under the definition of a tenant under section 7(15)(a) of the MRC Act. Section 15A of the old Bombay Rent Act read as follows : - "15A. Certain licensees in occupation on 1st February 1973 to become tenants-(1) Notwithstanding anything contained elsewhere in this Act or anything contrary to in any other law for the time being in force, or in any contract where any person is on the 1st day of February 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purpose of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation.(2) The provisions of sub-section (1) shall not affect in any manner the operation of sub- section (1) of section 15 after the date aforesaid." Significantly there is no provision either in the old Bombay Rent Act or under the MRC Act, enabling or treating any person who became a licensee after 1.2.1973 as a deemed tenant. 32. The occupation by the respondent was not occupation on its own account, but occupation on behalf of the appellant. Therefore the respondent was not in `occupation of the outlet in its own right for its own proposes, but was using the outlet and facilities in the possession and occupation of the appellant, to sell the appellants products in the manner provided in the DPSL Agreement. In such a situation, the agent who is called as the licensee does not become a deemed tenant. The condition for deemed tenancy is not the description of the person as `licensee, but the person being in occupation of a premises as licensee as on 1.2.1973. A person who obtains a licence from the government to sell liquor is a `licensee. A person who obtains a licence from the municipal corporation to construct a building is also a `licensee. A person authorized to drive a motor vehicle is also a `licensee. Every person who holds any type of `licence does not become a tenant. The deemed tenancy under Section 15A of old Bombay Rent Act refers to a person who held a licence to use a premises for his own use as on 1.2.1973. 33. Section 5(4A) of the old Bombay Rent Act defined a licensee in respect of any premises or any part thereof, as referring to the person who is in occupation of the premises or such part under a subsisting agreement for licence given for a licence fee or charge. The definition makes it clear, a person in the service or employment of the licensor, or a person conducting a running business belonging to the licensor is not a `licensee where the appellant has a retail outlet in a premises either owned or taken on lease by it, where it has installed its specialized equipment/facilities for sale of its products and the outlet is exclusively used for the sale of the products of the appellant, the unit is running business of the appellant. An agent licensed to run the Retail Petroleum outlet of the appellant, which is a running business belonging to the appellant is not therefore a `licensee either under the old Bombay Rent Act (nor under the new MRC Act). Therefore the respondent did not become a tenant under the appellant nor became entitled to protection against eviction. 34. Only those persons who held a licence to occupy any premises as on 1.2.1973 could become deemed tenants under Section 15(A) of the old Bombay Rent Act. As a person conducting a running business on behalf of the owner of such business is not a `licensee as defined under the Rent Act, even if the person concerned was using premises on 1.2.1973, he will not become a deemed tenant. Consequently the respondent could not claim that he became a deemed tenant. Therefore the respondent could not claim the protection of any rent control law as a tenant. One more aspects may be noticed here. If the respondent had become a deemed tenant in 1972, it would not have entered into an agreement on 1.7.1995 reiterating that it continue to be a licensee and that it does not have any leasehold or tenancy rights in the premises. In view of the above, it is not necessary to consider the alternative contention of the appellant that even if the respondent had become a deemed tenant in pursuance of the agreement dated 1.4.1972, such a tenancy come to an end and the appellant again become licensee pure and simple from 1.12.1995 when the fresh agreement was entered, does not require to be considered. Conclusion 35. | 1[ds]21. Where an employer or principal permits the use of its premises, by its employee or agent, such use, whether loosely referred to as `possession or `occupation or `use by the employee or the agent, is on behalf of the employer/principal. In other words, the employer/principal continues to be in possession and occupation and the employee/agent is merely a licensee who is permitted to enter the premises for the limited purpose of selling the goods of the employer/principle. The employee/agent cannot claim any `possession or `occupation or `right to use independent of the employer/principal who is the licensor. In such cases if the employee is terminated from service, he cannot obviously contend that he is in "occupation" of the premises and that he can be evicted or dispossessed only by initiating action in a court of law. Similarly the agent who is permitted to enter the premises every day to sell the goods cannot, on termination of the agency, contend that he continues to be in exclusive occupation of the premises and unless evicted through a court of law entitled to continue in occupation. This is because licence that is granted to the employee/agent is a limited licence to enter upon and use the premises, not for his own purposes or his own business, but for the purposes of the employer/principal, to sell its goods in the manner prescribed by the employer/principal and subject to the terms and conditions stipulated in the contract of employment/agency in regard to the manner of sales, the prices at which the goods are to be sold or the services to be rendered to the customers. In such cases, when the employment or agency is terminated and the employer/principal informs the employee/agent that his services are no longer required and he is no longer the employee/agent, the licence granted to such employee/agent to enter the retail outlet stands revoked and the ex- employee/ex-agent ceases to have any right to enter the premises. On the other hand, the employer/principal who continues to have possession will be entitled to enter the premises, or appoint another employee or agent, or legitimately prevent the ex-employee/ex-agent from entering upon the premises or using the premises. In such cases, there is no need for the licensor (that is the employer or the principal) to file a suit for eviction or injunction against the ex-employee or ex-agent. The licensor can protect or defend its possession and physically prevent the licensee (employee/agent) from entering the outlet.Where the licence in favour of the licensee is only to use the retail outlet premises or use the equipments/facilities installed therein, exclusively in connection with the sale of the goods of the licensor, the licensee does not have the right to use the premises for dealing or selling any other goods. When the licensee cannot use the premises for any purpose on account of the stoppage of supply of licensors goods for sale, it will be wholly unreasonable to require the licensor to sue the licensee for `possession of such company controlled retail outlet premises. This is not a case where the licensee has alleged that any amount is due to it from the licensor by way of commission or remuneration for services, or that on account of non-payment thereof it is entitled to retain the retail outlet premises and facilities of the licensor by claiming a lien over them under section 221 of the Indian Contract Act, 1872. In regard to a licence governed by a commercial contract, it may be inappropriate to apply the principles of Administrative Law, even if the licensor may answer the definition of `State under Article 12 of the Constitution of India. In view of the above, it is unnecessary to examine whether appellant is a `state within the meaning of that expression under Article 12 of the Constitution of India, nor necessary to keep in view the requirement that if the licensor answers the definition of `state, a duty to act fairly and reasonably without any arbitrariness or discrimination is also implied. Be that as it may.27. It is made clear that this decision applies only to licences where the licensor is the owner/ lessee of the premises and the equipment (in this case dispensing pumps and other equipment) and where the licensee is engaged merely for sale of the products of the licensor. In other words, this decision would apply to petrol stations which are known as CCROs (`Company Controlled Retail Outlets).In this case in pursuance of a routine inspection certain serious irregularities were viewed and as a consequence supply of its products was stopped, suspended and a show cause notice was issued calling upon respondent to show cause why action should not be taken including termination of the dealership for the reasons stated therein. Therefore when such a notice is issued as a precursor to termination, the respondent licensee ceases to have right to sell the goods in the outlet premises and does not get the cause of action either to seek continuance of the supply of the products or remain in and use the premises. The show cause notice was followed by a termination of the licence of dealership on 19.3.2009. Even if the termination or non-supply amounts to breach of contract, the remedy of the agent-licensee at best is to seek damages, if it is established that the dealership was wrongly determined or supply was wrongly stopped. Consequently, the licensee does not have any right to use the premises nor any right to enter upon the premises after the termination of the agency.Only those persons who held a licence to occupy any premises as on 1.2.1973 could become deemed tenants under Section 15(A) of the old Bombay Rent Act. As a person conducting a running business on behalf of the owner of such business is not a `licensee as defined under the Rent Act, even if the person concerned was using premises on 1.2.1973, he will not become a deemed tenant. Consequently the respondent could not claim that he became a deemed tenant. Therefore the respondent could not claim the protection of any rent control law as a tenant. One more aspects may be noticed here. If the respondent had become a deemed tenant in 1972, it would not have entered into an agreement on 1.7.1995 reiterating that it continue to be a licensee and that it does not have any leasehold or tenancy rights in the premises. In view of the above, it is not necessary to consider the alternative contention of the appellant that even if the respondent had become a deemed tenant in pursuance of the agreement dated 1.4.1972, such a tenancy come to an end and the appellant again become licensee pure and simple from 1.12.1995 when the fresh agreement was entered, does not require to be considered.In view of the above, this appeal is allowed. The order of the High Court and the order of the courts below, directing status quo are set aside. Consequently, the appellant is entitled to continue in possession of the petrol pump premises and use it for its business. The appellant is also entitled to lawfully prevent the respondent from entering upon the premises. The trial court is directed to dispose of the suit expeditiously, on the basis of the evidence, in accordance with law, keeping in view the legal position explained above.The case of the appellant, however was that the appellant were right in challenging the other part of the order of the Appellate Bench of the Court of Small Causes wherein the bench had maintained the part of the order of status-quo passed by a Single Judge at that Court with respect to the possession of the respondent. The appellant had, therefore, rightly filed the abovereferred Writ Petition No. 8130 of 2008. According to the appellant, they had not let out the premises to the respondent, but had allowed the respondent only to sell appellants petroleum products at a price fixed by the Ministry of Petroleum from time to time. The manipulation in the dispensing unit effected by the respondent had led to the issuance of the show cause notice. The respondent had rushed to the Court of Small Causes even before the reply of the respondent could be considered by the appellant. By seeking an injunction in the Court of Small Causes, the respondent had restrained the appellant from taking any decision on the show cause notice, which decision the appellant has now taken after the impugned order was passed by the Learned Single Judge in Writ Petition No. 8130 of 2008, who has held that the civil action initiated by the respondent could not prevent the appellant from taking action in accordance with due process of law. That is why now the appellant has determined the respondents licence by their letter dated 19.3.2009 and according to them that is sufficient compliance of the requirement of due process of law. According to the appellant, with this determination of agency, the action in accordance with the due process of law is complete and they can take the possession of the RPO, if required forcibly. According to them the emphasis of the Learned Single Judge on following the due process under the Public Premises Act was erroneous.It is true that in Southern Roadways Limited (supra) this Court did observe in paragraph 22 that the possession of the respondent in that case was on behalf of the company and not on his own right. And therefore, it was not necessary for the company to file a suit for the recovery of possession. Those observations will have to be read as laying down the law in the fact situation which emerged in that case and would apply to similar situations. The issue with respect to the premises of a Public Corporation did not arise in that matter. Besides, in the facts of the case before us, amongst others the respondent had raised the issue with respect to the nature of his licence to remain on the premises, and had also sought the protection which was available to the licencee in occupation of the premises prior to 1.2.1973. Whether the respondent was right in that contention or not is not for this Court to determine. It is for the appropriate authority to decide. That is the minimum opportunity which will be required to be provided to the respondent in the facts of the present case, when he is in occupation of the concerned premises for nearly 40 years. It is also relevant to note that even on the footing of being an agent, apart from the right to receive the compensation in a situation which could be placed under Section 205 of the Contract Act, the agent also has the right to remain on the property of the principal under Section 221 of the Contract Act, for the reliefs which are available under that section if he makes out such a case. It is another matter that as stated above the respondent has placed his case on a higher pedestal, but even on the basis that he is a mere agent, he does have certain rights under Sections 205 and 221 of the Contract Act, and para 13 of Southern Roadways Limited (supra) specifically recognizes that. This being the position it cannot be said that the respondent does not deserve even an opportunity of being heard. What are the relevant terms of the agreement between the parties, what is their true connotation and what order could be obtained by the appellant against the respondent, or what relief at the highest the respondent would be entitled to, will have be considered and decided before an appropriate forum.36. It is also relevant to note that all throughout the respondent has contended that respondent has been in exclusive possession of the premises concerned, and all the employees on the premises are that of the respondent. Even in the first suit filed in the court of small causes, respondent has pointed out that there was a problem with respect to the dispensing unit once in the past in year 2002, and in consultation with the petitioner the respondent took corrective measures. The reports all throughout thereafter have been satisfactory and the respondent has relied upon a voluminous correspondence in that behalf in paragraphs 33 to 60 of the plaint filed in the court of small causes. In the third suit bearing No. 706 of 2009 challenging the termination of the licence filed in the City Civil Court Mumbai, the respondent has specifically pleaded in paragraph 69 that the termination was without any reasons and was contrary to public policy, and was violative of Article 14 of the Constitution of India. In paragraph 77, respondent has specifically submitted that a technical fault in the machine cannot amount to manipulation and that apart it was not a case of adulteration. All these submissions of the respondent require a determination. An opportunity of being heard is something minimum in the circumstances. The proceedings before the authority under the Public Premises Act is an expeditious proceeding and that is something minimum in the circumstances. A Public Corporation from which a higher standard is expected, cannot refuse to follow this much minimum due process of law.37. In the circumstances we have no reason to interfere with the order passed by the Learned Single Judge. We, however, make it clear that the observations made above are for the purposes of deciding the correctness or otherwise of the impugned order passed by the Learned Single Judge and not on the merit of the rival claims. We make it very clear that in the event the appellant takes the steps under the Public Premises Act, it will be open to the respondent to plead their case before the competent authority on all counts, though it will also be open to the competent authority concerned to take its own decision on the merits of the rival contention on facts as well as on law. | 1 | 9,821 | 2,522 | ### 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:
or deemed to be registered under the Maharashtra Co- under the Maharashtra Co- operative Societies Act, operative Societies Act, 1960 (Mah. XXIV of 1961) but 1960; but does not include a does not include a paying paying guest, a member of a guest, a member of a family family residing together, a residing together, a person person in the service or in the service or employment employment of the licensor, of the licensor, or a person or a person conducting a conducting a running running business belonging business belonging to the to the licensor, (for a licensor or a person having person having any any accommodation for accommodation for rendering rendering or carrying on or carrying on medical or medical or paramedical para-medical services or services or activities in or activities in or near a near a nursing home, nursing home, hospital or hospital, or sanatorium or sanatorium, dharmashala, a person having any home for widows, orphans or accommodation in a hotel, like premises, marriage or lodging house, hostel, guest public hall or like house, club, nursing home, premises........." hospital, sanatorium, dharmashala, home for widows, orphans or like premises, marriage or public hall or like premises......." (emphasis supplied) 31. The old Bombay Rent Act recognised such licensees as `deemed tenants under section 15A and they are covered under the definition of a tenant under section 7(15)(a) of the MRC Act. Section 15A of the old Bombay Rent Act read as follows : - "15A. Certain licensees in occupation on 1st February 1973 to become tenants-(1) Notwithstanding anything contained elsewhere in this Act or anything contrary to in any other law for the time being in force, or in any contract where any person is on the 1st day of February 1973 in occupation of any premises, or any part thereof which is not less than a room, as a licensee he shall on that date be deemed to have become, for the purpose of this Act, the tenant of the landlord, in respect of the premises or part thereof, in his occupation.(2) The provisions of sub-section (1) shall not affect in any manner the operation of sub- section (1) of section 15 after the date aforesaid." Significantly there is no provision either in the old Bombay Rent Act or under the MRC Act, enabling or treating any person who became a licensee after 1.2.1973 as a deemed tenant. 32. The occupation by the respondent was not occupation on its own account, but occupation on behalf of the appellant. Therefore the respondent was not in `occupation of the outlet in its own right for its own proposes, but was using the outlet and facilities in the possession and occupation of the appellant, to sell the appellants products in the manner provided in the DPSL Agreement. In such a situation, the agent who is called as the licensee does not become a deemed tenant. The condition for deemed tenancy is not the description of the person as `licensee, but the person being in occupation of a premises as licensee as on 1.2.1973. A person who obtains a licence from the government to sell liquor is a `licensee. A person who obtains a licence from the municipal corporation to construct a building is also a `licensee. A person authorized to drive a motor vehicle is also a `licensee. Every person who holds any type of `licence does not become a tenant. The deemed tenancy under Section 15A of old Bombay Rent Act refers to a person who held a licence to use a premises for his own use as on 1.2.1973. 33. Section 5(4A) of the old Bombay Rent Act defined a licensee in respect of any premises or any part thereof, as referring to the person who is in occupation of the premises or such part under a subsisting agreement for licence given for a licence fee or charge. The definition makes it clear, a person in the service or employment of the licensor, or a person conducting a running business belonging to the licensor is not a `licensee where the appellant has a retail outlet in a premises either owned or taken on lease by it, where it has installed its specialized equipment/facilities for sale of its products and the outlet is exclusively used for the sale of the products of the appellant, the unit is running business of the appellant. An agent licensed to run the Retail Petroleum outlet of the appellant, which is a running business belonging to the appellant is not therefore a `licensee either under the old Bombay Rent Act (nor under the new MRC Act). Therefore the respondent did not become a tenant under the appellant nor became entitled to protection against eviction. 34. Only those persons who held a licence to occupy any premises as on 1.2.1973 could become deemed tenants under Section 15(A) of the old Bombay Rent Act. As a person conducting a running business on behalf of the owner of such business is not a `licensee as defined under the Rent Act, even if the person concerned was using premises on 1.2.1973, he will not become a deemed tenant. Consequently the respondent could not claim that he became a deemed tenant. Therefore the respondent could not claim the protection of any rent control law as a tenant. One more aspects may be noticed here. If the respondent had become a deemed tenant in 1972, it would not have entered into an agreement on 1.7.1995 reiterating that it continue to be a licensee and that it does not have any leasehold or tenancy rights in the premises. In view of the above, it is not necessary to consider the alternative contention of the appellant that even if the respondent had become a deemed tenant in pursuance of the agreement dated 1.4.1972, such a tenancy come to an end and the appellant again become licensee pure and simple from 1.12.1995 when the fresh agreement was entered, does not require to be considered. Conclusion 35.
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1
### Explanation:
time to time. The manipulation in the dispensing unit effected by the respondent had led to the issuance of the show cause notice. The respondent had rushed to the Court of Small Causes even before the reply of the respondent could be considered by the appellant. By seeking an injunction in the Court of Small Causes, the respondent had restrained the appellant from taking any decision on the show cause notice, which decision the appellant has now taken after the impugned order was passed by the Learned Single Judge in Writ Petition No. 8130 of 2008, who has held that the civil action initiated by the respondent could not prevent the appellant from taking action in accordance with due process of law. That is why now the appellant has determined the respondents licence by their letter dated 19.3.2009 and according to them that is sufficient compliance of the requirement of due process of law. According to the appellant, with this determination of agency, the action in accordance with the due process of law is complete and they can take the possession of the RPO, if required forcibly. According to them the emphasis of the Learned Single Judge on following the due process under the Public Premises Act was erroneous.It is true that in Southern Roadways Limited (supra) this Court did observe in paragraph 22 that the possession of the respondent in that case was on behalf of the company and not on his own right. And therefore, it was not necessary for the company to file a suit for the recovery of possession. Those observations will have to be read as laying down the law in the fact situation which emerged in that case and would apply to similar situations. The issue with respect to the premises of a Public Corporation did not arise in that matter. Besides, in the facts of the case before us, amongst others the respondent had raised the issue with respect to the nature of his licence to remain on the premises, and had also sought the protection which was available to the licencee in occupation of the premises prior to 1.2.1973. Whether the respondent was right in that contention or not is not for this Court to determine. It is for the appropriate authority to decide. That is the minimum opportunity which will be required to be provided to the respondent in the facts of the present case, when he is in occupation of the concerned premises for nearly 40 years. It is also relevant to note that even on the footing of being an agent, apart from the right to receive the compensation in a situation which could be placed under Section 205 of the Contract Act, the agent also has the right to remain on the property of the principal under Section 221 of the Contract Act, for the reliefs which are available under that section if he makes out such a case. It is another matter that as stated above the respondent has placed his case on a higher pedestal, but even on the basis that he is a mere agent, he does have certain rights under Sections 205 and 221 of the Contract Act, and para 13 of Southern Roadways Limited (supra) specifically recognizes that. This being the position it cannot be said that the respondent does not deserve even an opportunity of being heard. What are the relevant terms of the agreement between the parties, what is their true connotation and what order could be obtained by the appellant against the respondent, or what relief at the highest the respondent would be entitled to, will have be considered and decided before an appropriate forum.36. It is also relevant to note that all throughout the respondent has contended that respondent has been in exclusive possession of the premises concerned, and all the employees on the premises are that of the respondent. Even in the first suit filed in the court of small causes, respondent has pointed out that there was a problem with respect to the dispensing unit once in the past in year 2002, and in consultation with the petitioner the respondent took corrective measures. The reports all throughout thereafter have been satisfactory and the respondent has relied upon a voluminous correspondence in that behalf in paragraphs 33 to 60 of the plaint filed in the court of small causes. In the third suit bearing No. 706 of 2009 challenging the termination of the licence filed in the City Civil Court Mumbai, the respondent has specifically pleaded in paragraph 69 that the termination was without any reasons and was contrary to public policy, and was violative of Article 14 of the Constitution of India. In paragraph 77, respondent has specifically submitted that a technical fault in the machine cannot amount to manipulation and that apart it was not a case of adulteration. All these submissions of the respondent require a determination. An opportunity of being heard is something minimum in the circumstances. The proceedings before the authority under the Public Premises Act is an expeditious proceeding and that is something minimum in the circumstances. A Public Corporation from which a higher standard is expected, cannot refuse to follow this much minimum due process of law.37. In the circumstances we have no reason to interfere with the order passed by the Learned Single Judge. We, however, make it clear that the observations made above are for the purposes of deciding the correctness or otherwise of the impugned order passed by the Learned Single Judge and not on the merit of the rival claims. We make it very clear that in the event the appellant takes the steps under the Public Premises Act, it will be open to the respondent to plead their case before the competent authority on all counts, though it will also be open to the competent authority concerned to take its own decision on the merits of the rival contention on facts as well as on law.
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Kantendra Jaymukhlal Majumdar Vs. Collector of Baroda & Another | land is to be released from requisition, the State Government may, after making such enquiry as it deems fit specify by order in writing the person to whom possession of the land shall be given and sub-s. (4) states that the delivery of possession of the land to such person shall be a full discharge of the State Government from all liability in respect of such delivery but shall not prejudice any rights in respect of the land which any other person may be entitled by due process of law to enforce against the person to whom possession of the land is so delivered. Sub-section (6) provides that in certain circumstances possession would be deemed to have been delivered on a certain date to the person entitled to possession thereof and that the State Government shall not be liable for any compensation or other claim in respect of the land for any period after the said date, and sub-s. (7) provides that for the purpose of releasing any land from requisition, the State Government may by order direct the person to whom the State Government had given possession of such land and other person, if any, in occupation of such land, to deliver possession thereof to the officer authorised in that behalf by the State Government. Section 11 provides that any officer authorised in that behalf by the State Government by a general or special order may take possession of any land in respect of which an order has been made under S. 5 or S. 6 or sub-s. 7. of S. 9. 9. Now, the Government of Bombay directed, in the exercise of powers conferred under S. 15 of the Act, by notification, dated August 5, 1950, that the powers conferred and duties imposed upon the State Government by the sections specified therein including Ss. 5, 6 and sub-s. (1), (3), (5) and 7. of S. 9 and 11, shall also be exercised or discharged by the Collectors mentioned in the notification within the limits of their respective jurisdictions. The Collector of Baroda first issued a notification on March 29, 1951 in the exercise of powers conferred by sub-s. (1) of S. 6 of the Act specifying the area within the limits of the Baroda Municipal Borough as the area for the purpose of the said sub-s. (1). The Collector of Baroda requisitioned the premises in December 1953 and allotted it to the appellant. 10. The Collector, by another notification, dated April 13, 1954, withdrew the areas specified in the schedule to that order from the operation of S. 6 of the Act. The area mentioned in the schedule does not cover the area in which the premises in suit are situate. It follows that the original notification of March 29, 1951, continued to apply to the area where the premises in dispute were situate. 11. The Collector issued another notification on December 26, 1959, specifying the area within the limits of the Baroda Municipal Borough to be the area for the purposes of the said sub-s. (1). This notification, in a way was a duplication so far as the areas which had not been excluded by the Notification of April 13, 1954. The Government rescinded the Collectors order, dated December 26, 1959 by its order, dated December 5, 1961. In the context of the various notifications, the rescinding of the Collectors order, dated December 26, 1959, does not affect the application of sub-s. (1) of S. 6 to the area in which the premises in suit are situate and even if it be held otherwise, that would simply debar the Collector from taking any further action under S. 6 of the Act, but will not have the result of releasing from requisition premises which had been lawfully requisitioned prior to this order of Government. 12. In view of S. 9 of the Act, it was the duty of the Collector, on derequisitioning the premises, to restore them to the landlord in the condition in which he had taken in possession. He took vacant possession from the landlord and therefore had to deliver vacant possession to him. Sub-section (3) and 7. of S. 9 specially provide for specifying in the order of de-requisitioning, the person to whom possession of the land be given and such person can be the person from whom possession had been obtained by Government or some officer of Government specified therefor. It was, therefore, essential for the Collector to order by his order of de-requisitioning the premises the vacation of the premises by the appellant and the delivery of possession to respondent No. 2 to whom the Government had to restore possession in order to relieve itself of any further claims to compensation. The contention that the Collector was incompetent to make such an order is not sound. 13. It was not for the collector to consider whether there was any private arrangement between the appellant and the landlord with respect to the tenancy of the premises after the de-requisitioning, and it is rightly conceded that the Collector would not be bound by any such arrangement. Nor can the question of any such arrangement between the two be a matter for decision by the High Court in the exercise of its extraordinary jurisdiction under Art. 226 of the Constitution. There is a different forum for the determination of the rights of the two parties, if any. 14. It was sought to be urged for the appellant that the expression to requisition in S. 4 applies to the taking of possession of land and does not apply to the taking of possession of premises, which, according to the appellant, are not included in the term land as defined in sub-s. (1). It is argued on this basis that the requisition of the premises in suit was not under the Act. No. such question was raised before the High Court and we did not allow learned counsel for the appellant to raise this question in this Court. | 0[ds]12. In view of S. 9 of the Act, it was the duty of the Collector, onderequisitioningthe premises, to restore them to the landlord in the condition in which he had taken in possession. He took vacant possession from the landlord and therefore had to deliver vacant possession to him.n (3) and 7. of S. 9 specially provide for specifying in the order of, the person to whom possession of the land be given and such person can be the person from whom possession had been obtained by Government or some officer of Government specified therefor. It was, therefore, essential for the Collector to order by his order ofderequisitioningthe premises the vacation of the premises by the appellant and the delivery of possession to respondent No. 2 to whom the Government had to restore possession in order to relieve itself of any further claims to compensation. The contention that the Collector was incompetent to make such an order is not sound13. It was not for the collector to consider whether there was any private arrangement between the appellant and the landlord with respect to the tenancy of the premises after the, and it is rightly conceded that the Collector would not be bound by any such arrangement. Nor can the question of any such arrangement between the two be a matter for decision by the High Court in the exercise of its extraordinary jurisdiction under Art. 226 of the Constitution. There is a different forum for the determination of the rights of the two parties, if any14. It was sought to be urged for the appellant that the expression to requisition in S. 4 applies to the taking of possession of land and does not apply to the taking of possession of premises, which, according to the appellant, are not included in the term land as defined in. (1). It is argued on this basis that the requisition of the premises in suit was not under the Act. No. such question was raised before the High Court and we did not allow learned counsel for the appellant to raise this question in this Court. | 0 | 2,026 | 388 | ### 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:
land is to be released from requisition, the State Government may, after making such enquiry as it deems fit specify by order in writing the person to whom possession of the land shall be given and sub-s. (4) states that the delivery of possession of the land to such person shall be a full discharge of the State Government from all liability in respect of such delivery but shall not prejudice any rights in respect of the land which any other person may be entitled by due process of law to enforce against the person to whom possession of the land is so delivered. Sub-section (6) provides that in certain circumstances possession would be deemed to have been delivered on a certain date to the person entitled to possession thereof and that the State Government shall not be liable for any compensation or other claim in respect of the land for any period after the said date, and sub-s. (7) provides that for the purpose of releasing any land from requisition, the State Government may by order direct the person to whom the State Government had given possession of such land and other person, if any, in occupation of such land, to deliver possession thereof to the officer authorised in that behalf by the State Government. Section 11 provides that any officer authorised in that behalf by the State Government by a general or special order may take possession of any land in respect of which an order has been made under S. 5 or S. 6 or sub-s. 7. of S. 9. 9. Now, the Government of Bombay directed, in the exercise of powers conferred under S. 15 of the Act, by notification, dated August 5, 1950, that the powers conferred and duties imposed upon the State Government by the sections specified therein including Ss. 5, 6 and sub-s. (1), (3), (5) and 7. of S. 9 and 11, shall also be exercised or discharged by the Collectors mentioned in the notification within the limits of their respective jurisdictions. The Collector of Baroda first issued a notification on March 29, 1951 in the exercise of powers conferred by sub-s. (1) of S. 6 of the Act specifying the area within the limits of the Baroda Municipal Borough as the area for the purpose of the said sub-s. (1). The Collector of Baroda requisitioned the premises in December 1953 and allotted it to the appellant. 10. The Collector, by another notification, dated April 13, 1954, withdrew the areas specified in the schedule to that order from the operation of S. 6 of the Act. The area mentioned in the schedule does not cover the area in which the premises in suit are situate. It follows that the original notification of March 29, 1951, continued to apply to the area where the premises in dispute were situate. 11. The Collector issued another notification on December 26, 1959, specifying the area within the limits of the Baroda Municipal Borough to be the area for the purposes of the said sub-s. (1). This notification, in a way was a duplication so far as the areas which had not been excluded by the Notification of April 13, 1954. The Government rescinded the Collectors order, dated December 26, 1959 by its order, dated December 5, 1961. In the context of the various notifications, the rescinding of the Collectors order, dated December 26, 1959, does not affect the application of sub-s. (1) of S. 6 to the area in which the premises in suit are situate and even if it be held otherwise, that would simply debar the Collector from taking any further action under S. 6 of the Act, but will not have the result of releasing from requisition premises which had been lawfully requisitioned prior to this order of Government. 12. In view of S. 9 of the Act, it was the duty of the Collector, on derequisitioning the premises, to restore them to the landlord in the condition in which he had taken in possession. He took vacant possession from the landlord and therefore had to deliver vacant possession to him. Sub-section (3) and 7. of S. 9 specially provide for specifying in the order of de-requisitioning, the person to whom possession of the land be given and such person can be the person from whom possession had been obtained by Government or some officer of Government specified therefor. It was, therefore, essential for the Collector to order by his order of de-requisitioning the premises the vacation of the premises by the appellant and the delivery of possession to respondent No. 2 to whom the Government had to restore possession in order to relieve itself of any further claims to compensation. The contention that the Collector was incompetent to make such an order is not sound. 13. It was not for the collector to consider whether there was any private arrangement between the appellant and the landlord with respect to the tenancy of the premises after the de-requisitioning, and it is rightly conceded that the Collector would not be bound by any such arrangement. Nor can the question of any such arrangement between the two be a matter for decision by the High Court in the exercise of its extraordinary jurisdiction under Art. 226 of the Constitution. There is a different forum for the determination of the rights of the two parties, if any. 14. It was sought to be urged for the appellant that the expression to requisition in S. 4 applies to the taking of possession of land and does not apply to the taking of possession of premises, which, according to the appellant, are not included in the term land as defined in sub-s. (1). It is argued on this basis that the requisition of the premises in suit was not under the Act. No. such question was raised before the High Court and we did not allow learned counsel for the appellant to raise this question in this Court.
### Response:
0
### Explanation:
12. In view of S. 9 of the Act, it was the duty of the Collector, onderequisitioningthe premises, to restore them to the landlord in the condition in which he had taken in possession. He took vacant possession from the landlord and therefore had to deliver vacant possession to him.n (3) and 7. of S. 9 specially provide for specifying in the order of, the person to whom possession of the land be given and such person can be the person from whom possession had been obtained by Government or some officer of Government specified therefor. It was, therefore, essential for the Collector to order by his order ofderequisitioningthe premises the vacation of the premises by the appellant and the delivery of possession to respondent No. 2 to whom the Government had to restore possession in order to relieve itself of any further claims to compensation. The contention that the Collector was incompetent to make such an order is not sound13. It was not for the collector to consider whether there was any private arrangement between the appellant and the landlord with respect to the tenancy of the premises after the, and it is rightly conceded that the Collector would not be bound by any such arrangement. Nor can the question of any such arrangement between the two be a matter for decision by the High Court in the exercise of its extraordinary jurisdiction under Art. 226 of the Constitution. There is a different forum for the determination of the rights of the two parties, if any14. It was sought to be urged for the appellant that the expression to requisition in S. 4 applies to the taking of possession of land and does not apply to the taking of possession of premises, which, according to the appellant, are not included in the term land as defined in. (1). It is argued on this basis that the requisition of the premises in suit was not under the Act. No. such question was raised before the High Court and we did not allow learned counsel for the appellant to raise this question in this Court.
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Abdullabhai M. Bhagat & Others Vs. Income Tax Officer, Special Circle, Madras | 1935, and the power to tax income was contained in item 54 of List 1 of the Seventh Schedule which was as follows:-"Taxes on income other than agricultural income." Part VII of the Government of India Act, 1935, deals with Finance, Property and Suits and the first chapter deals with Finance. The relevant section which has been relied upon by the petitioners, i.e., S. 138(1) of that Act is that Part which deals with Distribution of Revenues between the Federation and the Federal Units. That section reads:-Section 138(1) "Taxes on income other than agricultural income shall be levied and collected by the Federation,......... Provided that (a) ...... ...... ...... (b) the Federal Legislature may at any time increase the said taxes by a surcharge for Federal purposes and the whole proceeds of any such surcharge shall form part of the revenues of the Federation." It was submitted that according to this section the power of the Federal Legislature to impose a surcharge was only for Federal purposes; that by S. 8(1) of the Finance Act, 1942, and similar provisions in the other Finance Acts of the three following years, the surcharge had been levied "for the purposes of the Central Government" and that the terms "the purposes of the Central Government" and "for Federal purposes were not the same but were two different concepts. Section 311 of the Government of India Act, 1935, deals with Interpretation but "Federal purposes" is not defined in that section. In sub-sec. (3) of S. 313 which is in Part XIII, dealing with Transitional Provisions, it is provided:- Section 313(3) "References in the provisions of this Act for the time being in force to the Governor-General and the Federal Government shall, except as respects matters with respect to which the Governor-General is required by the said provisions to act in his discretion be construed as references to the Governor-General in Council, and any reference to the Federation, except where the reference is to the establishment of the Federation, shall be construed as a reference to British India, the Governor-General in Council, or the Governor-General, as the circumstances and the context may require." On the basis of this section it was argued that the term "Federal purposes" in S. 138 (1) (b) of the Government of India Act, 1935, means the purposes of the Federal Government, i.e., of the Governor-General in Council or the Governor-General as the case may be and that in the context it is a term of lesser amplitude than the term "purposes of the Central Government". "Central Government" in S. 3(8ab)(a) of the General Clauses Act, 1897, was defined as follows:- Section 3 (8ab) "General Government shall- (a) in relation to anything done or to be done after the commencement of Part III of the Government of India Act, 1935, mean the Federal Government;"."Federal Government" was defined in the General Clauses Act in S. 18a as follows:- Section 18A "Federal Government shall- (a) in relation to anything done or to be done after the commencement of Part III of the Government of India Act, 1935, but before the establishment of the Federation, mean, as respects matters with respect to which the Governor-General is by and under the provisions of the said Act for the time being in force required to act in his discretion, the Governor-General, and as respects other matters, the Governor-General in Council; and shall include- (i) in relation to functions entrusted under section 124(1) of the said Act to the Government of a Province, the Provincial Government acting within the scope of the authority given to it under that sub-section; and (ii) in relation to the administration of a Chief Commissioners province, the Chief Commissioner acting within the scope of the authority given to him under section 94(3) of the said Act;". From these sections it was argued that the term "Federal Government" in the Government of India Act, 1935, only meant the Governor-General or the Governor-General in Council as the case may be but under the definition in the General Clauses Act the term "Central Government" did not only denote the Governor-General or the Governor-General in Council as the case may be but also included for certain purposes the Provincial Governments acting within the scope of the authority given to them under S. 124(1) of the Government of India Act, 1935. This argument, in our opinion, is wholly fallacious. 4. The power of the Federal Legislature to legislate was conferred by S. 100, sub-ss. (1) and (2). The first sub-section deals with the power of the Federal Legislature to legislate in regard to items contained in the First List which was exclusively within the power of the Federal Legislature. The Federal Legislature therefore had the power to legislate in regard to any subject contained in List I and item 54 relating to taxes on income was in that List. It has been held that the items have to be given the widest possible amplitude. But it was submitted that the power under item 54 howsoever wide it may be is subject to the limitation contained in S. 138(1), proviso (b).Now "Federal purposes" is not defined in the Government of India Act, 1935, nor is it defined in the General Clauses Act. But there is sufficient indication in S. 138 itself that the amounts recovered as surcharge were to form part of the Revenues of the Federation and such Revenues were to be expended for the purposes there indicated. Under S. 124(4) of the Government of India Act, 1935, where powers and duties are conferred by S. 124 upon a Province or a Federated State there shall be paid by the Federation to the Province or the Federated State such sum as may be agreed...........Hence by the definitions given in the General Clauses Act no different concept of the words "purposes of the Central Government" was intended from what was intended by the use of the words "Federal purposes" in S. 138(1)(b) of the Government of India Act, 1935. | 0[ds]4. The power of the Federal Legislature to legislate was conferred by S. 100, sub-ss. (1) and (2). The first sub-section deals with the power of the Federal Legislature to legislate in regard to items contained in the First List which was exclusively within the power of the Federal Legislature. The Federal Legislature therefore had the power to legislate in regard to any subject contained in List I and item 54 relating to taxes on income was in that List. It has been held that the items have to be given the widest possible amplitude. But it was submitted that the power under item 54 howsoever wide it may be is subject to the limitation contained in S. 138(1), proviso (b).Now "Federal purposes" is not defined inthe Government of India Act,, nor is it defined in the General Clauses Act. But there is sufficient indication in S. 138 itself that the amounts recovered as surcharge were to form part of the Revenues of the Federation and such Revenues were to be expended for the purposes there indicated. Under S. 124(4) ofthe Government of India Act,, where powers and duties are conferred by S. 124 upon a Province or a Federated State there shall be paid by the Federation to the Province or the Federated State such sum as may be agreed...........Hence by the definitions given in the General Clauses Act no different concept of the words "purposes of the Central Government" was intended from what was intended by the use of the words "Federal purposes" in S. 138(1)(b) ofthe Government of India Act, | 0 | 1,760 | 309 | ### Instruction:
Evaluate the case proceeding to forecast the court's decision (1 for yes, 0 for no), and elucidate the reasoning behind this prediction with important textual evidence from the case.
### Input:
1935, and the power to tax income was contained in item 54 of List 1 of the Seventh Schedule which was as follows:-"Taxes on income other than agricultural income." Part VII of the Government of India Act, 1935, deals with Finance, Property and Suits and the first chapter deals with Finance. The relevant section which has been relied upon by the petitioners, i.e., S. 138(1) of that Act is that Part which deals with Distribution of Revenues between the Federation and the Federal Units. That section reads:-Section 138(1) "Taxes on income other than agricultural income shall be levied and collected by the Federation,......... Provided that (a) ...... ...... ...... (b) the Federal Legislature may at any time increase the said taxes by a surcharge for Federal purposes and the whole proceeds of any such surcharge shall form part of the revenues of the Federation." It was submitted that according to this section the power of the Federal Legislature to impose a surcharge was only for Federal purposes; that by S. 8(1) of the Finance Act, 1942, and similar provisions in the other Finance Acts of the three following years, the surcharge had been levied "for the purposes of the Central Government" and that the terms "the purposes of the Central Government" and "for Federal purposes were not the same but were two different concepts. Section 311 of the Government of India Act, 1935, deals with Interpretation but "Federal purposes" is not defined in that section. In sub-sec. (3) of S. 313 which is in Part XIII, dealing with Transitional Provisions, it is provided:- Section 313(3) "References in the provisions of this Act for the time being in force to the Governor-General and the Federal Government shall, except as respects matters with respect to which the Governor-General is required by the said provisions to act in his discretion be construed as references to the Governor-General in Council, and any reference to the Federation, except where the reference is to the establishment of the Federation, shall be construed as a reference to British India, the Governor-General in Council, or the Governor-General, as the circumstances and the context may require." On the basis of this section it was argued that the term "Federal purposes" in S. 138 (1) (b) of the Government of India Act, 1935, means the purposes of the Federal Government, i.e., of the Governor-General in Council or the Governor-General as the case may be and that in the context it is a term of lesser amplitude than the term "purposes of the Central Government". "Central Government" in S. 3(8ab)(a) of the General Clauses Act, 1897, was defined as follows:- Section 3 (8ab) "General Government shall- (a) in relation to anything done or to be done after the commencement of Part III of the Government of India Act, 1935, mean the Federal Government;"."Federal Government" was defined in the General Clauses Act in S. 18a as follows:- Section 18A "Federal Government shall- (a) in relation to anything done or to be done after the commencement of Part III of the Government of India Act, 1935, but before the establishment of the Federation, mean, as respects matters with respect to which the Governor-General is by and under the provisions of the said Act for the time being in force required to act in his discretion, the Governor-General, and as respects other matters, the Governor-General in Council; and shall include- (i) in relation to functions entrusted under section 124(1) of the said Act to the Government of a Province, the Provincial Government acting within the scope of the authority given to it under that sub-section; and (ii) in relation to the administration of a Chief Commissioners province, the Chief Commissioner acting within the scope of the authority given to him under section 94(3) of the said Act;". From these sections it was argued that the term "Federal Government" in the Government of India Act, 1935, only meant the Governor-General or the Governor-General in Council as the case may be but under the definition in the General Clauses Act the term "Central Government" did not only denote the Governor-General or the Governor-General in Council as the case may be but also included for certain purposes the Provincial Governments acting within the scope of the authority given to them under S. 124(1) of the Government of India Act, 1935. This argument, in our opinion, is wholly fallacious. 4. The power of the Federal Legislature to legislate was conferred by S. 100, sub-ss. (1) and (2). The first sub-section deals with the power of the Federal Legislature to legislate in regard to items contained in the First List which was exclusively within the power of the Federal Legislature. The Federal Legislature therefore had the power to legislate in regard to any subject contained in List I and item 54 relating to taxes on income was in that List. It has been held that the items have to be given the widest possible amplitude. But it was submitted that the power under item 54 howsoever wide it may be is subject to the limitation contained in S. 138(1), proviso (b).Now "Federal purposes" is not defined in the Government of India Act, 1935, nor is it defined in the General Clauses Act. But there is sufficient indication in S. 138 itself that the amounts recovered as surcharge were to form part of the Revenues of the Federation and such Revenues were to be expended for the purposes there indicated. Under S. 124(4) of the Government of India Act, 1935, where powers and duties are conferred by S. 124 upon a Province or a Federated State there shall be paid by the Federation to the Province or the Federated State such sum as may be agreed...........Hence by the definitions given in the General Clauses Act no different concept of the words "purposes of the Central Government" was intended from what was intended by the use of the words "Federal purposes" in S. 138(1)(b) of the Government of India Act, 1935.
### Response:
0
### Explanation:
4. The power of the Federal Legislature to legislate was conferred by S. 100, sub-ss. (1) and (2). The first sub-section deals with the power of the Federal Legislature to legislate in regard to items contained in the First List which was exclusively within the power of the Federal Legislature. The Federal Legislature therefore had the power to legislate in regard to any subject contained in List I and item 54 relating to taxes on income was in that List. It has been held that the items have to be given the widest possible amplitude. But it was submitted that the power under item 54 howsoever wide it may be is subject to the limitation contained in S. 138(1), proviso (b).Now "Federal purposes" is not defined inthe Government of India Act,, nor is it defined in the General Clauses Act. But there is sufficient indication in S. 138 itself that the amounts recovered as surcharge were to form part of the Revenues of the Federation and such Revenues were to be expended for the purposes there indicated. Under S. 124(4) ofthe Government of India Act,, where powers and duties are conferred by S. 124 upon a Province or a Federated State there shall be paid by the Federation to the Province or the Federated State such sum as may be agreed...........Hence by the definitions given in the General Clauses Act no different concept of the words "purposes of the Central Government" was intended from what was intended by the use of the words "Federal purposes" in S. 138(1)(b) ofthe Government of India Act,
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LILAVATI KIRTILAL MEHTA MEDICAL TRUST Vs. M/S UNIQUE SHANTI DEVELOPERS | therefore improve the employing entity?s overall productivity. However this is a duty to be shared by all employer organisations and not merely those looking to increase their productivity/profits. This obligation exists irrespective of how much profit or turnover the organization generates in a year, though the degree to which it extends may differ depending upon the financial capacity of the employer. Hence private corporate bodies such as the Appellant trust may engage the services of third parties for the purpose of providing perquisites to their employees. For example, an employer may book flight tickets or train tickets for an employee so as to facilitate their travel in the ordinary course of business. If any negligence occurs resulting in injury to the employee or their property, the airline/railway company cannot disclaim liability on the ground that the activity was carried out for a ‘commercial purpose?. As discussed earlier, if in all such cases the third party service-provider disclaims liability before consumer forums on the ground that the hirer of the service is engaged in trade and commerce, it will open a Pandora?s box wherein the employer as well as the employees will not have any remedy. This would defeat the object of providing a speedy remedy to consumers, as outlined in the provisions of the 1986 Act. Further, setting such a precedent may discourage employers from undertaking to provide any facilities for their employees. Hence, it is necessary to clarify that the provision of such services would not usually be included in the definition of ‘commercial purpose.? 7. To summarize from the above discussion, though a straight- jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial purpose?: (i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose? is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities. (ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity. (iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. (iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self- employment? need not be looked into. 8. Applying these principles to the facts of the present case, we find that there is no direct nexus between the purchase of flats by the Appellant trust and its profit generating activities. The flats were not occupied for undertaking any medical/diagnostic facilities within the hospital but for accommodating the nurses employed by the hospital. Moreover, the flats were being provided to the nurses without any rent. It is not the Respondents? case that the Appellant was generating any surplus from occupying the flats or engaging in buying and selling of flats. It may be the case that provision of comfortable hostel facilities to the nurses, generates a feeling of gratitude and loyalty towards their employer and improves their overall efficiency, which indirectly results in the hospital gaining more repute and therefore generating more income. However, this is a matter of conjecture and there is no direct causal chain which can be drawn between provision of accommodation to hospital employees and increase in the Appellant?s profits. The decision in Kalpavruksha Charitable Trust (supra), relied upon by the Respondents, does not support them inasmuch as it was on a different set of facts. In that case, this Court held that the purchase of CT scan machines by a diagnostic centre would be included within the meaning of ‘commercial purpose?. There is an apparent direct nexus between the purchase of the machines, medical equipment, etc. and the running of a diagnostic centre/hospital. The present case does not involve any such purchase. Further, applying the dominant purpose test, it cannot be said that the provision of such hostel facilities is integral to the Appellant trust?s commercial activities. The paramount object of providing such facilities is to cater to the needs of nurses and combat the challenges faced by those who lack permanent accommodation in the city, so as to recompense the nurses for the pivotal role which they play as co-ordinators and custodians of patients? care. Nurses help in the speedy recovery of patients and are a vital resource for hospitals and medical centres inasmuch as they are the only resource available 24/7 for catering to patients? needs. They are directly involved in all aspects of hospital service quality, be it in the form of monitoring patients? recovery, bedside medication management or assistance with surgeries and other major operations. In some situations they are responsible for performing immediate interventions to prevent medical complications. They are on the frontlines of administering and evaluating treatment, and provide invaluable emotional support as they are best placed to understand the complexities and implications of having a serious illness. Hence the provision of hostel facilities to nurses so as to facilitate better medical care is a positive duty enjoined upon the hospital so as to maintain the beneficial effects of the curative care efforts undertaken by it. Such a duty exists irrespective of the surplus or turnover generated by the hospital, and hence is not even remotely related to the object of earning profits or for any commercial use as envisaged under Section 2(1)(d). 9. Hence we find that the Appellant trust is a ‘consumer? under Section 2(1)(d) of the 1986 Act for the present transaction under consideration. | 1[ds]In the present case, it is not denied that the Appellant has validly taken possession of the flats constructed by Respondent No. 1 and paid consideration for the same, and can therefore be said to have availed of its housing construction services4. Taking into account the material on record and the relevant jurisprudence on this issue, we are of the considered opinion that the purchase of flats by the Appellant for the purpose of providing hostel facilities to the hospital nurses does not qualify as meant for a ‘commercial purpose?. Though the term ‘commercial purpose? as referred to under Section 2(1)(d) has nowhere been defined under the provisions of the 1986 Act, this Court has expounded upon it based on its lateral dictionary meaning in various decisionsApplying these principles to the facts of the present case, we find that there is no direct nexus between the purchase of flats by the Appellant trust and its profit generating activities. The flats were not occupied for undertaking any medical/diagnostic facilities within the hospital but for accommodating the nurses employed by the hospital. Moreover, the flats were being provided to the nurses without any rent. It is not the Respondents? case that the Appellant was generating any surplus from occupying the flats or engaging in buying and selling of flatsIt may be the case that provision of comfortable hostel facilities to the nurses, generates a feeling of gratitude and loyalty towards their employer and improves their overall efficiency, which indirectly results in the hospital gaining more repute and therefore generating more income. However, this is a matter of conjecture and there is no direct causal chain which can be drawn between provision of accommodation to hospital employees and increase in the Appellant?s profitsThe decision in Kalpavruksha Charitable Trust (supra), relied upon by the Respondents, does not support them inasmuch as it was on a different set of factsThe present case does not involve any such purchaseFurther, applying the dominant purpose test, it cannot be said that the provision of such hostel facilities is integral to the Appellant trust?s commercial activities. The paramount object of providing such facilities is to cater to the needs of nurses and combat the challenges faced by those who lack permanent accommodation in the city, so as to recompense the nurses for the pivotal role which they play as co-ordinators and custodians of patients? careNurses help in the speedy recovery of patients and are a vital resource for hospitals and medical centres inasmuch as they are the only resource available 24/7 for catering to patients? needs. They are directly involved in all aspects of hospital service quality, be it in the form of monitoring patients? recovery, bedside medication management or assistance with surgeries and other major operations. In some situations they are responsible for performing immediate interventions to prevent medical complications. They are on the frontlines of administering and evaluating treatment, and provide invaluable emotional support as they are best placed to understand the complexities and implications of having a serious illnessHence the provision of hostel facilities to nurses so as to facilitate better medical care is a positive duty enjoined upon the hospital so as to maintain the beneficial effects of the curative care efforts undertaken by it. Such a duty exists irrespective of the surplus or turnover generated by the hospital, and hence is not even remotely related to the object of earning profits or for any commercial use as envisaged under Section 2(1)(d)9. Hence we find that the Appellant trust is a ‘consumer? under Section 2(1)(d) of the 1986 Act for the present transaction under consideration7. To summarize from the above discussion, though a straight- jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose? is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self- employment? need not be looked intoThe decision in Kalpavruksha Charitable Trust (supra), relied upon by the Respondents, does not support them inasmuch as it was on a different set of. In that case, this Court held that the purchase of CT scan machines by a diagnostic centre would be included within the meaning of ‘commercial purpose?. There is an apparent direct nexus between the purchase of the machines, medical equipment, etc. and the running of a diagnostic centre/hospital.The present case does not involve any such | 1 | 4,684 | 997 | ### 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:
therefore improve the employing entity?s overall productivity. However this is a duty to be shared by all employer organisations and not merely those looking to increase their productivity/profits. This obligation exists irrespective of how much profit or turnover the organization generates in a year, though the degree to which it extends may differ depending upon the financial capacity of the employer. Hence private corporate bodies such as the Appellant trust may engage the services of third parties for the purpose of providing perquisites to their employees. For example, an employer may book flight tickets or train tickets for an employee so as to facilitate their travel in the ordinary course of business. If any negligence occurs resulting in injury to the employee or their property, the airline/railway company cannot disclaim liability on the ground that the activity was carried out for a ‘commercial purpose?. As discussed earlier, if in all such cases the third party service-provider disclaims liability before consumer forums on the ground that the hirer of the service is engaged in trade and commerce, it will open a Pandora?s box wherein the employer as well as the employees will not have any remedy. This would defeat the object of providing a speedy remedy to consumers, as outlined in the provisions of the 1986 Act. Further, setting such a precedent may discourage employers from undertaking to provide any facilities for their employees. Hence, it is necessary to clarify that the provision of such services would not usually be included in the definition of ‘commercial purpose.? 7. To summarize from the above discussion, though a straight- jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial purpose?: (i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose? is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities. (ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity. (iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary. (iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self- employment? need not be looked into. 8. Applying these principles to the facts of the present case, we find that there is no direct nexus between the purchase of flats by the Appellant trust and its profit generating activities. The flats were not occupied for undertaking any medical/diagnostic facilities within the hospital but for accommodating the nurses employed by the hospital. Moreover, the flats were being provided to the nurses without any rent. It is not the Respondents? case that the Appellant was generating any surplus from occupying the flats or engaging in buying and selling of flats. It may be the case that provision of comfortable hostel facilities to the nurses, generates a feeling of gratitude and loyalty towards their employer and improves their overall efficiency, which indirectly results in the hospital gaining more repute and therefore generating more income. However, this is a matter of conjecture and there is no direct causal chain which can be drawn between provision of accommodation to hospital employees and increase in the Appellant?s profits. The decision in Kalpavruksha Charitable Trust (supra), relied upon by the Respondents, does not support them inasmuch as it was on a different set of facts. In that case, this Court held that the purchase of CT scan machines by a diagnostic centre would be included within the meaning of ‘commercial purpose?. There is an apparent direct nexus between the purchase of the machines, medical equipment, etc. and the running of a diagnostic centre/hospital. The present case does not involve any such purchase. Further, applying the dominant purpose test, it cannot be said that the provision of such hostel facilities is integral to the Appellant trust?s commercial activities. The paramount object of providing such facilities is to cater to the needs of nurses and combat the challenges faced by those who lack permanent accommodation in the city, so as to recompense the nurses for the pivotal role which they play as co-ordinators and custodians of patients? care. Nurses help in the speedy recovery of patients and are a vital resource for hospitals and medical centres inasmuch as they are the only resource available 24/7 for catering to patients? needs. They are directly involved in all aspects of hospital service quality, be it in the form of monitoring patients? recovery, bedside medication management or assistance with surgeries and other major operations. In some situations they are responsible for performing immediate interventions to prevent medical complications. They are on the frontlines of administering and evaluating treatment, and provide invaluable emotional support as they are best placed to understand the complexities and implications of having a serious illness. Hence the provision of hostel facilities to nurses so as to facilitate better medical care is a positive duty enjoined upon the hospital so as to maintain the beneficial effects of the curative care efforts undertaken by it. Such a duty exists irrespective of the surplus or turnover generated by the hospital, and hence is not even remotely related to the object of earning profits or for any commercial use as envisaged under Section 2(1)(d). 9. Hence we find that the Appellant trust is a ‘consumer? under Section 2(1)(d) of the 1986 Act for the present transaction under consideration.
### Response:
1
### Explanation:
In the present case, it is not denied that the Appellant has validly taken possession of the flats constructed by Respondent No. 1 and paid consideration for the same, and can therefore be said to have availed of its housing construction services4. Taking into account the material on record and the relevant jurisprudence on this issue, we are of the considered opinion that the purchase of flats by the Appellant for the purpose of providing hostel facilities to the hospital nurses does not qualify as meant for a ‘commercial purpose?. Though the term ‘commercial purpose? as referred to under Section 2(1)(d) has nowhere been defined under the provisions of the 1986 Act, this Court has expounded upon it based on its lateral dictionary meaning in various decisionsApplying these principles to the facts of the present case, we find that there is no direct nexus between the purchase of flats by the Appellant trust and its profit generating activities. The flats were not occupied for undertaking any medical/diagnostic facilities within the hospital but for accommodating the nurses employed by the hospital. Moreover, the flats were being provided to the nurses without any rent. It is not the Respondents? case that the Appellant was generating any surplus from occupying the flats or engaging in buying and selling of flatsIt may be the case that provision of comfortable hostel facilities to the nurses, generates a feeling of gratitude and loyalty towards their employer and improves their overall efficiency, which indirectly results in the hospital gaining more repute and therefore generating more income. However, this is a matter of conjecture and there is no direct causal chain which can be drawn between provision of accommodation to hospital employees and increase in the Appellant?s profitsThe decision in Kalpavruksha Charitable Trust (supra), relied upon by the Respondents, does not support them inasmuch as it was on a different set of factsThe present case does not involve any such purchaseFurther, applying the dominant purpose test, it cannot be said that the provision of such hostel facilities is integral to the Appellant trust?s commercial activities. The paramount object of providing such facilities is to cater to the needs of nurses and combat the challenges faced by those who lack permanent accommodation in the city, so as to recompense the nurses for the pivotal role which they play as co-ordinators and custodians of patients? careNurses help in the speedy recovery of patients and are a vital resource for hospitals and medical centres inasmuch as they are the only resource available 24/7 for catering to patients? needs. They are directly involved in all aspects of hospital service quality, be it in the form of monitoring patients? recovery, bedside medication management or assistance with surgeries and other major operations. In some situations they are responsible for performing immediate interventions to prevent medical complications. They are on the frontlines of administering and evaluating treatment, and provide invaluable emotional support as they are best placed to understand the complexities and implications of having a serious illnessHence the provision of hostel facilities to nurses so as to facilitate better medical care is a positive duty enjoined upon the hospital so as to maintain the beneficial effects of the curative care efforts undertaken by it. Such a duty exists irrespective of the surplus or turnover generated by the hospital, and hence is not even remotely related to the object of earning profits or for any commercial use as envisaged under Section 2(1)(d)9. Hence we find that the Appellant trust is a ‘consumer? under Section 2(1)(d) of the 1986 Act for the present transaction under consideration7. To summarize from the above discussion, though a straight- jacket formula cannot be adopted in every case, the following broad principles can be culled out for determining whether an activity or transaction is ‘for a commercial(i) The question of whether a transaction is for a commercial purpose would depend upon the facts and circumstances of each case. However, ordinarily, ‘commercial purpose? is understood to include manufacturing/industrial activity or business-to-business transactions between commercial entities(ii) The purchase of the good or service should have a close and direct nexus with a profit-generating activity(iii) The identity of the person making the purchase or the value of the transaction is not conclusive to the question of whether it is for a commercial purpose. It has to be seen whether the dominant intention or dominant purpose for the transaction was to facilitate some kind of profit generation for the purchaser and/or their beneficiary(iv) If it is found that the dominant purpose behind purchasing the good or service was for the personal use and consumption of the purchaser and/or their beneficiary, or is otherwise not linked to any commercial activity, the question of whether such a purchase was for the purpose of ‘generating livelihood by means of self- employment? need not be looked intoThe decision in Kalpavruksha Charitable Trust (supra), relied upon by the Respondents, does not support them inasmuch as it was on a different set of. In that case, this Court held that the purchase of CT scan machines by a diagnostic centre would be included within the meaning of ‘commercial purpose?. There is an apparent direct nexus between the purchase of the machines, medical equipment, etc. and the running of a diagnostic centre/hospital.The present case does not involve any such
|
Essar Bulk Terminal Limited & Another Vs. State of Gujarat & Others | to the above, the following points may please be seen:(1)- (3) xxx xxx xxx(4) ESSAR has submitted details vide letter dated 7th April, 2015 of various proposals to GMB for development of waterfront and back-up area from time to time. GMB as a regulatory authority scrutinizes every proposal and submits to Govt. for necessary approval. It is to be noted that GMB granted NOC for dumping dredge material in mudflat area at Magdalla to ESSAR vide letter dated 14th June, 2007 (Annexure 5) with a condition that the ownership of reclaimed land shall vest with GMB/GOG (Condition No.7) and ESSAR shall not claim reimbursement for any expenditure, incurred for this reclamation (Condition No 8).” 21. A perusal of the objections of Essar and the comments offered by the GMB would show that, first and foremost, actual steel production at the plant is way below capacity, with no firm or definite plans for augmentation. In fact, in the GMB’s affidavit filed in the High Court, it is stated that only 30% of the total capacity of cargo sought to be projected by the Appellants from 2011 onwards was, in fact, being handled by the Appellants. Also, it was noted that the reclaimed land will be of the ownership of either the Government or the GMB, and, that it is beneficial to the company, as otherwise the dredged material would have to be dumped in the sea which would have been very expensive. However, Shri Joshi referred us to a statement, made in a rejoinder affidavit by the Appellants in the High Court, to the effect that the cost of dumping dredged material to reclaim land was at least twice as much as the cost of dumping the dredged material in the sea. This bald averment made in an affidavit, without any supporting material, cannot be accepted at its face value. The answer to objection 3 is again of great importance, in that the GMB was alive to the fact that Essar is really attempting to convert its captive jetty into a commercial port, without entering into any bidding process, contrary to the Gujarat Infrastructure Development Act. Further, in answer to objection 8, the GMB states that the jetty is 1598 meters long with the further 1100 meters which the Government has approved for a capacity of 25 MMTPA, against which Essar has handled only 10 million metric tonnes of cargo in the year 2014-15. 22. At this point it is also important to note that the GMB’s affidavit filed in the High Court also specifically states that the reclaiming of 334 hectares of land by dredging the channel to 14 meters’ depth was never approved by the GMB. Thus, the argument that the area of 170 hectares and 164 hectares of reclaimed land, which the altered limits of the port has been said to impinge upon, has no legs to stand, in view of the fact that no prior permission has been taken under Section 35 of the Gujarat Maritime Board Act to add reclaimed land to the main land, as has been stated hereinabove. Added to this, the area of 195 hectares that has been reclaimed is allocated to the Appellants for their own use – 140 hectares immediately and the balance only after approval and construction of the further elongated jetty. It is clear that even if the Appellants’ plea were to be accepted, the alteration of the limits of the port cannot possibly be said to affect the Appellants’ rights qua reclaimed land, which has been reclaimed illegally i.e. without prior permission under the Gujarat Maritime Board Act. Thus, the CRZ clearance by the Ministry of Environment and Forests dated 6th May, 2014 for reclamation of 334 hectares of land does not further the Appellants’ case in any way.23. We now come to the Appellants’ argument of the haste that is shown by the GMB in recommending the second proposal for altered limits. True, the GMB did act within 4 days of the said proposal, but this fact, without anything more, to demonstrate mala fides or lack of public interest, cannot possibly hold water. It is also to be noted that Shri Salve’s plea, that 13 berths would require 1011 hectares of adjacent land and that much less land than 1011 hectares has been allocated for the use of a commercial port, has to be accepted.24. The further plea, that the forest land to the north consisting of 300 hectares, having now been acquired in October, 2016, would enure to the benefit of HPPL, would also not take the Appellants’ case any further, as even these 300 hectares would be subsumed within the requirement of 1011 hectares, as has been pointed out, in the DPR of 2010.25. There can be no doubt that Shri Joshi’s plea that the power of the Government to alter the limits of any port under Section 5(1) of the Indian Ports Act must be done only in public interest is correct. However, it has not been shown to us as to how the impugned notification is contrary to public interest. The affidavits filed in the High Court, by the State Government and the GMB, show that a commercial port’s limits were altered in public interest because the number of vessels at Hazira port were expected to increase dramatically and it was, therefore, necessary to make adequate facilities not only for anchorage of such vessels, but also for reasons of customs formalities, port conversion, general security etc. We are not, therefore, satisfied that the notification is ultra vires Section 5 of the Indian Ports Act. We have already seen that the Appellants have no ‘right’ to private property in view of the fact that the ownership of the captive jetty that has been constructed and the ownership of reclaimed land is with the GMB/State Government. For this reason also, the notification is intra vires as the alteration in the limits of Hazira Port does not affect any ‘right’ of the Appellants to private property. | 0[ds]15. By their letter dated 15th October, 2008, the Appellants asked the GMB to allow them to dredge the channel from 8 meters depth to 10 meters depth to accommodate capesize vessels of 105,000 DWT. Since material dredged from the channel would have to be dumped, an additional area of 316 hectares, towards the south of the mangroves, to dump the material and reclaim the said area was applied for. No such permission was granted by the GMB to go from a depth of 8 meters to 10 meters or to reclaim any area to the south of the mangroves. Shri Mihir Joshi, however, pointed out a completion certificate dated 11th February, 2010, in which it was mentioned that the width and depth of the channel is being increased to 300 meters and 10 meters below CD respectively inHowever, this would clearly not amount to permission for the same, as all that was stated in the completion certificate was a reference to a deep water berth of 8 meters depth below CD, the 10 meters depth being something which may be increased in future.16.Despite this, what is clear from the record is that the Appellants appear to have actually dredged the channel to a depth of 14 meters and appear to have reclaimed an area of 164 hectares plus 170 hectares to the south of the mangroves, without any permission at all. When this was pointed out to Shri Mihir Joshi, the answer given was that when permission is granted under Section 35(1) of the Gujarat Maritime Board Act, a letter granting such permission specifically says that it is permission that is granted under Section 35(1) and for this purpose, a letter dated 2nd August, 2008 was referred to. According to him, therefore, the letter dated 14th June, 2007, which referred only to an NOC for reclamation, could not be given the status of permission under Section 35(1). According to the learned counsel, therefore, if Section 35(1) were to be read with Section 35(2), it would be clear that permission for reclamation would only be necessary if a private asset were to be created in the hands of a private person. However, it is clear that the asset to be created belonged only to the Government of Gujarat and it was for the GMB to grant permission to the Appellants to use the same.We are afraid that it is difficult for us to accept this line of argument. Section 35(1) is couched in negative language and does not refer to private rights being created. Section 35(2) cannot be read so as to throw light on Section 35(1), as under Section 35(2), the GMB is only given a discretionary power to require a person, who has acted in contravention of Section 35(1), to remove the illegal erection. The wide language of Section 35(1) cannot be whittled down by Section 35(2) in the manner argued by Shri Joshi, as the GMB may or may not utilise the discretionary power granted to it under Section 35(2). The plain language of Section 35(1) cannot be curtailed by reading by inference, into(2), the fact that the GMB may, by notice, require a person to remove an erection, only when it has been made without previous permission, so as to create a private asset in the hands of a private person. The wide language of Section 35(1) makes it clear that any reclamation within the limits of the GMB cannot be carried out except with the previous permission in writing of the GMB. It is clear, therefore, that dredging to a depth of below 8 meters and reclamation of any area to the south of the mangroves was done by the Appellants in the teeth of Section 35(1) of the Gujarat Maritime Board Act.17.Mr. Sibal laid great stress on the letter dated 15th November, 2012 to show that, in point of fact, what the Appellants were really angling for was to conduct commercial operations beyond the captive requirements of the Essar Steel plant at Hazira.This letter, while asking for an addition of 3700 meters in addition to the existing 1100 meters waterfront, also went on to speak of developing a 700 meters berth, along with the GMB, for handling commercial cargo. Apart from this, Essar planned to build a world class container terminal and a dry dock, which would serve the shipping industry generally. It also proposed to reclaim a further 334 hectares land on the southern side with the additional dredged material. A perusal of this letter would leave no doubt about the fact that despite Essarproduction being at much less than what was projected, thecontinued demands would show that the real motive was to go beyond a captive jetty and to develop a commercial port which, as we have seen, cannot be done without a global tender under the Gujarat Infrastructure Development Act.18. As stated hereinabove, as many as three MOUs were executed between the Appellants, the GMB and the State Government, which MOUs were valid only for a period of 12 months and were stated not to have granted any right to the Appellants, who would incur all the expenditure for the same. This being the case, it is a little difficult to appreciate Shricontention that any legitimate expectation could be based on any of the aforesaid expired MOUs. The High Court is correct in its conclusion that no such expectation could possibly have arisen out of the aforesaid MOUs or the correspondence between the Appellants and the GMB referred to.19. It is also important to note from the correspondence between the Appellants and the GMB, that the Appellants were clearly told that the land to be reclaimed by the Appellants would not only belong to the Government of Gujarat, but also that the GMB could utilize the aforesaid land for any purpose. What seems to emerge on a reading of the letters between the parties is that the Appellants wished to dredge the canal, at their own cost, which was next to their captive jetty, for their own purposes, for which they obtained the necessary permission. However, since dumping of earth, which would emerge as a consequence of dredging, into the open sea would be extremely expensive, it was stated that instead this earth could be dumped to create reclaimed land next to the captive jetty, which would then benefit both the Appellants and the GMB. In point of fact, 140 hectares out of 195 hectares that is reclaimed by the Appellants is allocated to the Appellants for their own purposes, the balance to be given as and when a jetty of 1100 meters plus 3700 meters of waterfront is constructed. The argument that huge amounts had been spent to reclaim land is wholly fallacioushuge amounts were spent to dredge a canal which was permitted as the Appellants alone were to bear the cost, and as an increased draft would benefit all, as the canal was open to all to use. Therefore, any plea as to a legitimate expectation of reclaimed land being allocated for theown use, thanks to large amounts being spent, is contrary to the correspondence by the Appellants themselves.A perusal of the objections of Essar and the comments offered by the GMB would show that, first and foremost, actual steel production at the plant is way below capacity, with no firm or definite plans for augmentation. In fact, in theAt this point it is also important to note that theaffidavit filed in the High Court also specifically states that the reclaiming of 334 hectares of land by dredging the channel to 14depth was never approved by the GMB. Thus, the argument that the area of 170 hectares and 164 hectares of reclaimed land, which the altered limits of the port has been said to impinge upon, has no legs to stand, in view of the fact that no prior permission has been taken under Section 35 of the Gujarat Maritime Board Act to add reclaimed land to the main land, as has been stated hereinabove. Added to this, the area of 195 hectares that has been reclaimed is allocated to the Appellants for their own use – 140 hectares immediately and the balance only after approval and construction of the further elongated jetty. It is clear that even if theplea were to be accepted, the alteration of the limits of the port cannot possibly be said to affect therights qua reclaimed land, which has been reclaimed illegally i.e. without prior permission under the Gujarat Maritime Board Act. Thus, the CRZ clearance by the Ministry of Environment and Forests dated 6th May, 2014 for reclamation of 334 hectares of land does not further thecase in any way.23. We now come to theargument of the haste that is shown by the GMB in recommending the second proposal for altered limits. True, the GMB did act within 4 days of the said proposal, but this fact, without anything more, to demonstrate mala fides or lack of public interest, cannot possibly hold water. It is also to be noted that Shriplea, that 13 berths would require 1011 hectares of adjacent land and that much less land than 1011 hectares has been allocated for the use of a commercial port, has to be accepted.24. The further plea, that the forest land to the north consisting of 300 hectares, having now been acquired in October, 2016, would enure to the benefit of HPPL, would also not take thecase any further, as even these 300 hectares would be subsumed within the requirement of 1011 hectares, as has been pointed out, in the DPR of 2010.25. There can be no doubt that Shriplea that the power of the Government to alter the limits of any port under Section 5(1) of the Indian Ports Act must be done only in public interest is correct. However, it has not been shown to us as to how the impugned notification is contrary to public interest. The affidavits filed in the High Court, by the State Government and the GMB, show that a commerciallimits were altered in public interest because the number of vessels at Hazira port were expected to increase dramatically and it was, therefore, necessary to make adequate facilities not only for anchorage of such vessels, but also for reasons of customs formalities, port conversion, general security etc. We are not, therefore, satisfied that the notification is ultra vires Section 5 of the Indian Ports Act. We have already seen that the Appellants have noto private property in view of the fact that the ownership of the captive jetty that has been constructed and the ownership of reclaimed land is with the GMB/State Government. For this reason also, the notification is intra vires as the alteration in the limits of Hazira Port does not affect anyof the Appellants to private property. | 0 | 8,715 | 2,026 | ### Instruction:
Decide if the appeal in the case proceeding is more likely to be successful (1) or unsuccessful (0), and then justify your decision by focusing on essential sentences in the document.
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to the above, the following points may please be seen:(1)- (3) xxx xxx xxx(4) ESSAR has submitted details vide letter dated 7th April, 2015 of various proposals to GMB for development of waterfront and back-up area from time to time. GMB as a regulatory authority scrutinizes every proposal and submits to Govt. for necessary approval. It is to be noted that GMB granted NOC for dumping dredge material in mudflat area at Magdalla to ESSAR vide letter dated 14th June, 2007 (Annexure 5) with a condition that the ownership of reclaimed land shall vest with GMB/GOG (Condition No.7) and ESSAR shall not claim reimbursement for any expenditure, incurred for this reclamation (Condition No 8).” 21. A perusal of the objections of Essar and the comments offered by the GMB would show that, first and foremost, actual steel production at the plant is way below capacity, with no firm or definite plans for augmentation. In fact, in the GMB’s affidavit filed in the High Court, it is stated that only 30% of the total capacity of cargo sought to be projected by the Appellants from 2011 onwards was, in fact, being handled by the Appellants. Also, it was noted that the reclaimed land will be of the ownership of either the Government or the GMB, and, that it is beneficial to the company, as otherwise the dredged material would have to be dumped in the sea which would have been very expensive. However, Shri Joshi referred us to a statement, made in a rejoinder affidavit by the Appellants in the High Court, to the effect that the cost of dumping dredged material to reclaim land was at least twice as much as the cost of dumping the dredged material in the sea. This bald averment made in an affidavit, without any supporting material, cannot be accepted at its face value. The answer to objection 3 is again of great importance, in that the GMB was alive to the fact that Essar is really attempting to convert its captive jetty into a commercial port, without entering into any bidding process, contrary to the Gujarat Infrastructure Development Act. Further, in answer to objection 8, the GMB states that the jetty is 1598 meters long with the further 1100 meters which the Government has approved for a capacity of 25 MMTPA, against which Essar has handled only 10 million metric tonnes of cargo in the year 2014-15. 22. At this point it is also important to note that the GMB’s affidavit filed in the High Court also specifically states that the reclaiming of 334 hectares of land by dredging the channel to 14 meters’ depth was never approved by the GMB. Thus, the argument that the area of 170 hectares and 164 hectares of reclaimed land, which the altered limits of the port has been said to impinge upon, has no legs to stand, in view of the fact that no prior permission has been taken under Section 35 of the Gujarat Maritime Board Act to add reclaimed land to the main land, as has been stated hereinabove. Added to this, the area of 195 hectares that has been reclaimed is allocated to the Appellants for their own use – 140 hectares immediately and the balance only after approval and construction of the further elongated jetty. It is clear that even if the Appellants’ plea were to be accepted, the alteration of the limits of the port cannot possibly be said to affect the Appellants’ rights qua reclaimed land, which has been reclaimed illegally i.e. without prior permission under the Gujarat Maritime Board Act. Thus, the CRZ clearance by the Ministry of Environment and Forests dated 6th May, 2014 for reclamation of 334 hectares of land does not further the Appellants’ case in any way.23. We now come to the Appellants’ argument of the haste that is shown by the GMB in recommending the second proposal for altered limits. True, the GMB did act within 4 days of the said proposal, but this fact, without anything more, to demonstrate mala fides or lack of public interest, cannot possibly hold water. It is also to be noted that Shri Salve’s plea, that 13 berths would require 1011 hectares of adjacent land and that much less land than 1011 hectares has been allocated for the use of a commercial port, has to be accepted.24. The further plea, that the forest land to the north consisting of 300 hectares, having now been acquired in October, 2016, would enure to the benefit of HPPL, would also not take the Appellants’ case any further, as even these 300 hectares would be subsumed within the requirement of 1011 hectares, as has been pointed out, in the DPR of 2010.25. There can be no doubt that Shri Joshi’s plea that the power of the Government to alter the limits of any port under Section 5(1) of the Indian Ports Act must be done only in public interest is correct. However, it has not been shown to us as to how the impugned notification is contrary to public interest. The affidavits filed in the High Court, by the State Government and the GMB, show that a commercial port’s limits were altered in public interest because the number of vessels at Hazira port were expected to increase dramatically and it was, therefore, necessary to make adequate facilities not only for anchorage of such vessels, but also for reasons of customs formalities, port conversion, general security etc. We are not, therefore, satisfied that the notification is ultra vires Section 5 of the Indian Ports Act. We have already seen that the Appellants have no ‘right’ to private property in view of the fact that the ownership of the captive jetty that has been constructed and the ownership of reclaimed land is with the GMB/State Government. For this reason also, the notification is intra vires as the alteration in the limits of Hazira Port does not affect any ‘right’ of the Appellants to private property.
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tender under the Gujarat Infrastructure Development Act.18. As stated hereinabove, as many as three MOUs were executed between the Appellants, the GMB and the State Government, which MOUs were valid only for a period of 12 months and were stated not to have granted any right to the Appellants, who would incur all the expenditure for the same. This being the case, it is a little difficult to appreciate Shricontention that any legitimate expectation could be based on any of the aforesaid expired MOUs. The High Court is correct in its conclusion that no such expectation could possibly have arisen out of the aforesaid MOUs or the correspondence between the Appellants and the GMB referred to.19. It is also important to note from the correspondence between the Appellants and the GMB, that the Appellants were clearly told that the land to be reclaimed by the Appellants would not only belong to the Government of Gujarat, but also that the GMB could utilize the aforesaid land for any purpose. What seems to emerge on a reading of the letters between the parties is that the Appellants wished to dredge the canal, at their own cost, which was next to their captive jetty, for their own purposes, for which they obtained the necessary permission. However, since dumping of earth, which would emerge as a consequence of dredging, into the open sea would be extremely expensive, it was stated that instead this earth could be dumped to create reclaimed land next to the captive jetty, which would then benefit both the Appellants and the GMB. In point of fact, 140 hectares out of 195 hectares that is reclaimed by the Appellants is allocated to the Appellants for their own purposes, the balance to be given as and when a jetty of 1100 meters plus 3700 meters of waterfront is constructed. The argument that huge amounts had been spent to reclaim land is wholly fallacioushuge amounts were spent to dredge a canal which was permitted as the Appellants alone were to bear the cost, and as an increased draft would benefit all, as the canal was open to all to use. Therefore, any plea as to a legitimate expectation of reclaimed land being allocated for theown use, thanks to large amounts being spent, is contrary to the correspondence by the Appellants themselves.A perusal of the objections of Essar and the comments offered by the GMB would show that, first and foremost, actual steel production at the plant is way below capacity, with no firm or definite plans for augmentation. In fact, in theAt this point it is also important to note that theaffidavit filed in the High Court also specifically states that the reclaiming of 334 hectares of land by dredging the channel to 14depth was never approved by the GMB. Thus, the argument that the area of 170 hectares and 164 hectares of reclaimed land, which the altered limits of the port has been said to impinge upon, has no legs to stand, in view of the fact that no prior permission has been taken under Section 35 of the Gujarat Maritime Board Act to add reclaimed land to the main land, as has been stated hereinabove. Added to this, the area of 195 hectares that has been reclaimed is allocated to the Appellants for their own use – 140 hectares immediately and the balance only after approval and construction of the further elongated jetty. It is clear that even if theplea were to be accepted, the alteration of the limits of the port cannot possibly be said to affect therights qua reclaimed land, which has been reclaimed illegally i.e. without prior permission under the Gujarat Maritime Board Act. Thus, the CRZ clearance by the Ministry of Environment and Forests dated 6th May, 2014 for reclamation of 334 hectares of land does not further thecase in any way.23. We now come to theargument of the haste that is shown by the GMB in recommending the second proposal for altered limits. True, the GMB did act within 4 days of the said proposal, but this fact, without anything more, to demonstrate mala fides or lack of public interest, cannot possibly hold water. It is also to be noted that Shriplea, that 13 berths would require 1011 hectares of adjacent land and that much less land than 1011 hectares has been allocated for the use of a commercial port, has to be accepted.24. The further plea, that the forest land to the north consisting of 300 hectares, having now been acquired in October, 2016, would enure to the benefit of HPPL, would also not take thecase any further, as even these 300 hectares would be subsumed within the requirement of 1011 hectares, as has been pointed out, in the DPR of 2010.25. There can be no doubt that Shriplea that the power of the Government to alter the limits of any port under Section 5(1) of the Indian Ports Act must be done only in public interest is correct. However, it has not been shown to us as to how the impugned notification is contrary to public interest. The affidavits filed in the High Court, by the State Government and the GMB, show that a commerciallimits were altered in public interest because the number of vessels at Hazira port were expected to increase dramatically and it was, therefore, necessary to make adequate facilities not only for anchorage of such vessels, but also for reasons of customs formalities, port conversion, general security etc. We are not, therefore, satisfied that the notification is ultra vires Section 5 of the Indian Ports Act. We have already seen that the Appellants have noto private property in view of the fact that the ownership of the captive jetty that has been constructed and the ownership of reclaimed land is with the GMB/State Government. For this reason also, the notification is intra vires as the alteration in the limits of Hazira Port does not affect anyof the Appellants to private property.
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Reliance General Insurance Comp. Ltd Vs. Shashi Sharma | of the deceased employee may receive financial assistance equivalent to the pay and other allowances that was last drawn by the deceased employee in the normal course without raising a specific claim. Sub-rule (2) provides that the family shall be eligible to receive family pension as per the normal Rules only after the period during which they would receive the financial assistance in terms of sub-rule (1). Sub-rule (3) guarantees the family of a deceased Government employee of a Government residence in occupation for a period of one year from the date of death of the employee, upon payment of normal rent/license fee. By virtue of sub-rule (4), an ex-gratia assistance of 25,000/- is provided to the family of the deceased employee to meet the immediate needs on the loss of the bread earner. Sub-rule (5) clarifies that house rent allowance shall not be a part of allowance for the purposes of calculation of assistance. 20. Rule 5 broadly deals with two aspects. Firstly, to compensate the dependents of the deceased Government employee by granting ex-gratia financial assistance on compassionate grounds for the loss of pay and other allowances for a specified period. The second part of Rule 5 is to compensate the dependents of the deceased Government employee by way of allowances and concessions - of retaining occupation of the Government residence on specified terms, of family pension and other allowance. As regards the second part, it deals with income from other source which any way is receivable by the dependants of the deceased Government employee. That cannot be deducted from the claim amount, for determination of a just compensation under the Act of 1988. 21. The claimants are legitimately entitled to claim for the loss of “pay and wages” of the deceased Government employee against the tortfeasor or Insurance Company, as the case may be, covered by the first part of Rule 5 under the Act of 1988. The claimants or dependents of the deceased Government employee (employed by State of Haryana), however, cannot set up a claim for the same subject falling under the first part of Rule 5 - “pay and allowances”, which are receivable by them from employer (State) under Rule 5 (1) of the Rules of 2006. In that, if the deceased employee was to survive the motor accident injury, would have remained in employment and earned his regular pay and allowances. Any other interpretation of the said Rules would inevitably result in double payment towards the same head of loss of “pay and wages” of the deceased Government employee entailing in grant of bonanza, largesse or source of profit to the dependants / claimants. Somewhat similar situation has been spelt out in Section 167 of the Motor Vehicles Act, 1988, which reads thus: “167. Option regarding claims for compensation in certain cases.---Notwithstanding anything contained in the Workmen’s Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen’s Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.” (emphasis supplied) 22. Indeed, similar statutory exclusion of claim receivable under the Rules of 2006 is absent. That, however, does not mean that the Claims Tribunal should remain oblivious to the fact that the claim towards loss of Pay and wages of the deceased has already been or will be compensated by the employer in the form of ex-gratia financial assistance on compassionate grounds under Rule 5 (1). The Claims Tribunal has to adjudicate the claim and determine the amount of compensation which appears to it to be just. The amount receivable by the dependants / claimants towards the head of pay and allowances in the form of ex-gratia financial assistance, therefore, cannot be paid for the second time to the claimants. True it is, that the Rules of 2006 would come into play if the Government employee dies in harness even due to natural death. At the same time, the Rules of 2006 do not expressly enable the dependents of the deceased Government employee to claim similar amount from the tortfeasor or Insurance Company because of the accidental death of the deceased Government employee. The harmonious approach for determining a just compensation payable under the Act of 1988, therefore, is to exclude the amount received or receivable by the dependents of the deceased Government employee under the Rules of 2006 towards the head financial assistance equivalent to “pay and other allowances” that was last drawn by the deceased Government employee in the normal course. This is not to say that the amount or payment receivable by the dependents of the deceased Government employee under Rule 5 (1) of the Rules, is the total entitlement under the head of “loss of income”. So far as the claim towards loss of future escalation of income and other benefits, if the deceased Government employee had survived the accident can still be pursued by them in their claim under the Act of 1988. For, it is not covered by the Rules of 2006. Similarly, other benefits extended to the dependents of the deceased Government employee in terms of sub-rule (2) to sub-rule (5) of Rule 5 including family pension, Life Insurance, Provident Fund etc., that must remain unaffected and cannot be allowed to be deducted, which, any way would be paid to the dependents of the deceased Government employee, applying the principle expounded in Helen C.Rebello and Patricia Jean Mahajan’s cases (supra). 23. A Priori, appellants must succeed only to the extent of amount receivable by the dependents of the deceased Government employee in terms of Rule 5(1) of the Rules 2006, towards financial assistance equivalent to the loss of pay and wages of the deceased employee for the period specified.24. As no other point arises for consideration, the appeals must succeed in part to the extent indicated above. | 1[ds]22. Indeed, similar statutory exclusion of claim receivable under the Rules of 2006 is absent. That, however, does not mean that the Claims Tribunal should remain oblivious to the fact that the claim towards loss of Pay and wages of the deceased has already been or will be compensated by the employer in the form of ex-gratia financial assistance on compassionate grounds under Rule 5 (1). The Claims Tribunal has to adjudicate the claim and determine the amount of compensation which appears to it to be just. The amount receivable by the dependants / claimants towards the head of pay and allowances in the form of ex-gratia financial assistance, therefore, cannot be paid for the second time to the claimants. True it is, that the Rules of 2006 would come into play if the Government employee dies in harness even due to natural death. At the same time, the Rules of 2006 do not expressly enable the dependents of the deceased Government employee to claim similar amount from the tortfeasor or Insurance Company because of the accidental death of the deceased Government employee. The harmonious approach for determining a just compensation payable under the Act of 1988, therefore, is to exclude the amount received or receivable by the dependents of the deceased Government employee under the Rules of 2006 towards the head financial assistance equivalent tothat was last drawn by the deceased Government employee in the normal course. This is not to say that the amount or payment receivable by the dependents of the deceased Government employee under Rule 5 (1) of the Rules, is the total entitlement under the head ofA Priori, appellants must succeed only to the extent of amount receivable by the dependents of the deceased Government employee in terms of Rule 5(1) of the Rules 2006, towards financial assistance equivalent to the loss of pay and wages of the deceased employee for the period specified.24. As no other point arises for consideration, the appeals must succeed in part to the extent indicated above. | 1 | 7,608 | 372 | ### 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:
of the deceased employee may receive financial assistance equivalent to the pay and other allowances that was last drawn by the deceased employee in the normal course without raising a specific claim. Sub-rule (2) provides that the family shall be eligible to receive family pension as per the normal Rules only after the period during which they would receive the financial assistance in terms of sub-rule (1). Sub-rule (3) guarantees the family of a deceased Government employee of a Government residence in occupation for a period of one year from the date of death of the employee, upon payment of normal rent/license fee. By virtue of sub-rule (4), an ex-gratia assistance of 25,000/- is provided to the family of the deceased employee to meet the immediate needs on the loss of the bread earner. Sub-rule (5) clarifies that house rent allowance shall not be a part of allowance for the purposes of calculation of assistance. 20. Rule 5 broadly deals with two aspects. Firstly, to compensate the dependents of the deceased Government employee by granting ex-gratia financial assistance on compassionate grounds for the loss of pay and other allowances for a specified period. The second part of Rule 5 is to compensate the dependents of the deceased Government employee by way of allowances and concessions - of retaining occupation of the Government residence on specified terms, of family pension and other allowance. As regards the second part, it deals with income from other source which any way is receivable by the dependants of the deceased Government employee. That cannot be deducted from the claim amount, for determination of a just compensation under the Act of 1988. 21. The claimants are legitimately entitled to claim for the loss of “pay and wages” of the deceased Government employee against the tortfeasor or Insurance Company, as the case may be, covered by the first part of Rule 5 under the Act of 1988. The claimants or dependents of the deceased Government employee (employed by State of Haryana), however, cannot set up a claim for the same subject falling under the first part of Rule 5 - “pay and allowances”, which are receivable by them from employer (State) under Rule 5 (1) of the Rules of 2006. In that, if the deceased employee was to survive the motor accident injury, would have remained in employment and earned his regular pay and allowances. Any other interpretation of the said Rules would inevitably result in double payment towards the same head of loss of “pay and wages” of the deceased Government employee entailing in grant of bonanza, largesse or source of profit to the dependants / claimants. Somewhat similar situation has been spelt out in Section 167 of the Motor Vehicles Act, 1988, which reads thus: “167. Option regarding claims for compensation in certain cases.---Notwithstanding anything contained in the Workmen’s Compensation Act, 1923 (8 of 1923) where the death of, or bodily injury to, any person gives rise to a claim for compensation under this Act and also under the Workmen’s Compensation Act, 1923, the person entitled to compensation may without prejudice to the provisions of Chapter X claim such compensation under either of those Acts but not under both.” (emphasis supplied) 22. Indeed, similar statutory exclusion of claim receivable under the Rules of 2006 is absent. That, however, does not mean that the Claims Tribunal should remain oblivious to the fact that the claim towards loss of Pay and wages of the deceased has already been or will be compensated by the employer in the form of ex-gratia financial assistance on compassionate grounds under Rule 5 (1). The Claims Tribunal has to adjudicate the claim and determine the amount of compensation which appears to it to be just. The amount receivable by the dependants / claimants towards the head of pay and allowances in the form of ex-gratia financial assistance, therefore, cannot be paid for the second time to the claimants. True it is, that the Rules of 2006 would come into play if the Government employee dies in harness even due to natural death. At the same time, the Rules of 2006 do not expressly enable the dependents of the deceased Government employee to claim similar amount from the tortfeasor or Insurance Company because of the accidental death of the deceased Government employee. The harmonious approach for determining a just compensation payable under the Act of 1988, therefore, is to exclude the amount received or receivable by the dependents of the deceased Government employee under the Rules of 2006 towards the head financial assistance equivalent to “pay and other allowances” that was last drawn by the deceased Government employee in the normal course. This is not to say that the amount or payment receivable by the dependents of the deceased Government employee under Rule 5 (1) of the Rules, is the total entitlement under the head of “loss of income”. So far as the claim towards loss of future escalation of income and other benefits, if the deceased Government employee had survived the accident can still be pursued by them in their claim under the Act of 1988. For, it is not covered by the Rules of 2006. Similarly, other benefits extended to the dependents of the deceased Government employee in terms of sub-rule (2) to sub-rule (5) of Rule 5 including family pension, Life Insurance, Provident Fund etc., that must remain unaffected and cannot be allowed to be deducted, which, any way would be paid to the dependents of the deceased Government employee, applying the principle expounded in Helen C.Rebello and Patricia Jean Mahajan’s cases (supra). 23. A Priori, appellants must succeed only to the extent of amount receivable by the dependents of the deceased Government employee in terms of Rule 5(1) of the Rules 2006, towards financial assistance equivalent to the loss of pay and wages of the deceased employee for the period specified.24. As no other point arises for consideration, the appeals must succeed in part to the extent indicated above.
### Response:
1
### Explanation:
22. Indeed, similar statutory exclusion of claim receivable under the Rules of 2006 is absent. That, however, does not mean that the Claims Tribunal should remain oblivious to the fact that the claim towards loss of Pay and wages of the deceased has already been or will be compensated by the employer in the form of ex-gratia financial assistance on compassionate grounds under Rule 5 (1). The Claims Tribunal has to adjudicate the claim and determine the amount of compensation which appears to it to be just. The amount receivable by the dependants / claimants towards the head of pay and allowances in the form of ex-gratia financial assistance, therefore, cannot be paid for the second time to the claimants. True it is, that the Rules of 2006 would come into play if the Government employee dies in harness even due to natural death. At the same time, the Rules of 2006 do not expressly enable the dependents of the deceased Government employee to claim similar amount from the tortfeasor or Insurance Company because of the accidental death of the deceased Government employee. The harmonious approach for determining a just compensation payable under the Act of 1988, therefore, is to exclude the amount received or receivable by the dependents of the deceased Government employee under the Rules of 2006 towards the head financial assistance equivalent tothat was last drawn by the deceased Government employee in the normal course. This is not to say that the amount or payment receivable by the dependents of the deceased Government employee under Rule 5 (1) of the Rules, is the total entitlement under the head ofA Priori, appellants must succeed only to the extent of amount receivable by the dependents of the deceased Government employee in terms of Rule 5(1) of the Rules 2006, towards financial assistance equivalent to the loss of pay and wages of the deceased employee for the period specified.24. As no other point arises for consideration, the appeals must succeed in part to the extent indicated above.
|
The State Of Rajasthan Vs. Rao Manohar Singhji | the easterly portion of the State , as also to those residing in the City of St. Louis.It was contended that this feature of the judicial system of Missouri was in conflict with the 14th Amendment of the Constitution of the United States. Bradley, J., held that the equality clause in the 14th Amendment contemplates the protection of person against unjust discriminations by a State; it has no reference to territorial or municipal arrangements made for different portions of a State.He went on to say :"If a Mexican State should be acquired by treaty and added to an adjoining State of part of a State, in the United States, and the two should be erected into a new State, it cannot be doubted that such new State might allow the Mexican laws and judicature to continue unchanged in the one portion and the common law and its corresponding judicature in the other portion. Such an arrangement would not be prohibited by any fair construction of the 14th Amendment. It would not be based on any respect of person or classes, but on municipal considerations alone and a regard to the welfare of all classes within the particular territory or jurisdiction".9. This passage which was strongly relied upon by the learned Attorney-General does not advance his case, for the present case, there is no question of continuing unchanged the old laws and judicature in one portion and a different law in the there. As we have already said there is nothing to show that there was any peculiarity or any special feature in the Jagirs of the former State of Rajasthan to justify differentiation from the Jagirs comprised in the States which subsequently integrated into the present United State of Rajasthan. After the new States was formed, there was no occasion to take away the powers of Jagirdars of a disfavoured area and to leave them intact in the rest of the area.10. The case in --- Ramjilal v. Income-tax Officer, Mohindargarh, AIR 1951 S.C. 97 (B), is distinguishable on the ground that that case proceeded upon the principle that"pending proceedings should be concluded according to the law applicable at the time when the rights or liabilities accrued and the proceeding commence was a reasonable law founded upon a reasonable classification of the assessees which is permissible under the equal protection clause."Such is however not the case here.11. Reliance was also placed on the case of ---State of Punjab v. Ajaib Singh, AIR 1953 S.C. 10 (C). In that case the Abducted Persons (Recovery and Restoration) Act of 1949 was not held to be unconstitutional under Article 14 upon the ground that it extended only to the several States mentioned in Section 1(2), for in the opinion of the Court classification could well be made on a geographical basis. There the Muslim abducted persons found in those States were held to form one class having similar interests to protect and their inclusion in the definition of abducted persons could not be called discriminatory.12. The learned Attorney-General referred to two cases decided by the same bench of the Rajasthan High Court, -- Madan Singh v. Collector of Sikar. 1954 R. L. W. 1 (D), and an unreported judgment delivered on 10-11-1953 in --- Raja Hari Singh v. State of Rajasthan, (E) , and argued that the Bench had not stuck to its view expressed in the judgment under appeal. A careful perusal of the judgment in these cases will show that this is far from being the case. The former case was distinguished from the case under appeal on the ground that there was a reasonable basis for classification in that case, while no such basis existed in the case before us.It appears that before Jaipur State merged into the present United State of Rajasthan there were District Boards existing in that State. They were continued on the formation of the new State but there were no District Boards in the other States. The argument that the Jaipur District Boards Act was invalid under Article 14 of the Constitution was repelled, it being held that the existence of District Boards in Jaipur was for the welfare of classes within Jaipur, that Jaipur had reached a higher stage of development than many of the other States and it would have been a retrograde step to deprive the people living in the former Jaipur State of the benefits of Local Self Government conferred by the District Boards Act.Reliance was placed on the observations of Bradley, J., in--- (1880) 101 U. S. 22 (A), in connection with the illustration of the Maxican State and the learned Chief Justice referred with approval to the decision under appeal before us. In the second case the attack was on the alleged discriminatory provision contained in the Mewar Tenancy Act and the Land Revenue Act. Under these Acts the rent rates had been approved by the Board of Revenue and the Government and they were alleged to be detrimental to the interests of the Jagirdars. The Jagirdars had challenged those Acts by a petition under Article 226. It appears that no such laws existed in the other parts of Rajasthan.The decision of the High Court proceeded on the ground that it was not shown that there were no similar Tenancy and Land Revenue laws in other parts of Rajasthan and the impugned Acts being ameliorative legislation designed to raise the economic status of the agriculturists in Mewar could not be said to constitute any discrimination merely because no such legislation existed in the other parts of Rajasthan. This difference between the two parts did not justify that such progressive and ameliorative measures for the welfare of the people existing in a particular area should be done away with the State be brought down to the level of the unprogressive States.The judgment shows that the Bench far from going back on its previous view adhered to it and expressly distinguished the case under appeal before us on it special facts. | 1[ds]Such an obvious discrimination can be supported only on the ground that it was based upon a reasonable classification. It is now well settled by the decision of this court that a proper classification must always bear a reasonable and just relation to the things in respect of which it is proposed. Judged by this criterion it seems to us that the discrimination is based on no classification at all and is manifestly unreasonable and arbitrary. The classification might have been justified if the State had shown that it was based upon a substantial distinction, namely that the Jagirdars of the area subjected to the disability were in some way different to those of the other area of Rajasthan who were not similarly situated.The preambles of the Ordinances do not purport to show that the conditions in the former State of Rajasthan were such as to justify the imposition of the disability on the Jagirdars of that State while the conditions prevailing in the other States forbade such a course.We agree with the High Court in holding that there was no real and substantial distinction why the Jagirdars of a particular area should continue to be treated with inequality as compared with the Jagirdars in another area of Rajasthan. We hold therefore that no rational basis for any classification or differention has been made out. Section 8-A of the impugned Ordinance as amended is a clear contravention of the respondents right under Article 14 of the Constitution and must be declared void. | 1 | 3,138 | 263 | ### 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:
the easterly portion of the State , as also to those residing in the City of St. Louis.It was contended that this feature of the judicial system of Missouri was in conflict with the 14th Amendment of the Constitution of the United States. Bradley, J., held that the equality clause in the 14th Amendment contemplates the protection of person against unjust discriminations by a State; it has no reference to territorial or municipal arrangements made for different portions of a State.He went on to say :"If a Mexican State should be acquired by treaty and added to an adjoining State of part of a State, in the United States, and the two should be erected into a new State, it cannot be doubted that such new State might allow the Mexican laws and judicature to continue unchanged in the one portion and the common law and its corresponding judicature in the other portion. Such an arrangement would not be prohibited by any fair construction of the 14th Amendment. It would not be based on any respect of person or classes, but on municipal considerations alone and a regard to the welfare of all classes within the particular territory or jurisdiction".9. This passage which was strongly relied upon by the learned Attorney-General does not advance his case, for the present case, there is no question of continuing unchanged the old laws and judicature in one portion and a different law in the there. As we have already said there is nothing to show that there was any peculiarity or any special feature in the Jagirs of the former State of Rajasthan to justify differentiation from the Jagirs comprised in the States which subsequently integrated into the present United State of Rajasthan. After the new States was formed, there was no occasion to take away the powers of Jagirdars of a disfavoured area and to leave them intact in the rest of the area.10. The case in --- Ramjilal v. Income-tax Officer, Mohindargarh, AIR 1951 S.C. 97 (B), is distinguishable on the ground that that case proceeded upon the principle that"pending proceedings should be concluded according to the law applicable at the time when the rights or liabilities accrued and the proceeding commence was a reasonable law founded upon a reasonable classification of the assessees which is permissible under the equal protection clause."Such is however not the case here.11. Reliance was also placed on the case of ---State of Punjab v. Ajaib Singh, AIR 1953 S.C. 10 (C). In that case the Abducted Persons (Recovery and Restoration) Act of 1949 was not held to be unconstitutional under Article 14 upon the ground that it extended only to the several States mentioned in Section 1(2), for in the opinion of the Court classification could well be made on a geographical basis. There the Muslim abducted persons found in those States were held to form one class having similar interests to protect and their inclusion in the definition of abducted persons could not be called discriminatory.12. The learned Attorney-General referred to two cases decided by the same bench of the Rajasthan High Court, -- Madan Singh v. Collector of Sikar. 1954 R. L. W. 1 (D), and an unreported judgment delivered on 10-11-1953 in --- Raja Hari Singh v. State of Rajasthan, (E) , and argued that the Bench had not stuck to its view expressed in the judgment under appeal. A careful perusal of the judgment in these cases will show that this is far from being the case. The former case was distinguished from the case under appeal on the ground that there was a reasonable basis for classification in that case, while no such basis existed in the case before us.It appears that before Jaipur State merged into the present United State of Rajasthan there were District Boards existing in that State. They were continued on the formation of the new State but there were no District Boards in the other States. The argument that the Jaipur District Boards Act was invalid under Article 14 of the Constitution was repelled, it being held that the existence of District Boards in Jaipur was for the welfare of classes within Jaipur, that Jaipur had reached a higher stage of development than many of the other States and it would have been a retrograde step to deprive the people living in the former Jaipur State of the benefits of Local Self Government conferred by the District Boards Act.Reliance was placed on the observations of Bradley, J., in--- (1880) 101 U. S. 22 (A), in connection with the illustration of the Maxican State and the learned Chief Justice referred with approval to the decision under appeal before us. In the second case the attack was on the alleged discriminatory provision contained in the Mewar Tenancy Act and the Land Revenue Act. Under these Acts the rent rates had been approved by the Board of Revenue and the Government and they were alleged to be detrimental to the interests of the Jagirdars. The Jagirdars had challenged those Acts by a petition under Article 226. It appears that no such laws existed in the other parts of Rajasthan.The decision of the High Court proceeded on the ground that it was not shown that there were no similar Tenancy and Land Revenue laws in other parts of Rajasthan and the impugned Acts being ameliorative legislation designed to raise the economic status of the agriculturists in Mewar could not be said to constitute any discrimination merely because no such legislation existed in the other parts of Rajasthan. This difference between the two parts did not justify that such progressive and ameliorative measures for the welfare of the people existing in a particular area should be done away with the State be brought down to the level of the unprogressive States.The judgment shows that the Bench far from going back on its previous view adhered to it and expressly distinguished the case under appeal before us on it special facts.
### Response:
1
### Explanation:
Such an obvious discrimination can be supported only on the ground that it was based upon a reasonable classification. It is now well settled by the decision of this court that a proper classification must always bear a reasonable and just relation to the things in respect of which it is proposed. Judged by this criterion it seems to us that the discrimination is based on no classification at all and is manifestly unreasonable and arbitrary. The classification might have been justified if the State had shown that it was based upon a substantial distinction, namely that the Jagirdars of the area subjected to the disability were in some way different to those of the other area of Rajasthan who were not similarly situated.The preambles of the Ordinances do not purport to show that the conditions in the former State of Rajasthan were such as to justify the imposition of the disability on the Jagirdars of that State while the conditions prevailing in the other States forbade such a course.We agree with the High Court in holding that there was no real and substantial distinction why the Jagirdars of a particular area should continue to be treated with inequality as compared with the Jagirdars in another area of Rajasthan. We hold therefore that no rational basis for any classification or differention has been made out. Section 8-A of the impugned Ordinance as amended is a clear contravention of the respondents right under Article 14 of the Constitution and must be declared void.
|
M/s. Electrical Manufacturing Company Ltd Vs. M/s. Power Grid Corporation of India Ltd. & Another | The appellant has alleged that the above refusal by respondent no.1 to award the contract for the above mentioned packages was arbitrary and illegal since the appellants bid was the lowest among all the bidders. 11. Shri Sudhir Chandra, learned senior counsel for the appellant has submitted that the appellant has been denied the contract in question on an erroneous interpretation of Clause 1.1 of Annexure ‘A of the Special Conditions of Contract. The aforesaid Clause 1.1 states: "1.1 Technical ExperienceThe bidder shall have satisfactorily completed as a prime contractor or as a sub-contractor or as a member in a Joint Venture, 345/400 KV Double Circuit or higher voltage class transmission line(s) within the last seven (7) years as on date of bid opening. The bidders experience should include the following:(i) The bidder should have surveyed, optimized tower locations, erected and strung with tension stringing equipment, not less than following cumulative route length of transmission lines of 345/400 KV Double Circuit or higher voltage class involving bundle conductor.Package - A7 : 100 KmsPackage - A8 : 100 Kms" 12. Learned counsel for the appellant submitted that the appellant fully satisfied the requirements mentioned in Clause 1.1 namely that the petitioner has surveyed, optimized tower locations, erected and strung with tension stringing equipment, not less than following cumulative route length of transmission lines of 345/400 KV Double Circuit or higher voltage class involving bundle conductor, which in so far as the petitioner is concerned is 100 Kms. for package A1 and A7 and 200 Kms. for package A8. Hence learned counsel submits that the appellant should have been given the contract in question. 13. On the other hand Shri K.K. Venugopal, learned senior counsel for respondent submitted that sub-clause (i) of Clause 1.1 has to be read along with the main clause 1.1 which stipulates that the bidder should have satisfactorily completed the requisite length of 100 Kms. He submitted that the petitioner has only satisfactorily completed 83 Kms. of transmission line as on 9.1.2008 and therefore, did not fulfill the technical experience required by Clause 1.1. 14. The dispute thus in this case is whether the appellant has the requisite technical experience mentioned in Clause 1.1 of the Special Conditions of Contract. 15. Shri K.K. Venugopal, learned senior counsel for respondent submitted that the appellant has satisfactorily completed only 83 Kms. of transmission lines as on the date of the opening i.e. 8/9.1.2008 instead of the requisite 100 Kms. He submitted that the appellant had in addition laid various incomplete transmissions lines, but these cannot be added to the lines satisfactorily completed because they are incomplete. The chart showing the work done by the appellant is as follows: TABLE 16. A perusal of the above chart shows that the appellant has only satisfactorily completed 83 Kms. of transmissions lines. The line Trivenveli-Udmalet in Tamil Nadu was incomplete because only 134 Kms. out of the total extent of the line of 136 Kms. had been completed by the appellant. Hence this transmission line could not be treated to be satisfactorily completed. Similarly the line Tapp-Kankaroli was also incomplete as it was only laid for 87 Kms. but the entire line had to be 97.3 Kms. 17. Shri Sudhir Chandra, learned senior counsel for the appellant has submitted that the view taken by the High Court that satisfactorily completing the line means commissioning the line is not correct. We are of the opinion that even if satisfactory completion may not necessary mean commissioning of the line but it certainly means completion of the entire length of the line and thereafter testing the line to find out whether it is functioning satisfactorily. Without testing it how can one be sure that it has been completed satisfactorily.18. For instance, if an electrical line is laid inside a persons house, the only way to find out whether the electrical line has been laid satisfactorily is to find out by pressing the switch and seeing whether the bulb in the house is lighted or the fan starts running. Merely putting wires dangling inside the house but which do not light the bulb or turn the fan cannot be said to be satisfactory completion of the electrical line.19. In the present case, as can be seen from the chart set out above the appellant has not completed the lines from Trivenveli to Udmalet nor from Tapp to Kankaroli. Unless the entire line is laid and is found to be functioning satisfactorily, it cannot be said that there was satisfactory completion of the line.20. As regards the interpretation of Clause 1.1 we cannot agree with Shri Sudhir Chandra that the words ‘Satisfactorily Completed would not govern sub clause (i) of Clause 1.1. A fair reading of the entire Clause 1.1 along with sub clause (i) clearly indicates that the requisite technical experience requires satisfactorily completion of the requisite length of the line. Sub clause (i) is a part of Clause 1.1 and hence mere surveyance, optimizing tower locations, erecting and stringing with tension stringing equipment, etc. is not sufficient to give the requisite technical experience to the bidder unless such work was satisfactorily completed, which means that it was tested and found to be functioning satisfactorily.21. If the bidder has surveyed, optimized tower locations, erected and strung with tension stringing equipment, the requisite length of transmission lines, but these transmission lines do not function, surely it cannot be said there was satisfactory completion of these transmission lines. In our opinion the expression ‘Satisfactory Completion govern sub clause (i) of Clause 1.1 also. Hence mere surveying, optimizing tower locations, erecting and stringing with tension stringing equipment the requisite length of transmission lines will not be enough to give the necessary technical experience because it is possible that even after doing the above work the transmission lines may not function. Unless after doing the above works the line is tested and found to be successfully functioning it surely cannot be said that there was satisfactory completion of the transmission lines. | 0[ds]We are of the opinion that even if satisfactory completion may not necessary mean commissioning of the line but it certainly means completion of the entire length of the line and thereafter testing the line to find out whether it is functioning satisfactorily. Without testing it how can one be sure that it has been completed satisfactorily.18. For instance, if an electrical line is laid inside a persons house, the only way to find out whether the electrical line has been laid satisfactorily is to find out by pressing the switch and seeing whether the bulb in the house is lighted or the fan starts running. Merely putting wires dangling inside the house but which do not light the bulb or turn the fan cannot be said to be satisfactory completion of the electrical line.19. In the present case, as can be seen from the chart set out above the appellant has not completed the lines from Trivenveli to Udmalet nor from Tapp to Kankaroli. Unless the entire line is laid and is found to be functioning satisfactorily, it cannot be said that there was satisfactory completion of the line.20. As regards the interpretation of Clause 1.1 we cannot agree with Shri Sudhir Chandra that the words ‘Satisfactorily Completed would not govern sub clause (i) of Clause 1.1. A fair reading of the entire Clause 1.1 along with sub clause (i) clearly indicates that the requisite technical experience requires satisfactorily completion of the requisite length of the line. Sub clause (i) is a part of Clause 1.1 and hence mere surveyance, optimizing tower locations, erecting and stringing with tension stringing equipment, etc. is not sufficient to give the requisite technical experience to the bidder unless such work was satisfactorily completed, which means that it was tested and found to be functioning satisfactorily.21. If the bidder has surveyed, optimized tower locations, erected and strung with tension stringing equipment, the requisite length of transmission lines, but these transmission lines do not function, surely it cannot be said there was satisfactory completion of these transmission lines. In our opinion the expression ‘Satisfactory Completion govern sub clause (i) of Clause 1.1 also. Hence mere surveying, optimizing tower locations, erecting and stringing with tension stringing equipment the requisite length of transmission lines will not be enough to give the necessary technical experience because it is possible that even after doing the above work the transmission lines may not function. Unless after doing the above works the line is tested and found to be successfully functioning it surely cannot be said that there was satisfactory completion of the transmission lines. | 0 | 1,555 | 482 | ### Instruction:
Estimate the outcome of the case (positive (1) or negative (0) for the appellant) and then give a reasoned explanation by examining important sentences within the case documentation.
### Input:
The appellant has alleged that the above refusal by respondent no.1 to award the contract for the above mentioned packages was arbitrary and illegal since the appellants bid was the lowest among all the bidders. 11. Shri Sudhir Chandra, learned senior counsel for the appellant has submitted that the appellant has been denied the contract in question on an erroneous interpretation of Clause 1.1 of Annexure ‘A of the Special Conditions of Contract. The aforesaid Clause 1.1 states: "1.1 Technical ExperienceThe bidder shall have satisfactorily completed as a prime contractor or as a sub-contractor or as a member in a Joint Venture, 345/400 KV Double Circuit or higher voltage class transmission line(s) within the last seven (7) years as on date of bid opening. The bidders experience should include the following:(i) The bidder should have surveyed, optimized tower locations, erected and strung with tension stringing equipment, not less than following cumulative route length of transmission lines of 345/400 KV Double Circuit or higher voltage class involving bundle conductor.Package - A7 : 100 KmsPackage - A8 : 100 Kms" 12. Learned counsel for the appellant submitted that the appellant fully satisfied the requirements mentioned in Clause 1.1 namely that the petitioner has surveyed, optimized tower locations, erected and strung with tension stringing equipment, not less than following cumulative route length of transmission lines of 345/400 KV Double Circuit or higher voltage class involving bundle conductor, which in so far as the petitioner is concerned is 100 Kms. for package A1 and A7 and 200 Kms. for package A8. Hence learned counsel submits that the appellant should have been given the contract in question. 13. On the other hand Shri K.K. Venugopal, learned senior counsel for respondent submitted that sub-clause (i) of Clause 1.1 has to be read along with the main clause 1.1 which stipulates that the bidder should have satisfactorily completed the requisite length of 100 Kms. He submitted that the petitioner has only satisfactorily completed 83 Kms. of transmission line as on 9.1.2008 and therefore, did not fulfill the technical experience required by Clause 1.1. 14. The dispute thus in this case is whether the appellant has the requisite technical experience mentioned in Clause 1.1 of the Special Conditions of Contract. 15. Shri K.K. Venugopal, learned senior counsel for respondent submitted that the appellant has satisfactorily completed only 83 Kms. of transmission lines as on the date of the opening i.e. 8/9.1.2008 instead of the requisite 100 Kms. He submitted that the appellant had in addition laid various incomplete transmissions lines, but these cannot be added to the lines satisfactorily completed because they are incomplete. The chart showing the work done by the appellant is as follows: TABLE 16. A perusal of the above chart shows that the appellant has only satisfactorily completed 83 Kms. of transmissions lines. The line Trivenveli-Udmalet in Tamil Nadu was incomplete because only 134 Kms. out of the total extent of the line of 136 Kms. had been completed by the appellant. Hence this transmission line could not be treated to be satisfactorily completed. Similarly the line Tapp-Kankaroli was also incomplete as it was only laid for 87 Kms. but the entire line had to be 97.3 Kms. 17. Shri Sudhir Chandra, learned senior counsel for the appellant has submitted that the view taken by the High Court that satisfactorily completing the line means commissioning the line is not correct. We are of the opinion that even if satisfactory completion may not necessary mean commissioning of the line but it certainly means completion of the entire length of the line and thereafter testing the line to find out whether it is functioning satisfactorily. Without testing it how can one be sure that it has been completed satisfactorily.18. For instance, if an electrical line is laid inside a persons house, the only way to find out whether the electrical line has been laid satisfactorily is to find out by pressing the switch and seeing whether the bulb in the house is lighted or the fan starts running. Merely putting wires dangling inside the house but which do not light the bulb or turn the fan cannot be said to be satisfactory completion of the electrical line.19. In the present case, as can be seen from the chart set out above the appellant has not completed the lines from Trivenveli to Udmalet nor from Tapp to Kankaroli. Unless the entire line is laid and is found to be functioning satisfactorily, it cannot be said that there was satisfactory completion of the line.20. As regards the interpretation of Clause 1.1 we cannot agree with Shri Sudhir Chandra that the words ‘Satisfactorily Completed would not govern sub clause (i) of Clause 1.1. A fair reading of the entire Clause 1.1 along with sub clause (i) clearly indicates that the requisite technical experience requires satisfactorily completion of the requisite length of the line. Sub clause (i) is a part of Clause 1.1 and hence mere surveyance, optimizing tower locations, erecting and stringing with tension stringing equipment, etc. is not sufficient to give the requisite technical experience to the bidder unless such work was satisfactorily completed, which means that it was tested and found to be functioning satisfactorily.21. If the bidder has surveyed, optimized tower locations, erected and strung with tension stringing equipment, the requisite length of transmission lines, but these transmission lines do not function, surely it cannot be said there was satisfactory completion of these transmission lines. In our opinion the expression ‘Satisfactory Completion govern sub clause (i) of Clause 1.1 also. Hence mere surveying, optimizing tower locations, erecting and stringing with tension stringing equipment the requisite length of transmission lines will not be enough to give the necessary technical experience because it is possible that even after doing the above work the transmission lines may not function. Unless after doing the above works the line is tested and found to be successfully functioning it surely cannot be said that there was satisfactory completion of the transmission lines.
### Response:
0
### Explanation:
We are of the opinion that even if satisfactory completion may not necessary mean commissioning of the line but it certainly means completion of the entire length of the line and thereafter testing the line to find out whether it is functioning satisfactorily. Without testing it how can one be sure that it has been completed satisfactorily.18. For instance, if an electrical line is laid inside a persons house, the only way to find out whether the electrical line has been laid satisfactorily is to find out by pressing the switch and seeing whether the bulb in the house is lighted or the fan starts running. Merely putting wires dangling inside the house but which do not light the bulb or turn the fan cannot be said to be satisfactory completion of the electrical line.19. In the present case, as can be seen from the chart set out above the appellant has not completed the lines from Trivenveli to Udmalet nor from Tapp to Kankaroli. Unless the entire line is laid and is found to be functioning satisfactorily, it cannot be said that there was satisfactory completion of the line.20. As regards the interpretation of Clause 1.1 we cannot agree with Shri Sudhir Chandra that the words ‘Satisfactorily Completed would not govern sub clause (i) of Clause 1.1. A fair reading of the entire Clause 1.1 along with sub clause (i) clearly indicates that the requisite technical experience requires satisfactorily completion of the requisite length of the line. Sub clause (i) is a part of Clause 1.1 and hence mere surveyance, optimizing tower locations, erecting and stringing with tension stringing equipment, etc. is not sufficient to give the requisite technical experience to the bidder unless such work was satisfactorily completed, which means that it was tested and found to be functioning satisfactorily.21. If the bidder has surveyed, optimized tower locations, erected and strung with tension stringing equipment, the requisite length of transmission lines, but these transmission lines do not function, surely it cannot be said there was satisfactory completion of these transmission lines. In our opinion the expression ‘Satisfactory Completion govern sub clause (i) of Clause 1.1 also. Hence mere surveying, optimizing tower locations, erecting and stringing with tension stringing equipment the requisite length of transmission lines will not be enough to give the necessary technical experience because it is possible that even after doing the above work the transmission lines may not function. Unless after doing the above works the line is tested and found to be successfully functioning it surely cannot be said that there was satisfactory completion of the transmission lines.
|
Nedunuri Kameswaramma Vs. Sampati Subba Rao | as the service is rendered properly.(Signed) ...........for Raja."and underneath, there is another endorsement:"Immediate steps should be taken to resume his Inam and assess, as they are being paid money."18. This shows that by 1920-21 the change in the law under which there was a money payment for Karnikam service was taken note of, and the lands were asked to be resumed by the Zamindar under S. 17 of Act II of 1894. In Exhibits A-3 and A-4(1923 and 1924). the Dewan again orders resumption of these lands, and in the latter, notice was ordered to be sent through a vakil. This notice was apparently issued in October, 1924, and the reply to it was given by Vakkalanka Venkatasubbarayudu in Ex B-34, where he stated that the lands wee not Dharmila Karnikam service inam. The admission of Vakkalanka Venkatasubbarayudu is used by the respondent as an admission against himself; but it is quite clear that Vakkalanka Venkatasubbarayudu made that statement merely to avert resumption of the lands, which was quite contrary to the facts already stated by us. Indeed, the Pithapuram Estate did not pay attention to it, and took a statement from Venkatasubbarayudu on September 1, 1925 (Ex. B-35) that he was willing to have a jeroyti patta, though he stated that his action was without prejudice to any case that he. might file in Court. Venkatasubbarayudu never filed a suit, and accepted Ex A- 5, the jeroyti patta in 1925. In addition to these documents, the appellant relied on Ex. A-12, an important document of l904, which is an extract from the Survey and Settlement Register. This land is there shown as held for karnarn service. He also relied on Ex. B. 25, but that is not a document relating to this land.19. From the above it will appear that right from 1903 to 1925 this land was treated as held on karnam service inam liable to be resumed by the Zamindar . The other documents show that it was, in fact, so resumed and a jeroyti patta was given, and in all the subsequent documents, it is described as jeroyti land.20. The other side relies upon some accounts which have been summoned from the Estate. Exhibits B-28 to B-30 are the Bhooband accounts of 1834, 1850 and 1851. They relate to some lands which are described as dumbala inams in Chalapalli-Nedunuru group. These accounts cannot be connected with the suit land, and no legal inference can be drawn from them. Exhibit B-36 (1906) is the Jhadta account of Fasli 1316. The land in suit is mentioned, and there is a note:"Entered as Karnam service inam but not correct. It is a Dharmila inam."There is no proof why this entry was made in the Jhadta account, who wrote it and when, and the entries are contradicted by the action of the Zamindar between 1921 and 1925 under which these lands were, in fact, resumed, which they would. not have been if they were Dharmila inam. This endorsement was held by the District Munsif not to have been proved. P. W. 1. could not depose of this fact, and we must treat the endorsement as inconclusive. The next is Ex B- 42 of 1892. That is a Dharrnila Inam Statement of Nedunuru Palivera Thana. The Pelivela Inams, according to the remarks column, were granted for ferry service. There is an entry in the name of Vakkalanka Venkatasubbarayudu under the heading "Shrotriem or servicer, and the entry there reads: "Dharmila Inam", but the extent of the land and its numbers are missing, and thus, there is no satisfactory evidence that this was the land which was described there. There is also a note to the following effect:"It is not known when the Inams were granted, by whom they were granted and for what purpose they were granted. No documents are available."This document does not throw any light upon the controversy, in view of the lack of material to connect it with the suit land. Exhibit B-2 is the Adangal Register of Fasli 1333, and the land is shown there as Dharmila inam. It is said that this Adangal Register was written by the appellants ancestor, who was the karnam. The fact that he was the karnam concedes a great deal of the appellants case. The entry made by the then karnam in a register which might not have been accurately maintained, cannot lead to an inference that he made this entry against his own interest. In fact, these people were claiming about that time that they had a Dharmila inam, so that it would not be resumed, and it may be that the entry was made merely to support a case. Similarly, Ex B-26 of 1920 is another account, and might have been written with the same object. The last document is Ex. B-28, which is a list of the dumbala inams in the Zamindari. There are no numbers of the lands, and there is thus nothing in it to connect the list with the land in suit.21. From the above analysis of the documents, it is quite clear that the documents on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the appellants case. Much cannot be made of a concession by counsel that this was a Dharmila inam, in the trial Court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two Courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it. | 1[ds]14. From the above, it will be seen that after the passing of Act II of 1894 the karnams were to be paid in cash and the Act enabled the enfranchisement of lands granted on favourable terms to the Karnams. The lands granted by the State were to be enfranchised by the State and those granted by the Zamindar by the Zamindar. The learned single Judge was of the view that the lands granted or held by way of remuneration for the performance of the village office such as that of a karnam could only be enfranchised by the State Government and not by the Zamindar, who had nothing to do with such lands. The action of the Zamindar in this case in 1925 to resume the lands and to re-grant them by a jeroyti patta was thus said to be entirely without jurisdiction. It was held that if these lands were originally Dharmila inams, they could not be resumed by the Zamindar, nor re-granted, and the learned Judge was of the further view that there was no such thing as a karnam service inam.15. The words of S. 17 of Act II of 1894 quite clearly show that lands could be granted for village service either by the State or by the proprietor. The title of the Act is "Proprietary Estates Village Service."The words "village servicer" are used in the second proviso to S. 17. Much distinction cannot, therefore, be made between village-officers and village servants as is made in the Madras Hereditary Village-offices Act, 1895(III of 1895). We do not think that the second proviso is only limited to lands granted by the proprietors to village artisans or village servants such as the astrologers and the purohits. Even in the Hereditary Village Offices Act, the term "officer" is used not only in the title but in connection with artisans and village servants. The gist of S. 17 thus was that lands granted for the remuneration of the karnams were to be resumed by the State if granted by the State, and by the proprietor, if granted by the proprietor.16. The land in question in this case has not been shown to be granted at any time by the State. Resumption by the State under S. 17 was thus out of question. The only question is whether it was a Dharmila inam, i.e. a personal service inam granted after the settlement or a grant for Karnikam service. That the land was held as Karnikam service inam on the date of resumption is amply proved by the proceedings themselves. The question is whether it was a Karnikam service mare. on this point, the oral evidence has not been considered, and we have thus only the documents filed by the parties.17. Of these documents, Exs. B-37 to B-43, which are the Dharrnila inam accounts of Nedunuru village for Fasli 1290 relating to Palivela Thana need not be considered, because it is impossible to connect them with the suit land. Similarly also, Ex. A-17 series, the file of assessment receipts. showing payment of taxes to Pithapuram Estate, are all after Ex. A-5, and do not add weight to it. They also concern diverse lands, and cannot be said to clinch the issue. Exhibits A-8 to A-11, A-14 and A-15 are the previous Kadapas executed in favour of the appellant similar to Ex.A-1, on which the suit was based. They are not relevant to decide the controversy, except in so far as there is an admission by the respondent that he has taken these lands on a yearly lease. Exhibits B-4 to B-12 are the assessment receipts from the jeroyti ryots. They do not mention the suit land, but the name of Vakkalanka Venkatasubbarayudu is mentioned in them. They show that Venkatasubbarayudu was paying jeroyti tax to the Estate from 1888 to 1901, which is the period covered by the receipts. These too cannot be said to help the appellant, because the identity of the lands again is not clear. The remaimng documents undoubtedly speak sometimes of the land as Dharmila inam and sometimes as held for Karnikam service. The documents on which the appellant relies are divided into two parts, those after the pasta, Ex A-5 dated September 1, 1925 or in connection with the grant thereof, and those before the grant of the said pasta. Exhibit B-1 is of the year 1903 and is a certified extract of the land register of Nedunuru village for the suit land, and there, it is clearly shown that this was a dharmila inam held for Karnikam service. Exhibits B-14 and B-15 both of June 15, 1903 also show the same thing. The first is a certified extract of a statement of Vakkalanka Venkatasubbarayudu before the Deputy Inam Collector, and the land is described as "Paikars Mirasi in Karnam Service" The other also mentions it as a service inam. These documents donot bear out the contentions of the respondent, even though Vakkalanka Venkatasubbarayudu seemed to have objected at the time.This shows that by 1920-21 the change in the law under which there was a money payment for Karnikam service was taken note of, and the lands were asked to be resumed by the Zamindar under S. 17 of Act II of 1894. In Exhibits A-3 and A-4(1923 and 1924). the Dewan again orders resumption of these lands, and in the latter, notice was ordered to be sent through a vakil. This notice was apparently issued in October, 1924, and the reply to it was given by Vakkalanka Venkatasubbarayudu in Ex B-34, where he stated that the lands wee not Dharmila Karnikam service inam. The admission of Vakkalanka Venkatasubbarayudu is used by the respondent as an admission against himself; but it is quite clear that Vakkalanka Venkatasubbarayudu made that statement merely to avert resumption of the lands, which was quite contrary to the facts already stated by us. Indeed, the Pithapuram Estate did not pay attention to it, and took a statement from Venkatasubbarayudu on September 1, 1925 (Ex. B-35) that he was willing to have a jeroyti patta, though he stated that his action was without prejudice to any case that he. might file in Court. Venkatasubbarayudu never filed a suit, and accepted Ex A- 5, the jeroyti patta in 1925. In addition to these documents, the appellant relied on Ex. A-12, an important document of l904, which is an extract from the Survey and Settlement Register. This land is there shown as held for karnarn service. He also relied on Ex. B. 25, but that is not a document relating to this land.19. From the above it will appear that right from 1903 to 1925 this land was treated as held on karnam service inam liable to be resumed by the Zamindar . The other documents show that it was, in fact, so resumed and a jeroyti patta was given, and in all the subsequent documents, it is described as jeroyti land.20. The other side relies upon some accounts which have been summoned from the Estate. Exhibits B-28 to B-30 are the Bhooband accounts of 1834, 1850 and 1851. They relate to some lands which are described as dumbala inams in Chalapalli-Nedunuru group. These accounts cannot be connected with the suit land, and no legal inference can be drawn from them. Exhibit B-36 (1906) is the Jhadta account of Fasliis no proof why this entry was made in the Jhadta account, who wrote it and when, and the entries are contradicted by the action of the Zamindar between 1921 and 1925 under which these lands were, in fact, resumed, which they would. not have been if they were Dharmila inam. This endorsement was held by the District Munsif not to have been proved. P. W. 1. could not depose of this fact, and we must treat the endorsement as inconclusive. The next is Ex B- 42 of 1892. That is a Dharrnila Inam Statement of Nedunuru Palivera Thana. The Pelivela Inams, according to the remarks column, were granted for ferry service. There is an entry in the name of Vakkalanka Venkatasubbarayudu under the heading "Shrotriem or servicer, and the entry there reads: "Dharmila Inam", but the extent of the land and its numbers are missing, and thus, there is no satisfactory evidence that this was the land which was describeddocument does not throw any light upon the controversy, in view of the lack of material to connect it with the suit land. Exhibit B-2 is the Adangal Register of Fasli 1333, and the land is shown there as Dharmila inam. It is said that this Adangal Register was written by the appellants ancestor, who was the karnam. The fact that he was the karnam concedes a great deal of the appellants case. The entry made by the then karnam in a register which might not have been accurately maintained, cannot lead to an inference that he made this entry against his own interest. In fact, these people were claiming about that time that they had a Dharmila inam, so that it would not be resumed, and it may be that the entry was made merely to support a case. Similarly, Ex B-26 of 1920 is another account, and might have been written with the same object. The last document is Ex. B-28, which is a list of the dumbala inams in the Zamindari. There are no numbers of the lands, and there is thus nothing in it to connect the list with the land in suit.21. From the above analysis of the documents, it is quite clear that the documents on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the appellants case. Much cannot be made of a concession by counsel that this was a Dharmila inam, in the trial Court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two Courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it. | 1 | 5,461 | 1,952 | ### 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:
as the service is rendered properly.(Signed) ...........for Raja."and underneath, there is another endorsement:"Immediate steps should be taken to resume his Inam and assess, as they are being paid money."18. This shows that by 1920-21 the change in the law under which there was a money payment for Karnikam service was taken note of, and the lands were asked to be resumed by the Zamindar under S. 17 of Act II of 1894. In Exhibits A-3 and A-4(1923 and 1924). the Dewan again orders resumption of these lands, and in the latter, notice was ordered to be sent through a vakil. This notice was apparently issued in October, 1924, and the reply to it was given by Vakkalanka Venkatasubbarayudu in Ex B-34, where he stated that the lands wee not Dharmila Karnikam service inam. The admission of Vakkalanka Venkatasubbarayudu is used by the respondent as an admission against himself; but it is quite clear that Vakkalanka Venkatasubbarayudu made that statement merely to avert resumption of the lands, which was quite contrary to the facts already stated by us. Indeed, the Pithapuram Estate did not pay attention to it, and took a statement from Venkatasubbarayudu on September 1, 1925 (Ex. B-35) that he was willing to have a jeroyti patta, though he stated that his action was without prejudice to any case that he. might file in Court. Venkatasubbarayudu never filed a suit, and accepted Ex A- 5, the jeroyti patta in 1925. In addition to these documents, the appellant relied on Ex. A-12, an important document of l904, which is an extract from the Survey and Settlement Register. This land is there shown as held for karnarn service. He also relied on Ex. B. 25, but that is not a document relating to this land.19. From the above it will appear that right from 1903 to 1925 this land was treated as held on karnam service inam liable to be resumed by the Zamindar . The other documents show that it was, in fact, so resumed and a jeroyti patta was given, and in all the subsequent documents, it is described as jeroyti land.20. The other side relies upon some accounts which have been summoned from the Estate. Exhibits B-28 to B-30 are the Bhooband accounts of 1834, 1850 and 1851. They relate to some lands which are described as dumbala inams in Chalapalli-Nedunuru group. These accounts cannot be connected with the suit land, and no legal inference can be drawn from them. Exhibit B-36 (1906) is the Jhadta account of Fasli 1316. The land in suit is mentioned, and there is a note:"Entered as Karnam service inam but not correct. It is a Dharmila inam."There is no proof why this entry was made in the Jhadta account, who wrote it and when, and the entries are contradicted by the action of the Zamindar between 1921 and 1925 under which these lands were, in fact, resumed, which they would. not have been if they were Dharmila inam. This endorsement was held by the District Munsif not to have been proved. P. W. 1. could not depose of this fact, and we must treat the endorsement as inconclusive. The next is Ex B- 42 of 1892. That is a Dharrnila Inam Statement of Nedunuru Palivera Thana. The Pelivela Inams, according to the remarks column, were granted for ferry service. There is an entry in the name of Vakkalanka Venkatasubbarayudu under the heading "Shrotriem or servicer, and the entry there reads: "Dharmila Inam", but the extent of the land and its numbers are missing, and thus, there is no satisfactory evidence that this was the land which was described there. There is also a note to the following effect:"It is not known when the Inams were granted, by whom they were granted and for what purpose they were granted. No documents are available."This document does not throw any light upon the controversy, in view of the lack of material to connect it with the suit land. Exhibit B-2 is the Adangal Register of Fasli 1333, and the land is shown there as Dharmila inam. It is said that this Adangal Register was written by the appellants ancestor, who was the karnam. The fact that he was the karnam concedes a great deal of the appellants case. The entry made by the then karnam in a register which might not have been accurately maintained, cannot lead to an inference that he made this entry against his own interest. In fact, these people were claiming about that time that they had a Dharmila inam, so that it would not be resumed, and it may be that the entry was made merely to support a case. Similarly, Ex B-26 of 1920 is another account, and might have been written with the same object. The last document is Ex. B-28, which is a list of the dumbala inams in the Zamindari. There are no numbers of the lands, and there is thus nothing in it to connect the list with the land in suit.21. From the above analysis of the documents, it is quite clear that the documents on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the appellants case. Much cannot be made of a concession by counsel that this was a Dharmila inam, in the trial Court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two Courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it.
### Response:
1
### Explanation:
suit land, and there, it is clearly shown that this was a dharmila inam held for Karnikam service. Exhibits B-14 and B-15 both of June 15, 1903 also show the same thing. The first is a certified extract of a statement of Vakkalanka Venkatasubbarayudu before the Deputy Inam Collector, and the land is described as "Paikars Mirasi in Karnam Service" The other also mentions it as a service inam. These documents donot bear out the contentions of the respondent, even though Vakkalanka Venkatasubbarayudu seemed to have objected at the time.This shows that by 1920-21 the change in the law under which there was a money payment for Karnikam service was taken note of, and the lands were asked to be resumed by the Zamindar under S. 17 of Act II of 1894. In Exhibits A-3 and A-4(1923 and 1924). the Dewan again orders resumption of these lands, and in the latter, notice was ordered to be sent through a vakil. This notice was apparently issued in October, 1924, and the reply to it was given by Vakkalanka Venkatasubbarayudu in Ex B-34, where he stated that the lands wee not Dharmila Karnikam service inam. The admission of Vakkalanka Venkatasubbarayudu is used by the respondent as an admission against himself; but it is quite clear that Vakkalanka Venkatasubbarayudu made that statement merely to avert resumption of the lands, which was quite contrary to the facts already stated by us. Indeed, the Pithapuram Estate did not pay attention to it, and took a statement from Venkatasubbarayudu on September 1, 1925 (Ex. B-35) that he was willing to have a jeroyti patta, though he stated that his action was without prejudice to any case that he. might file in Court. Venkatasubbarayudu never filed a suit, and accepted Ex A- 5, the jeroyti patta in 1925. In addition to these documents, the appellant relied on Ex. A-12, an important document of l904, which is an extract from the Survey and Settlement Register. This land is there shown as held for karnarn service. He also relied on Ex. B. 25, but that is not a document relating to this land.19. From the above it will appear that right from 1903 to 1925 this land was treated as held on karnam service inam liable to be resumed by the Zamindar . The other documents show that it was, in fact, so resumed and a jeroyti patta was given, and in all the subsequent documents, it is described as jeroyti land.20. The other side relies upon some accounts which have been summoned from the Estate. Exhibits B-28 to B-30 are the Bhooband accounts of 1834, 1850 and 1851. They relate to some lands which are described as dumbala inams in Chalapalli-Nedunuru group. These accounts cannot be connected with the suit land, and no legal inference can be drawn from them. Exhibit B-36 (1906) is the Jhadta account of Fasliis no proof why this entry was made in the Jhadta account, who wrote it and when, and the entries are contradicted by the action of the Zamindar between 1921 and 1925 under which these lands were, in fact, resumed, which they would. not have been if they were Dharmila inam. This endorsement was held by the District Munsif not to have been proved. P. W. 1. could not depose of this fact, and we must treat the endorsement as inconclusive. The next is Ex B- 42 of 1892. That is a Dharrnila Inam Statement of Nedunuru Palivera Thana. The Pelivela Inams, according to the remarks column, were granted for ferry service. There is an entry in the name of Vakkalanka Venkatasubbarayudu under the heading "Shrotriem or servicer, and the entry there reads: "Dharmila Inam", but the extent of the land and its numbers are missing, and thus, there is no satisfactory evidence that this was the land which was describeddocument does not throw any light upon the controversy, in view of the lack of material to connect it with the suit land. Exhibit B-2 is the Adangal Register of Fasli 1333, and the land is shown there as Dharmila inam. It is said that this Adangal Register was written by the appellants ancestor, who was the karnam. The fact that he was the karnam concedes a great deal of the appellants case. The entry made by the then karnam in a register which might not have been accurately maintained, cannot lead to an inference that he made this entry against his own interest. In fact, these people were claiming about that time that they had a Dharmila inam, so that it would not be resumed, and it may be that the entry was made merely to support a case. Similarly, Ex B-26 of 1920 is another account, and might have been written with the same object. The last document is Ex. B-28, which is a list of the dumbala inams in the Zamindari. There are no numbers of the lands, and there is thus nothing in it to connect the list with the land in suit.21. From the above analysis of the documents, it is quite clear that the documents on the side of the appellant established that this was a Karnikam service inam, and the action of the Zamindar in resuming it as such, which again has a presumption of correctness attaching to it, clearly established the appellants case. Much cannot be made of a concession by counsel that this was a Dharmila inam, in the trial Court, because it was a concession on a point of law, and it was withdrawn. Indeed, the central point in the dispute was this, and the concession appears to us to be due to some mistake or possibly ignorance not binding on the client. We are thus of opinion that the decision of the two Courts below which had concurrently held this to be jeroyti land after resumption of the Karnikam service inam, was correct in the circumstances of the case, and the High Court was not justified in reversing it.
|
The Commissioner Of Income Tax,Bombay City 1, Bombay Vs. M/S. Narsee Nagsee And Co., Bombay | four years from the end of the chargeable accounting period in question.20. It was argued for the appellant that S. 11(1) construed according to the plain meaning of the words used therein applies to original assessments and S. 14 to assessments in which notice was given but due to any cause whatsoever the proceedings resulted in no assessment or in underassessment. He referred to the words "require any person whom he believes to be engaged in any business.....or to have been engaged during any chargeable accounting period or to be otherwise liable", and submitted that these words mean that if an Income-tax Officer has such belief in regard to a person who is engaged in any business or was engaged in any business during any chargeable accounting period in question he can issue a notice at any time without limitation of time requiring a return to be filed etc. In support counsel for the appellant relied upon two judgments; Gokuldas Ratanji Mandavia v. Commissioner of Income-tax, 1959 AC 114 which was an appeal from East Africa and on Telu Ram Jain and Co. v. Commissioner of Income-tax, 1955-27 ITR 94 : (AIR 1955 Punj 58) a case decided by the Punjab High Court. In the former case a notice was issued to the assessee under S. 59 (1) of the East African Income Tax (Management) Act, 1952 which provided:"The Commissioner may, by notice in writing, required any person to furnish him within a reasonable time, not being less than thirty days from the date of service of such notice with a return of income......"Sections 71(1) and 72 provided:"S. 71(1). The Commissioner shall proceed to assess every person chargeable with tax as soon as may be after the expiration of the time allowed to such person for the delivery of his return.......""S. 72. Where it appears to the Commissioner that any person liable to tax has not been assessed.....the Commissioner may......assess such person and such amount......as, according to his judgment, ought to have been charged....."The notice requiring the assessee to furnish returns of his income for the years of assessment 1943-53 was issued but no return was filed and assessment was made under S. 72 of the East African Act for the years 1943-51. The assessee contended that S. 72 did not apply until the machinery under S. 71 had been put into operation and that the assessments were ultra vires and void because they were made before the time allowed by S. 71. It was held that S. 71 applied to all original assessments and S. 72 with reopening of cases which had been settled under a normal procedure. Accepting the contention of the assessee Lord Somervell of Harrow observed:-"If the power to make an assessment under section 72 applies to the making of an original assessment their Lordships are unable to imply a term restricting it to back cases or making it ultra vires to operate it at any time. One would expect an opportunity to make a return to be a condition precedent to assessment. This is supported by the provisions for personal allowances in Part VI of the Act. If respondent is right any person can be assessed without having any such opportunity. There would be two concurrent jurisdictions one providing reasonable protection for the taxpayer and the other providing no protection quoad the original assessment, apart from a right to appeal. Such a construction seems to their Lordships inconsistent with the general and mandatory provisions of S. 71. That section is providing how all original assessments are to be made."The language of these sections 59 (1), 71 and 72 is different from that of Ss. 11 and 14 of the Act. Section 72 was held not applicable because there would be two concurrent jurisdictions one providing reasonable protection for the taxpayer and the other providing no protection which would be contrary to the provisions of S. 71. According to the Privy Council it was necessary to restrict the words of S. 72 to cases in which the machinery of S. 59(1) having been operated no assessment resulted. The words of S. 14 are entirely different. It applies to cases of profits escaping assessment and the words "escaping assessment" have already been interpreted under S. 34 of the Income-tax Act and there is no reason why the same words occurring in a statute which is in pari materia should be given a different meaning in the two Acts. Further the difficulty which the Privy Council felt in regard to there being two jurisdictions, one giving protection to the assessee and the other not giving such protection ,does not exist in the present case because the process of assessment under S. 14 of the Act is exactly the same as it is where notice is given under S. 11(1) of the Act and all the advantages which an assessee would have under S. 11(1) are available to him under S. 14.21. The Punjab case to which our attention has been drawn was a case under the Excess Profits Tax Act and it was held that because of the removal of the limitation clause in S. 15 of that Act assessments were not hit by any period of limitation and a further observation not necessary for the decision of the case was made that even otherwise the language of S. 13 of that Act was wide and there was no substance in the contention that after the assessment period a notice under S. 13 of that Act could not be issued and that the only notice which could be given was one under S. 15.22. In view of the construction we have placed on S. 14 of the Act on the words "profits escaping assessment" that they apply to assessments where notice has been given and has resulted in no assessment and where due to inadvertence, oversight or other circumstances no notice was given, it is difficult to interpret S. 11 in the manner contended for by the appellant. | 0[ds]e provisions of the Act which arise for consideration are Ss. 2, 4, 5, 11 and 14. Section 2 is the definition section; S. 4 the charging section and S. 5 deals with the applicability of the Act.These sections lead to the conclusion that every business to which the Act applies is liable to the risk of being assessed to Business Profits Tax and it is well settled that income escapes assessment when the process of assessment has not been initiated as also in a case where it has resulted in no assessment after completion of the process of assessment. In our opinion the High Court was right when it held that Ss. 11 and 14 of the Act have to be read together.All these cases show that the words "escaping assessment" apply equally to cases where a notice was received by the assessee but resulted in no assessment at all and to cases where due to any reason no notice was issued to the assessee and therefore there was no assessment of his income. It is also clear from the language of S. 14 of the Act that when a notice is issued under that section all the requirements of the notice under S. 11 apply and theOfficer has to proceed in the manner as if the notice was issued under S. 11. Therefore any advantage or relief which was available to the assessee under S. 11 as to allowable deductions, deficiency etc. would be equally available, if the notice is issued under. S. 14.As the tax under the Act is charged, levied and paid on the taxable profits of a chargeable accounting period but assessment is in respect of the financial year in which the Act operates it is not an unreasonable inference that notice for the chargeable accounting period must issue in the financial year following that period. No difficulty would arise in regard to accounting periods which coincide with previous years i.e.,9. For these years the notice will issue in the following chargeable accounting period which again will be the financial year in which the Act would be operative. But the question is how the proviso to S. 2 (4) added by the Finance Act of 1948 would affect this rule. Taking a calendar year 1946 as the accounting period, for the financial yearthe chargeable accounting period would be the nine months period from April 1, 1946 to December 31, 1946, and notice under S. 11(1) of the Act must issue in the financial year because the tax is leviable and assessment is made for the year beginning April 1, 1947 when the Act came into force and remained operative during the yearAfter the Finance Act of 1948 the accounting year, if it was a calendar year, became divided into two parts and both were assessable in the assessment year beginning with April 1, 1948, and therefore notice had to be given in the financial yearSimilarly in the financial yearnotice would have to be given in that year for the preceding chargeable accounting period. In this view of the matter the contention that there is no provision in S. 11(1) of the Act as to the chargeable accounting period as there is for the previous year in S. 22 (2) of theThe modified S. 50, as introduced into the Act by the rules, means this that the refund, if any, can only be allowed within four years of the financial year which commences after the expiry of the accounting period which itself constitutes the chargeable accounting period or includes in it the chargeable accounting period in respect of which the refund is claimed. If the contention of the appellant is correct then this section will be wholly otiose where the assessment is levied after say 10 years from the end of the chargeable accounting period because by no method of calculation will a refund of tax in that circumstances be claimable under S. 50. This furnishes a key to when a notice under S. 11(1) has to be given. It must be given within the financial year which commences next after the expiry of the accounting period or the previous year which is by itself or includes the chargeable accounting period in question. Section 48 of theAct, as amended and applied to the Act, does not affect the operation of S. 50 because the two sections have to be read together and the assessee must apply for the refund within the period specified by S.language of these sections 59 (1), 71 and 72 is different from that of Ss. 11 and 14 of the Act. Section 72 was held not applicable because there would be two concurrent jurisdictions one providing reasonable protection for the taxpayer and the other providing no protection which would be contrary to the provisions of S. 71. According to the Privy Council it was necessary to restrict the words of S. 72 to cases in which the machinery of S. 59(1) having been operated no assessment resulted. The words of S. 14 are entirely different. It applies to cases of profits escaping assessment and the words "escaping assessment" have already been interpreted under S. 34 of theAct and there is no reason why the same words occurring in a statute which is in pari materia should be given a different meaning in the two Acts. Further the difficulty which the Privy Council felt in regard to there being two jurisdictions, one giving protection to the assessee and the other not giving such protection ,does not exist in the present case because the process of assessment under S. 14 of the Act is exactly the same as it is where notice is given under S. 11(1) of the Act and all the advantages which an assessee would have under S. 11(1) are available to him under S. 14.21. The Punjab case to which our attention has been drawn was a case under the Excess Profits Tax Act and it was held that because of the removal of the limitation clause in S. 15 of that Act assessments were not hit by any period of limitation and a further observation not necessary for the decision of the case was made that even otherwise the language of S. 13 of that Act was wide and there was no substance in the contention that after the assessment period a notice under S. 13 of that Act could not be issued and that the only notice which could be given was one under S. 15.22. In view of the construction we have placed on S. 14 of the Act on the words "profits escaping assessment" that they apply to assessments where notice has been given and has resulted in no assessment and where due to inadvertence, oversight or other circumstances no notice was given, it is difficult to interpret S. 11 in the manner contended for by the appellant. | 0 | 6,124 | 1,239 | ### Instruction:
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four years from the end of the chargeable accounting period in question.20. It was argued for the appellant that S. 11(1) construed according to the plain meaning of the words used therein applies to original assessments and S. 14 to assessments in which notice was given but due to any cause whatsoever the proceedings resulted in no assessment or in underassessment. He referred to the words "require any person whom he believes to be engaged in any business.....or to have been engaged during any chargeable accounting period or to be otherwise liable", and submitted that these words mean that if an Income-tax Officer has such belief in regard to a person who is engaged in any business or was engaged in any business during any chargeable accounting period in question he can issue a notice at any time without limitation of time requiring a return to be filed etc. In support counsel for the appellant relied upon two judgments; Gokuldas Ratanji Mandavia v. Commissioner of Income-tax, 1959 AC 114 which was an appeal from East Africa and on Telu Ram Jain and Co. v. Commissioner of Income-tax, 1955-27 ITR 94 : (AIR 1955 Punj 58) a case decided by the Punjab High Court. In the former case a notice was issued to the assessee under S. 59 (1) of the East African Income Tax (Management) Act, 1952 which provided:"The Commissioner may, by notice in writing, required any person to furnish him within a reasonable time, not being less than thirty days from the date of service of such notice with a return of income......"Sections 71(1) and 72 provided:"S. 71(1). The Commissioner shall proceed to assess every person chargeable with tax as soon as may be after the expiration of the time allowed to such person for the delivery of his return.......""S. 72. Where it appears to the Commissioner that any person liable to tax has not been assessed.....the Commissioner may......assess such person and such amount......as, according to his judgment, ought to have been charged....."The notice requiring the assessee to furnish returns of his income for the years of assessment 1943-53 was issued but no return was filed and assessment was made under S. 72 of the East African Act for the years 1943-51. The assessee contended that S. 72 did not apply until the machinery under S. 71 had been put into operation and that the assessments were ultra vires and void because they were made before the time allowed by S. 71. It was held that S. 71 applied to all original assessments and S. 72 with reopening of cases which had been settled under a normal procedure. Accepting the contention of the assessee Lord Somervell of Harrow observed:-"If the power to make an assessment under section 72 applies to the making of an original assessment their Lordships are unable to imply a term restricting it to back cases or making it ultra vires to operate it at any time. One would expect an opportunity to make a return to be a condition precedent to assessment. This is supported by the provisions for personal allowances in Part VI of the Act. If respondent is right any person can be assessed without having any such opportunity. There would be two concurrent jurisdictions one providing reasonable protection for the taxpayer and the other providing no protection quoad the original assessment, apart from a right to appeal. Such a construction seems to their Lordships inconsistent with the general and mandatory provisions of S. 71. That section is providing how all original assessments are to be made."The language of these sections 59 (1), 71 and 72 is different from that of Ss. 11 and 14 of the Act. Section 72 was held not applicable because there would be two concurrent jurisdictions one providing reasonable protection for the taxpayer and the other providing no protection which would be contrary to the provisions of S. 71. According to the Privy Council it was necessary to restrict the words of S. 72 to cases in which the machinery of S. 59(1) having been operated no assessment resulted. The words of S. 14 are entirely different. It applies to cases of profits escaping assessment and the words "escaping assessment" have already been interpreted under S. 34 of the Income-tax Act and there is no reason why the same words occurring in a statute which is in pari materia should be given a different meaning in the two Acts. Further the difficulty which the Privy Council felt in regard to there being two jurisdictions, one giving protection to the assessee and the other not giving such protection ,does not exist in the present case because the process of assessment under S. 14 of the Act is exactly the same as it is where notice is given under S. 11(1) of the Act and all the advantages which an assessee would have under S. 11(1) are available to him under S. 14.21. The Punjab case to which our attention has been drawn was a case under the Excess Profits Tax Act and it was held that because of the removal of the limitation clause in S. 15 of that Act assessments were not hit by any period of limitation and a further observation not necessary for the decision of the case was made that even otherwise the language of S. 13 of that Act was wide and there was no substance in the contention that after the assessment period a notice under S. 13 of that Act could not be issued and that the only notice which could be given was one under S. 15.22. In view of the construction we have placed on S. 14 of the Act on the words "profits escaping assessment" that they apply to assessments where notice has been given and has resulted in no assessment and where due to inadvertence, oversight or other circumstances no notice was given, it is difficult to interpret S. 11 in the manner contended for by the appellant.
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to cases where due to any reason no notice was issued to the assessee and therefore there was no assessment of his income. It is also clear from the language of S. 14 of the Act that when a notice is issued under that section all the requirements of the notice under S. 11 apply and theOfficer has to proceed in the manner as if the notice was issued under S. 11. Therefore any advantage or relief which was available to the assessee under S. 11 as to allowable deductions, deficiency etc. would be equally available, if the notice is issued under. S. 14.As the tax under the Act is charged, levied and paid on the taxable profits of a chargeable accounting period but assessment is in respect of the financial year in which the Act operates it is not an unreasonable inference that notice for the chargeable accounting period must issue in the financial year following that period. No difficulty would arise in regard to accounting periods which coincide with previous years i.e.,9. For these years the notice will issue in the following chargeable accounting period which again will be the financial year in which the Act would be operative. But the question is how the proviso to S. 2 (4) added by the Finance Act of 1948 would affect this rule. Taking a calendar year 1946 as the accounting period, for the financial yearthe chargeable accounting period would be the nine months period from April 1, 1946 to December 31, 1946, and notice under S. 11(1) of the Act must issue in the financial year because the tax is leviable and assessment is made for the year beginning April 1, 1947 when the Act came into force and remained operative during the yearAfter the Finance Act of 1948 the accounting year, if it was a calendar year, became divided into two parts and both were assessable in the assessment year beginning with April 1, 1948, and therefore notice had to be given in the financial yearSimilarly in the financial yearnotice would have to be given in that year for the preceding chargeable accounting period. In this view of the matter the contention that there is no provision in S. 11(1) of the Act as to the chargeable accounting period as there is for the previous year in S. 22 (2) of theThe modified S. 50, as introduced into the Act by the rules, means this that the refund, if any, can only be allowed within four years of the financial year which commences after the expiry of the accounting period which itself constitutes the chargeable accounting period or includes in it the chargeable accounting period in respect of which the refund is claimed. If the contention of the appellant is correct then this section will be wholly otiose where the assessment is levied after say 10 years from the end of the chargeable accounting period because by no method of calculation will a refund of tax in that circumstances be claimable under S. 50. This furnishes a key to when a notice under S. 11(1) has to be given. It must be given within the financial year which commences next after the expiry of the accounting period or the previous year which is by itself or includes the chargeable accounting period in question. Section 48 of theAct, as amended and applied to the Act, does not affect the operation of S. 50 because the two sections have to be read together and the assessee must apply for the refund within the period specified by S.language of these sections 59 (1), 71 and 72 is different from that of Ss. 11 and 14 of the Act. Section 72 was held not applicable because there would be two concurrent jurisdictions one providing reasonable protection for the taxpayer and the other providing no protection which would be contrary to the provisions of S. 71. According to the Privy Council it was necessary to restrict the words of S. 72 to cases in which the machinery of S. 59(1) having been operated no assessment resulted. The words of S. 14 are entirely different. It applies to cases of profits escaping assessment and the words "escaping assessment" have already been interpreted under S. 34 of theAct and there is no reason why the same words occurring in a statute which is in pari materia should be given a different meaning in the two Acts. Further the difficulty which the Privy Council felt in regard to there being two jurisdictions, one giving protection to the assessee and the other not giving such protection ,does not exist in the present case because the process of assessment under S. 14 of the Act is exactly the same as it is where notice is given under S. 11(1) of the Act and all the advantages which an assessee would have under S. 11(1) are available to him under S. 14.21. The Punjab case to which our attention has been drawn was a case under the Excess Profits Tax Act and it was held that because of the removal of the limitation clause in S. 15 of that Act assessments were not hit by any period of limitation and a further observation not necessary for the decision of the case was made that even otherwise the language of S. 13 of that Act was wide and there was no substance in the contention that after the assessment period a notice under S. 13 of that Act could not be issued and that the only notice which could be given was one under S. 15.22. In view of the construction we have placed on S. 14 of the Act on the words "profits escaping assessment" that they apply to assessments where notice has been given and has resulted in no assessment and where due to inadvertence, oversight or other circumstances no notice was given, it is difficult to interpret S. 11 in the manner contended for by the appellant.
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Mohan Soni Vs. Ram Avtar Tomar | 343 , this Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paragraphs 10, 11 and 13 of the judgment in Raj Kumar, this Court made the following observations: “10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254 and Yadava Kumar v. National Insurance Co. Ltd. (2010) 10 SCC 341 ). 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.” 10. In light of the aforesaid decisions, we find it extremely difficult to uphold the decision of the High Court and the Tribunal based on the finding that the loss of the appellants earning capacity as a result of the amputation of his left leg was only 50%. It is noted above that the appellant used to earn his livelihood as a cart puller. The Tribunal has found that at the time of the accident his age was 55 years. At that age it would be impossible for the appellant to find any job. From the trend of cross-examination it appears that an attempt was made to suggest that notwithstanding the loss of one leg the appellant could still do some work sitting down such as selling vegetables. It is all very well to theoretically talk about a cart puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who suffered some serious permanent disability resulting from the loss of a limb etc. should not take into account such indeterminate factors. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income. The loss of earning capacity of the appellant, according to us, may be as high as 100% but in no case it would be less than 90%. We, accordingly, find and hold that the compensation for the loss of appellants future earnings must be computed on that basis. On calculation on that basis, the amount of compensation would come to Rs.3,56,400/- and after addition of a sum of Rs.30,000/- and Rs.15,000/- the total amount would be Rs.4,01,400/-. The additional compensation amount would carry interest at the rate of 9% per annum from the date of filing of the claim petition till the date of payment. The additional amount of compensation along with interest should be paid to the appellant without delay and not later than three months from today. | 1[ds]we are of the view that both the Tribunal and the High Court were in error in pegging down the disability of the appellant to 50% with reference to Schedule 1 of the Workmens Compensation Act, 1923. In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on ones personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or afind it extremely difficult to uphold the decision of the High Court and the Tribunal based on the finding that the loss of the appellants earning capacity as a result of the amputation of his left leg was only 50%. It is noted above that the appellant used to earn his livelihood as a cart puller. The Tribunal has found that at the time of the accident his age was 55 years. At that age it would be impossible for the appellant to find any job. From the trend of cross-examination it appears that an attempt was made to suggest that notwithstanding the loss of one leg the appellant could still do some work sitting down such as selling vegetables. It is all very well to theoretically talk about a cart puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who suffered some serious permanent disability resulting from the loss of a limb etc. should not take into account such indeterminate factors. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income. The loss of earning capacity of the appellant, according to us, may be as high as 100% but in no case it would be less than 90%. | 1 | 2,462 | 641 | ### Instruction:
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343 , this Court considered in great detail the correlation between the physical disability suffered in an accident and the loss of earning capacity resulting from it. In paragraphs 10, 11 and 13 of the judgment in Raj Kumar, this Court made the following observations: “10. Where the claimant suffers a permanent disability as a result of injuries, the assessment of compensation under the head of loss of future earnings would depend upon the effect and impact of such permanent disability on his earning capacity. The Tribunal should not mechanically apply the percentage of permanent disability as the percentage of economic loss or loss of earning capacity. In most of the cases, the percentage of economic loss, that is, the percentage of loss of earning capacity, arising from a permanent disability will be different from the percentage of permanent disability. Some Tribunals wrongly assume that in all cases, a particular extent (percentage) of permanent disability would result in a corresponding loss of earning capacity, and consequently, if the evidence produced show 45% as the permanent disability, will hold that there is 45% loss of future earning capacity. In most of the cases, equating the extent (percentage) of loss of earning capacity to the extent (percentage) of permanent disability will result in award of either too low or too high a compensation. 11. What requires to be assessed by the Tribunal is the effect of the permanent disability on the earning capacity of the injured; and after assessing the loss of earning capacity in terms of a percentage of the income, it has to be quantified in terms of money, to arrive at the future loss of earnings (by applying the standard multiplier method used to determine loss of dependency). We may however note that in some cases, on appreciation of evidence and assessment, the Tribunal may find that the percentage of loss of earning capacity as a result of the permanent disability is approximately the same as the percentage of permanent disability in which case, of course, the Tribunal will adopt the said percentage for determination of compensation. (See for example, the decisions of this Court in Arvind Kumar Mishra v. New India Assurance Co. Ltd. (2010) 10 SCC 254 and Yadava Kumar v. National Insurance Co. Ltd. (2010) 10 SCC 341 ). 13. Ascertainment of the effect of the permanent disability on the actual earning capacity involves three steps. The Tribunal has to first ascertain what activities the claimant could carry on in spite of the permanent disability and what he could not do as a result of the permanent disability (this is also relevant for awarding compensation under the head of loss of amenities of life). The second step is to ascertain his avocation, profession and nature of work before the accident, as also his age. The third step is to find out whether (i) the claimant is totally disabled from earning any kind of livelihood, or (ii) whether in spite of the permanent disability, the claimant could still effectively carry on the activities and functions, which he was earlier carrying on, or (iii) whether he was prevented or restricted from discharging his previous activities and functions, but could carry on some other or lesser scale of activities and functions so that he continues to earn or can continue to earn his livelihood.” 10. In light of the aforesaid decisions, we find it extremely difficult to uphold the decision of the High Court and the Tribunal based on the finding that the loss of the appellants earning capacity as a result of the amputation of his left leg was only 50%. It is noted above that the appellant used to earn his livelihood as a cart puller. The Tribunal has found that at the time of the accident his age was 55 years. At that age it would be impossible for the appellant to find any job. From the trend of cross-examination it appears that an attempt was made to suggest that notwithstanding the loss of one leg the appellant could still do some work sitting down such as selling vegetables. It is all very well to theoretically talk about a cart puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who suffered some serious permanent disability resulting from the loss of a limb etc. should not take into account such indeterminate factors. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income. The loss of earning capacity of the appellant, according to us, may be as high as 100% but in no case it would be less than 90%. We, accordingly, find and hold that the compensation for the loss of appellants future earnings must be computed on that basis. On calculation on that basis, the amount of compensation would come to Rs.3,56,400/- and after addition of a sum of Rs.30,000/- and Rs.15,000/- the total amount would be Rs.4,01,400/-. The additional compensation amount would carry interest at the rate of 9% per annum from the date of filing of the claim petition till the date of payment. The additional amount of compensation along with interest should be paid to the appellant without delay and not later than three months from today.
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we are of the view that both the Tribunal and the High Court were in error in pegging down the disability of the appellant to 50% with reference to Schedule 1 of the Workmens Compensation Act, 1923. In the context of loss of future earning, any physical disability resulting from an accident has to be judged with reference to the nature of work being performed by the person suffering the disability. This is the basic premise and once that is grasped, it clearly follows that the same injury or loss may affect two different persons in different ways. Take the case of a marginal farmer who does his cultivation work himself and ploughs his land with his own two hands; or the puller of a cycle-rickshaw, one of the main means of transport in hundreds of small towns all over the country. The loss of one of the legs either to the marginal farmer or the cycle-rickshaw-puller would be the end of the road insofar as their earning capacity is concerned. But in case of a person engaged in some kind of desk work in an office, the loss of a leg may not have the same effect. The loss of a leg (or for that matter the loss of any limb) to anyone is bound to have very traumatic effects on ones personal, family or social life but the loss of one of the legs to a person working in the office would not interfere with his work/earning capacity in the same degree as in the case of a marginal farmer or afind it extremely difficult to uphold the decision of the High Court and the Tribunal based on the finding that the loss of the appellants earning capacity as a result of the amputation of his left leg was only 50%. It is noted above that the appellant used to earn his livelihood as a cart puller. The Tribunal has found that at the time of the accident his age was 55 years. At that age it would be impossible for the appellant to find any job. From the trend of cross-examination it appears that an attempt was made to suggest that notwithstanding the loss of one leg the appellant could still do some work sitting down such as selling vegetables. It is all very well to theoretically talk about a cart puller changing his work and becoming a vegetable vendor. But the computation of compensation payable to a victim of motor accident who suffered some serious permanent disability resulting from the loss of a limb etc. should not take into account such indeterminate factors. Any scaling down of the compensation should require something more tangible than a hypothetical conjecture that notwithstanding the disability, the victim could make up for the loss of income by changing his vocation or by adopting another means of livelihood. The party advocating for a lower amount of compensation for that reason must plead and show before the Tribunal that the victim enjoyed some legal protection (as in the case of persons covered by The Persons with Disabilities (Equal Opportunities, Protection of Rights and Full Participation) Act, 1995) or in case of the vast multitude who earn their livelihood in the unorganized sector by leading cogent evidence that the victim had in fact changed his vocation or the means of his livelihood and by virtue of such change he was deriving a certain income. The loss of earning capacity of the appellant, according to us, may be as high as 100% but in no case it would be less than 90%.
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Ramdas Bansal (D) Thr. Lr Vs. Kharag Singh Baid | as 6-A, Sambhu Chatterjee Street, and that the said two premises were inseparable. Both the Courts, accordingly, rejected the plea of the Appellant that the suit was not maintainable as the description of the suit property did not tally with the description of the property in the lease deed. Consequently, both the Courts allowed the prayer of the Respondent/Plaintiff to rectify the schedule of the lease deed to correct the mis- description of the suit property therein, as there was no doubt as to the identity of the suit property on which Grace Cinema Hall was situate, and the building erected on the two plots was inseparable.28. In the facts of the case, we see no reason to interfere with the decision of the High Court in this regard.29. The point relating to a portion of the demised premises being a Thika Tenancy and thus covered by the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, was raised before the Division Bench of the High Court, which, however, negated such contention upon holding that the Respondents were not Thika Tenants since the building had been constructed on the land in question before the Calcutta Thika Tenancy Act, 1949, came into operation. Placing reliance on the doctrine of separation of possession from ownership, the Division Bench further held that the Appellant had failed to establish that the Respondents or their predecessors-in-interest were Thika Tenants of the suit property. The Division Bench also held that even after execution of the lease deed in favour of the Respondents, the lessor remained the owner of the property, whereas the Respondents father merely got the right to enjoyment of the property and could not, therefore, be said to be the Thika Tenant within the meaning of the definition given in the subsequent legislations. On such reasoning, the Division Bench rejected the application filed on behalf of the Appellant under Order XLI Rule 27 CPC to bring on record subsequent facts to prove his status as a tenant of a portion of the structure in relation to which the Appellant had acquired the status of a Bharatia after the acquisition of Thika Tenancies under the 1981 Act.30. The law relating to Thika Tenancies in relation to Calcutta and Howrah, as it existed prior to the Acquisition Act of 1981, was the Calcutta Thika Tenancy Act, 1949, which excluded leases of land exceeding 12 years duration. The instant lease being one for 20 years, the same stood excluded from the operation of the 1949 Act, when it was executed. In any event, having been granted a lease for a period of twenty one years in respect of the building standing on the suit premises, comprising premises No.91-A, Mahatma Gandhi Road and 6-A, Sambhu Chatterjee Street, Kolkata, in which the Grace Cinema was located, the Appellant could never claim to be a Thika Tenant in respect of the suit premises as defined either under the Calcutta Thika Tenancy Act, the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981, as well as The West Bengal (Acquisition and Regulation) Act, 2001.31. As has been indicated hereinbefore, a “Thika Tenant” under the Calcutta Thika Tenancy Act, 1949, was defined to mean any person who, inter alia, held, whether under a written lease or otherwise, land under another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors-in-interest of such person, except for the exceptions indicated in Sub-Section (5) of Section 2 of the said Act. As also indicated hereinbefore, the aforesaid Act stood repealed by the Calcutta Thika Tenancy and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981, which provided for the acquisition of interest of landlords in respect of lands comprised in Thika Tenancies and certain other tenancies and other lands in Kolkata and Howrah for development and equitable utilization of such lands. In the said Act, a “Thika Tenant” has been defined to mean any person who occupies, whether under a written lease or otherwise land under another person and is or but for a special contract liable to pay rent, at a monthly or periodical rate, for the land to the said person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes the successors-in-interest of such person. What is significant in the definition of Thika Tenant under the 1981 Act is the persons who had been excluded from the definition in the 1949 Act, were also brought within the ambit of the 1981 Act. Consequently, certain lands which were earlier excluded from the definition of “Thika Tenancy”, were now brought within its ambit.32. The circumstances were further altered with the enactment of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001, to provide for the acquisition of interests of landlords in respect of lands comprised in Thika Tenancies and certain other tenancies in Kolkata and Howrah and other Municipalities of West Bengal for development and equitable utilization of such lands with a view to sub-serve the common good. It is clear that the main object of the 2001 Act was to extend the acquisition of lands beyond Kolkata and Howrah, in other Municipalities of West Bengal, for development and proper utilization of such lands.33. The Appellant does not come within the ambit of any of the definitions under the aforesaid three Acts having been granted a lease of the structures which had already been erected on the lands long before the coming into operation of either the 1949 Act or the 1981 Act or even the 2001 Act. Consequently, the provisions of the West Bengal Premises Tenancy Act, 1956, will not also be applicable to the Appellant, whose lease stood excluded from the operation of the aforesaid Act under Section 3 thereof. Consequently, the Appellants application under Order XLI Rule 27 CPC was quite rightly rejected by the High Court. | 0[ds]27. The said question has been dealt with in detail both by the learned Single Judge, as well as the Division Bench of the High Court, and both the Courts had held that the said issue was not of much consequence, since, as is evident from paragraph 2 of the Written Statement, the Appellant herein was fully aware at the time of granting of the lease that the demised premises consisted of a building constructed on the premises which consisted of both premises No.91-A, Mahatma Gandhi Road, as well as 6-A, Sambhu Chatterjee Street, and that the said two premises were inseparable. Both the Courts, accordingly, rejected the plea of the Appellant that the suit was not maintainable as the description of the suit property did not tally with the description of the property in the lease deed. Consequently, both the Courts allowed the prayer of the Respondent/Plaintiff to rectify the schedule of the lease deed to correct the mis- description of the suit property therein, as there was no doubt as to the identity of the suit property on which Grace Cinema Hall was situate, and the building erected on the two plots was inseparable.28. In the facts of the case, we see no reason to interfere with the decision of the High Court in this regard.29. The point relating to a portion of the demised premises being a Thika Tenancy and thus covered by the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, was raised before the Division Bench of the High Court, which, however, negated such contention upon holding that the Respondents were not Thika Tenants since the building had been constructed on the land in question before the Calcutta Thika Tenancy Act, 1949, came into operation. Placing reliance on the doctrine of separation of possession from ownership, the Division Bench further held that the Appellant had failed to establish that the Respondents or their predecessors-in-interest were Thika Tenants of the suit property. The Division Bench also held that even after execution of the lease deed in favour of the Respondents, the lessor remained the owner of the property, whereas the Respondents father merely got the right to enjoyment of the property and could not, therefore, be said to be the Thika Tenant within the meaning of the definition given in the subsequent legislations. On such reasoning, the Division Bench rejected the application filed on behalf of the Appellant under Order XLI Rule 27 CPC to bring on record subsequent facts to prove his status as a tenant of a portion of the structure in relation to which the Appellant had acquired the status of a Bharatia after the acquisition of Thika Tenancies under the 1981 Act.30. The law relating to Thika Tenancies in relation to Calcutta and Howrah, as it existed prior to the Acquisition Act of 1981, was the Calcutta Thika Tenancy Act, 1949, which excluded leases of land exceeding 12 years duration. The instant lease being one for 20 years, the same stood excluded from the operation of the 1949 Act, when it was executed. In any event, having been granted a lease for a period of twenty one years in respect of the building standing on the suit premises, comprising premises No.91-A, Mahatma Gandhi Road and 6-A, Sambhu Chatterjee Street, Kolkata, in which the Grace Cinema was located, the Appellant could never claim to be a Thika Tenant in respect of the suit premises as defined either under the Calcutta Thika Tenancy Act, the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981, as well as The West Bengal (Acquisition and Regulation) Act, 2001.31. As has been indicated hereinbefore, aer the Calcutta Thika Tenancy Act, 1949, was defined to mean any person who, inter alia, held, whether under a written lease or otherwise, land under another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors-in-interest of such person, except for the exceptions indicated in Sub-Section (5) of Section 2 of the said Act. As also indicated hereinbefore, the aforesaid Act stood repealed by the Calcutta Thika Tenancy and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981, which provided for the acquisition of interest of landlords in respect of lands comprised in Thika Tenancies and certain other tenancies and other lands in Kolkata and Howrah for development and equitable utilization of such lands. In the said Act, aas been defined to mean any person who occupies, whether under a written lease or otherwise land under another person and is or but for a special contract liable to pay rent, at a monthly or periodical rate, for the land to the said person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes the successors-in-interest of such person. What is significant in the definition of Thika Tenant under the 1981 Act is the persons who had been excluded from the definition in the 1949 Act, were also brought within the ambit of the 1981 Act. Consequently, certain lands which were earlier excluded from the definition of, were now brought within its ambit.32. The circumstances were further altered with the enactment of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001, to provide for the acquisition of interests of landlords in respect of lands comprised in Thika Tenancies and certain other tenancies in Kolkata and Howrah and other Municipalities of West Bengal for development and equitable utilization of such lands with a view to sub-serve the common good. It is clear that the main object of the 2001 Act was to extend the acquisition of lands beyond Kolkata and Howrah, in other Municipalities of West Bengal, for development and proper utilization of such lands.33. The Appellant does not come within the ambit of any of the definitions under the aforesaid three Acts having been granted a lease of the structures which had already been erected on the lands long before the coming into operation of either the 1949 Act or the 1981 Act or even the 2001 Act. Consequently, the provisions of the West Bengal Premises Tenancy Act, 1956, will not also be applicable to the Appellant, whose lease stood excluded from the operation of the aforesaid Act under Section 3 thereof. Consequently, the Appellants application under Order XLI Rule 27 CPC was quite rightly rejected by the High Court. | 0 | 6,871 | 1,193 | ### 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:
as 6-A, Sambhu Chatterjee Street, and that the said two premises were inseparable. Both the Courts, accordingly, rejected the plea of the Appellant that the suit was not maintainable as the description of the suit property did not tally with the description of the property in the lease deed. Consequently, both the Courts allowed the prayer of the Respondent/Plaintiff to rectify the schedule of the lease deed to correct the mis- description of the suit property therein, as there was no doubt as to the identity of the suit property on which Grace Cinema Hall was situate, and the building erected on the two plots was inseparable.28. In the facts of the case, we see no reason to interfere with the decision of the High Court in this regard.29. The point relating to a portion of the demised premises being a Thika Tenancy and thus covered by the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, was raised before the Division Bench of the High Court, which, however, negated such contention upon holding that the Respondents were not Thika Tenants since the building had been constructed on the land in question before the Calcutta Thika Tenancy Act, 1949, came into operation. Placing reliance on the doctrine of separation of possession from ownership, the Division Bench further held that the Appellant had failed to establish that the Respondents or their predecessors-in-interest were Thika Tenants of the suit property. The Division Bench also held that even after execution of the lease deed in favour of the Respondents, the lessor remained the owner of the property, whereas the Respondents father merely got the right to enjoyment of the property and could not, therefore, be said to be the Thika Tenant within the meaning of the definition given in the subsequent legislations. On such reasoning, the Division Bench rejected the application filed on behalf of the Appellant under Order XLI Rule 27 CPC to bring on record subsequent facts to prove his status as a tenant of a portion of the structure in relation to which the Appellant had acquired the status of a Bharatia after the acquisition of Thika Tenancies under the 1981 Act.30. The law relating to Thika Tenancies in relation to Calcutta and Howrah, as it existed prior to the Acquisition Act of 1981, was the Calcutta Thika Tenancy Act, 1949, which excluded leases of land exceeding 12 years duration. The instant lease being one for 20 years, the same stood excluded from the operation of the 1949 Act, when it was executed. In any event, having been granted a lease for a period of twenty one years in respect of the building standing on the suit premises, comprising premises No.91-A, Mahatma Gandhi Road and 6-A, Sambhu Chatterjee Street, Kolkata, in which the Grace Cinema was located, the Appellant could never claim to be a Thika Tenant in respect of the suit premises as defined either under the Calcutta Thika Tenancy Act, the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981, as well as The West Bengal (Acquisition and Regulation) Act, 2001.31. As has been indicated hereinbefore, a “Thika Tenant” under the Calcutta Thika Tenancy Act, 1949, was defined to mean any person who, inter alia, held, whether under a written lease or otherwise, land under another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors-in-interest of such person, except for the exceptions indicated in Sub-Section (5) of Section 2 of the said Act. As also indicated hereinbefore, the aforesaid Act stood repealed by the Calcutta Thika Tenancy and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981, which provided for the acquisition of interest of landlords in respect of lands comprised in Thika Tenancies and certain other tenancies and other lands in Kolkata and Howrah for development and equitable utilization of such lands. In the said Act, a “Thika Tenant” has been defined to mean any person who occupies, whether under a written lease or otherwise land under another person and is or but for a special contract liable to pay rent, at a monthly or periodical rate, for the land to the said person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes the successors-in-interest of such person. What is significant in the definition of Thika Tenant under the 1981 Act is the persons who had been excluded from the definition in the 1949 Act, were also brought within the ambit of the 1981 Act. Consequently, certain lands which were earlier excluded from the definition of “Thika Tenancy”, were now brought within its ambit.32. The circumstances were further altered with the enactment of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001, to provide for the acquisition of interests of landlords in respect of lands comprised in Thika Tenancies and certain other tenancies in Kolkata and Howrah and other Municipalities of West Bengal for development and equitable utilization of such lands with a view to sub-serve the common good. It is clear that the main object of the 2001 Act was to extend the acquisition of lands beyond Kolkata and Howrah, in other Municipalities of West Bengal, for development and proper utilization of such lands.33. The Appellant does not come within the ambit of any of the definitions under the aforesaid three Acts having been granted a lease of the structures which had already been erected on the lands long before the coming into operation of either the 1949 Act or the 1981 Act or even the 2001 Act. Consequently, the provisions of the West Bengal Premises Tenancy Act, 1956, will not also be applicable to the Appellant, whose lease stood excluded from the operation of the aforesaid Act under Section 3 thereof. Consequently, the Appellants application under Order XLI Rule 27 CPC was quite rightly rejected by the High Court.
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both premises No.91-A, Mahatma Gandhi Road, as well as 6-A, Sambhu Chatterjee Street, and that the said two premises were inseparable. Both the Courts, accordingly, rejected the plea of the Appellant that the suit was not maintainable as the description of the suit property did not tally with the description of the property in the lease deed. Consequently, both the Courts allowed the prayer of the Respondent/Plaintiff to rectify the schedule of the lease deed to correct the mis- description of the suit property therein, as there was no doubt as to the identity of the suit property on which Grace Cinema Hall was situate, and the building erected on the two plots was inseparable.28. In the facts of the case, we see no reason to interfere with the decision of the High Court in this regard.29. The point relating to a portion of the demised premises being a Thika Tenancy and thus covered by the provisions of the Calcutta Thika Tenancy (Acquisition and Regulation) Act, 1981, was raised before the Division Bench of the High Court, which, however, negated such contention upon holding that the Respondents were not Thika Tenants since the building had been constructed on the land in question before the Calcutta Thika Tenancy Act, 1949, came into operation. Placing reliance on the doctrine of separation of possession from ownership, the Division Bench further held that the Appellant had failed to establish that the Respondents or their predecessors-in-interest were Thika Tenants of the suit property. The Division Bench also held that even after execution of the lease deed in favour of the Respondents, the lessor remained the owner of the property, whereas the Respondents father merely got the right to enjoyment of the property and could not, therefore, be said to be the Thika Tenant within the meaning of the definition given in the subsequent legislations. On such reasoning, the Division Bench rejected the application filed on behalf of the Appellant under Order XLI Rule 27 CPC to bring on record subsequent facts to prove his status as a tenant of a portion of the structure in relation to which the Appellant had acquired the status of a Bharatia after the acquisition of Thika Tenancies under the 1981 Act.30. The law relating to Thika Tenancies in relation to Calcutta and Howrah, as it existed prior to the Acquisition Act of 1981, was the Calcutta Thika Tenancy Act, 1949, which excluded leases of land exceeding 12 years duration. The instant lease being one for 20 years, the same stood excluded from the operation of the 1949 Act, when it was executed. In any event, having been granted a lease for a period of twenty one years in respect of the building standing on the suit premises, comprising premises No.91-A, Mahatma Gandhi Road and 6-A, Sambhu Chatterjee Street, Kolkata, in which the Grace Cinema was located, the Appellant could never claim to be a Thika Tenant in respect of the suit premises as defined either under the Calcutta Thika Tenancy Act, the Calcutta Thika and other Tenancies and Lands (Acquisition and Regulation) Act, 1981, as well as The West Bengal (Acquisition and Regulation) Act, 2001.31. As has been indicated hereinbefore, aer the Calcutta Thika Tenancy Act, 1949, was defined to mean any person who, inter alia, held, whether under a written lease or otherwise, land under another person and has erected or acquired by purchase or gift any structure on such land for a residential, manufacturing or business purpose and includes the successors-in-interest of such person, except for the exceptions indicated in Sub-Section (5) of Section 2 of the said Act. As also indicated hereinbefore, the aforesaid Act stood repealed by the Calcutta Thika Tenancy and Other Tenancies and Lands (Acquisition and Regulation) Act, 1981, which provided for the acquisition of interest of landlords in respect of lands comprised in Thika Tenancies and certain other tenancies and other lands in Kolkata and Howrah for development and equitable utilization of such lands. In the said Act, aas been defined to mean any person who occupies, whether under a written lease or otherwise land under another person and is or but for a special contract liable to pay rent, at a monthly or periodical rate, for the land to the said person and has erected or acquired by purchase or gift any structure on such land for residential, manufacturing or business purpose and includes the successors-in-interest of such person. What is significant in the definition of Thika Tenant under the 1981 Act is the persons who had been excluded from the definition in the 1949 Act, were also brought within the ambit of the 1981 Act. Consequently, certain lands which were earlier excluded from the definition of, were now brought within its ambit.32. The circumstances were further altered with the enactment of the West Bengal Thika Tenancy (Acquisition & Regulation) Act, 2001, to provide for the acquisition of interests of landlords in respect of lands comprised in Thika Tenancies and certain other tenancies in Kolkata and Howrah and other Municipalities of West Bengal for development and equitable utilization of such lands with a view to sub-serve the common good. It is clear that the main object of the 2001 Act was to extend the acquisition of lands beyond Kolkata and Howrah, in other Municipalities of West Bengal, for development and proper utilization of such lands.33. The Appellant does not come within the ambit of any of the definitions under the aforesaid three Acts having been granted a lease of the structures which had already been erected on the lands long before the coming into operation of either the 1949 Act or the 1981 Act or even the 2001 Act. Consequently, the provisions of the West Bengal Premises Tenancy Act, 1956, will not also be applicable to the Appellant, whose lease stood excluded from the operation of the aforesaid Act under Section 3 thereof. Consequently, the Appellants application under Order XLI Rule 27 CPC was quite rightly rejected by the High Court.
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T. A. Krishnaswamy Vs. State Of Madras | Sarkar, J.1. The appellant was convicted by a learned Magistrate under S. 18 (a)(ii) read with S. 27 of the Drugs Act, 1940 for having manufactured for sale and also exhibited for sale a drug known as OKSAL which did not contain the ingredients in the proportion mentioned in the label pasted on the contained of the drug. The Magistrate sentenced him to pay a fine of Rs. 125 and in default of payment of the fine, to rigorous imprisonment for one month. On appeal by the appellant to the Sessions Judge, that conviction was set aside and the appellant was acquitted. On appeal by the State to the High Court of Madras, the judgment of the learned Sessions Judge was set aside and the conviction and sentence passed by the learned Magistrate were restored. Hence the present appeal by special leave.2. The prosecution produced in evidence of the charge that the drug was misbranded within the meaning of S. 18 (a) (ii), that is, its label bore a statement which was false as being in variance with the components of the drug a certificate to that effect given by the Government Analyst. The label stated that the drug contained Benozoic acid, Salicylic acid, Zinc Oxide and Boric acid in the proportions specified. The report of the Analyst showed that the drug did not contain these substances in the proportion indicated but were deficient as follows: Benzoic Acid by 15.5 per cent, Salicylic acid by 25 per cent, Zinc Oxide by 25 per cent and Boric acid by 46.3 per cent.3. The only question is whether thus report was admissible in evidence to prove that the contents of the drug were so at variance with the statement on the lable and therefore the drug had been misbranded. Sub-section (3) of S. 25 of the Act states that the report of the Public Analyst shall be evidence of the facts stated therein and such evidence shall be conclusive unless the accused person adduced evidence to the contrary in the manner laid down in it. The appellant produced no such evidence. The report has however to be in the form prescribed before it can be admissible in evidence. The contention of the appellant is that the report was not in such form and hence was not admissible in evidence. This contention was accepted by the Sessions Judge but rejected by the other two courts below.4. Rule 46 of the rules made under the Act provides that the Government Analyst shall "after the test or analysis has been completed forthwith supply to the Inspector a report in triplicate in Form 13 of the result of test or analysis together with full protocols of the tests applied This is the prescribed from of the report Head 7 of Form 13 is in these words: "Results of test or analysis with protocols of tests applied. It appears that the Drugs Inspector who obtained the samples from the appellants shop duly forwarded a part of these to the Government Analyst with a letter stating that they were sent for "test or analysis.5. Now, the report of the Analyst did not state the protocols of any test. It is said that R. 46 and Form 13 indicated that the protocols of the tests applied had to be stated in the report. The contention is that in the absence of the protocols the report was not in the prescribed form and was hence not admissible in evidence. It appears that protocols of test means the details of the process of test.6. The question then is : Do R. 46 and Form 13 require that in the present case the protocols of tests had to be stated? We do not think they do. Obviously, the rule and the form contemplate analysis and test is two different things, for otherwise both words would not have been mentioned nor the word or been put between them. It is true that the rule and the form require that the protocols of a test should be stated. They do not require any protocols to be stated in the report of an analysis. Now in the present case what the report did was only to give the result of the analysis. It did not give the result of any test. Nor does it say that any test had been carried out. Indeed no dispute exists as to the components constituting the drug, the only dispute being as to the quantities in which they were so contained. The report only stated the quantities of them found on analysis. That being so, in our view, the report is in the prescribed form and is fully admissible in evidence.7. The Inspector in his letter to the Analyst no doubt stated that the sample was sent to him for "test or analysis But what the Analyst did was only to make an analysis. It is irrelevant to consider whether he should also have carried out a test Even if he should have and did not, that would not prevent the report of the result of the analysis from being admitted in evidence. That report would none the less be conclusive evidence under S. 25(3) of the Act.8. Our attention was drawn to the case of Raj Kishan v. The State, AIR 1960 All 460 . There it was observed that when a report did not state the protocols of the test applied, it could not be said to be a report in the prescribed form. It is not clear from the judgment whether the report in that case purported to be the report of a test or of an analysis. If that case intended to hold that no report of an analysis is in the prescribed form where the protocols are not stated, we are unable to agree with it.9 | 0[ds]5. Now, the report of the Analyst did not state the protocols of any test. It is said that R. 46 and Form 13 indicated that the protocols of the tests applied had to be stated in the report. The contention is that in the absence of the protocols the report was not in the prescribed form and was hence not admissible in evidence. It appears that protocols of test means the details of the process of test.6.The question then is : Do R. 46 and Form 13 require that in the present case the protocols of tests had to be stated?We do not think they do. Obviously, the rule and the form contemplate analysis and test is two different things, for otherwise both words would not have been mentioned nor the word or been put between them. It is true that the rule and the form require that the protocols of a test should be stated. They do not require any protocols to be stated in the report of an analysis. Now in the present case what the report did was only to give the result of the analysis. It did not give the result of any test. Nor does it say that any test had been carried out. Indeed no dispute exists as to the components constituting the drug, the only dispute being as to the quantities in which they were so contained. The report only stated the quantities of them found on analysis. That being so, in our view, the report is in the prescribed form and is fully admissible in evidence.7. The Inspector in his letter to the Analyst no doubt stated that the sample was sent to him for "test or analysis But what the Analyst did was only to make an analysis. It is irrelevant to consider whether he should also have carried out a test Even if he should have and did not, that would not prevent the report of the result of the analysis from being admitted in evidence. That report would none the less be conclusive evidence under S. 25(3) of the Act.8. Our attention was drawn to the case of Raj Kishan v. The State, AIR 1960 All 460 . There it was observed that when a report did not state the protocols of the test applied, it could not be said to be a report in the prescribed form. It is not clear from the judgment whether the report in that case purported to be the report of a test or of an analysis. If that case intended to hold that no report of an analysis is in the prescribed form where the protocols are not stated, we are unable to agree with it. | 0 | 1,051 | 495 | ### 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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Sarkar, J.1. The appellant was convicted by a learned Magistrate under S. 18 (a)(ii) read with S. 27 of the Drugs Act, 1940 for having manufactured for sale and also exhibited for sale a drug known as OKSAL which did not contain the ingredients in the proportion mentioned in the label pasted on the contained of the drug. The Magistrate sentenced him to pay a fine of Rs. 125 and in default of payment of the fine, to rigorous imprisonment for one month. On appeal by the appellant to the Sessions Judge, that conviction was set aside and the appellant was acquitted. On appeal by the State to the High Court of Madras, the judgment of the learned Sessions Judge was set aside and the conviction and sentence passed by the learned Magistrate were restored. Hence the present appeal by special leave.2. The prosecution produced in evidence of the charge that the drug was misbranded within the meaning of S. 18 (a) (ii), that is, its label bore a statement which was false as being in variance with the components of the drug a certificate to that effect given by the Government Analyst. The label stated that the drug contained Benozoic acid, Salicylic acid, Zinc Oxide and Boric acid in the proportions specified. The report of the Analyst showed that the drug did not contain these substances in the proportion indicated but were deficient as follows: Benzoic Acid by 15.5 per cent, Salicylic acid by 25 per cent, Zinc Oxide by 25 per cent and Boric acid by 46.3 per cent.3. The only question is whether thus report was admissible in evidence to prove that the contents of the drug were so at variance with the statement on the lable and therefore the drug had been misbranded. Sub-section (3) of S. 25 of the Act states that the report of the Public Analyst shall be evidence of the facts stated therein and such evidence shall be conclusive unless the accused person adduced evidence to the contrary in the manner laid down in it. The appellant produced no such evidence. The report has however to be in the form prescribed before it can be admissible in evidence. The contention of the appellant is that the report was not in such form and hence was not admissible in evidence. This contention was accepted by the Sessions Judge but rejected by the other two courts below.4. Rule 46 of the rules made under the Act provides that the Government Analyst shall "after the test or analysis has been completed forthwith supply to the Inspector a report in triplicate in Form 13 of the result of test or analysis together with full protocols of the tests applied This is the prescribed from of the report Head 7 of Form 13 is in these words: "Results of test or analysis with protocols of tests applied. It appears that the Drugs Inspector who obtained the samples from the appellants shop duly forwarded a part of these to the Government Analyst with a letter stating that they were sent for "test or analysis.5. Now, the report of the Analyst did not state the protocols of any test. It is said that R. 46 and Form 13 indicated that the protocols of the tests applied had to be stated in the report. The contention is that in the absence of the protocols the report was not in the prescribed form and was hence not admissible in evidence. It appears that protocols of test means the details of the process of test.6. The question then is : Do R. 46 and Form 13 require that in the present case the protocols of tests had to be stated? We do not think they do. Obviously, the rule and the form contemplate analysis and test is two different things, for otherwise both words would not have been mentioned nor the word or been put between them. It is true that the rule and the form require that the protocols of a test should be stated. They do not require any protocols to be stated in the report of an analysis. Now in the present case what the report did was only to give the result of the analysis. It did not give the result of any test. Nor does it say that any test had been carried out. Indeed no dispute exists as to the components constituting the drug, the only dispute being as to the quantities in which they were so contained. The report only stated the quantities of them found on analysis. That being so, in our view, the report is in the prescribed form and is fully admissible in evidence.7. The Inspector in his letter to the Analyst no doubt stated that the sample was sent to him for "test or analysis But what the Analyst did was only to make an analysis. It is irrelevant to consider whether he should also have carried out a test Even if he should have and did not, that would not prevent the report of the result of the analysis from being admitted in evidence. That report would none the less be conclusive evidence under S. 25(3) of the Act.8. Our attention was drawn to the case of Raj Kishan v. The State, AIR 1960 All 460 . There it was observed that when a report did not state the protocols of the test applied, it could not be said to be a report in the prescribed form. It is not clear from the judgment whether the report in that case purported to be the report of a test or of an analysis. If that case intended to hold that no report of an analysis is in the prescribed form where the protocols are not stated, we are unable to agree with it.9
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5. Now, the report of the Analyst did not state the protocols of any test. It is said that R. 46 and Form 13 indicated that the protocols of the tests applied had to be stated in the report. The contention is that in the absence of the protocols the report was not in the prescribed form and was hence not admissible in evidence. It appears that protocols of test means the details of the process of test.6.The question then is : Do R. 46 and Form 13 require that in the present case the protocols of tests had to be stated?We do not think they do. Obviously, the rule and the form contemplate analysis and test is two different things, for otherwise both words would not have been mentioned nor the word or been put between them. It is true that the rule and the form require that the protocols of a test should be stated. They do not require any protocols to be stated in the report of an analysis. Now in the present case what the report did was only to give the result of the analysis. It did not give the result of any test. Nor does it say that any test had been carried out. Indeed no dispute exists as to the components constituting the drug, the only dispute being as to the quantities in which they were so contained. The report only stated the quantities of them found on analysis. That being so, in our view, the report is in the prescribed form and is fully admissible in evidence.7. The Inspector in his letter to the Analyst no doubt stated that the sample was sent to him for "test or analysis But what the Analyst did was only to make an analysis. It is irrelevant to consider whether he should also have carried out a test Even if he should have and did not, that would not prevent the report of the result of the analysis from being admitted in evidence. That report would none the less be conclusive evidence under S. 25(3) of the Act.8. Our attention was drawn to the case of Raj Kishan v. The State, AIR 1960 All 460 . There it was observed that when a report did not state the protocols of the test applied, it could not be said to be a report in the prescribed form. It is not clear from the judgment whether the report in that case purported to be the report of a test or of an analysis. If that case intended to hold that no report of an analysis is in the prescribed form where the protocols are not stated, we are unable to agree with it.
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Vinod K. Chawla Vs. Union of India and Ors | Court and it was observed that consulting the authority which initiated the proposal can never be said to be an unwarranted exercise. It was further emphasized that whether the delay in considering the representation has been properly explained or not would depend upon the facts of each case and cannot be judged in vacuum. Similarly, in Birendra Kumar Rai vs. Union of India & Ors. AIR 1993 SC 962 , the petitioner made a representation against his detention on 22.12.1990 which was rejected by the Central Government after a month on 25.1.1991. It was observed that the explanation offered for the delay in consideration of the representation was not such from which an inference of inaction or callousness on the part of the authorities could be inferred and accordingly the challenge on the ground of delay was rejected. The subsequent decisions of this Court are also on the same lines and we do not consider it necessary to refer to them as the principle is well settled that there should be no inaction or lethargy in consideration of the representation and where there is a proper explanation for the time taken in disposal of representation even though it may be long, the continued detention of the detenu would not be rendered illegal in any manner. 12. The grounds of detention in the present case are a long one running into 35 paragraphs which were accompanied by 82 documents running into 447 pages. The representation made by the appellant was also a fairly long one. The representation made by the appellant on 24.3.1998 was received in the Ministry on 27.3.1998. The comments of the sponsoring authority were called on 30.3.1998 which were received on 17.4.1998. The comments were placed before the Secretary (R) through the A.D.G. on 22.4.1998 (18th and 19th being holidays). The decision of the Central Government was taken and communicated on 29.4.1998 (25th and 26th being holidays). The representation was also considered by the detaining authority in the meantime and was rejected on 21.4.1998. In the additional affidavit filed on behalf of the sponsoring authority before the High Court, it was stated that the representation was received by them on 2.4.1998 and the comments were dispatched on 17.4.1998. During this period, there were holidays on 4th, 5th, 8th to 12th April, and only seven working days were available. Again there were holidays on 18th, 19th, 25th and 26th April. Having regard to the facts and circumstances of the case, we are clearly of the opinion that the entire time taken in consideration and disposal of the representation made by the appellant has been fully explained and it cannot be said by any stretch of imagination that there was any inordinate delay or unexplained delay in considering the representation made by the appellant. The challenge to the detention order made on the ground of delay in consideration of the representation made by the appellant has no substance and deserves to be rejected. 13. It was lastly urged that the searches of the premises of the appellant were conducted on 20.12.1996 and 30.12.1996 and his statement was also recorded between 19.12.1996 and 30.1.1997, but he was taken into custody after more than a year on 12.3.1998 and on account of this long delay the live and proximate link in the alleged activities of the appellant and the date of his actual detention was snapped and there was no reasonable cause for detaining the appellant. The argument raised is wholly misconceived. The detention order was passed on 12.2.1997 soon after searches were conducted and his statement had been recorded but as the appellant was evading arrest and was absconding, it could only be served on 12.3.1998 when he was taken into custody. In the counter affidavit filed in the High Court on behalf of the respondents it was averred that continuous efforts were made both by the police authorities as well as the officers of DRI to arrest the appellant. A notice under Section 7(1)(b) of COFEPOSA was published in Official Gazette on 23.3.1997 and also in leading English and Hindi newspapers on 4.10.1997. An application under Section 7(1)(a) of the act was also moved before the Court of ACMM for initiating proceedings under Section 82 and 83 Cr.P.C. where proclamation was made on 3.12.1997 to appear on 9.1.1998. An order of attachment under Section 83 Cr.P.C. was also issued which was brought to the notice of his family members and only then the appellant could be apprehended and detained on 12.3.1998. Reference has also been made to three letters dated 28.2.1997, 17.7.1997 and 5.9.1997 from the Police Headquarters regarding the efforts made to serve the detenu and copies of those letters were placed on record. Every time the family members of the appellant reported before the police that the appellant had left the house on 12.3.1997 to an unknown place and that his whereabouts were not known. An additional affidavit of Assistant Director of Revenue Intelligence was also filed before the High Court wherein it was averred that 11 summons were issued to the appellant during 20.2.1997 and 26.11.1997 and a red alert was also issued by the DRI on 5.3.1997. These facts conclusively established that the detention order which was passed on 12.2.1997 soon after the searches had been made and the statement of the appellant had been recorded, could not be served in spite of every possible attempt had been made to serve him as the appellant was absconding. Where a person himself evades service of detention order, it is not open to him to contend that in view of the long period which has elapsed between the offending activities and the actual arrest and detention, the vital link had snapped and there was no ground for actually detaining him. An otherwise valid detention order cannot be rendered invalid on account of the own act of the detenu of evading arrest and making himself scarce. The contention thus raised has absolutely no merit and has to be rejected. | 0[ds]8. We would like to clarify here that the law does not require that every document or material in possession of sponsoring authority must necessarily be placed by him before the detaining authority and in every case where any such document or material is not placed by the sponsoring authority before the detaining authority, the formation of opinion and the subjective satisfaction of the detaining authority would get vitiated. This view has been taken in several decisions of this Court10. The contention raised cannot be judged by any straight jacket formula divorced from facts. This has to be examined with reference to the facts of each case having regard to the volume and contents of the grounds of detention, the documents supplied along with the grounds, the inquiry to be made by the officers of different departments, the nature of the inquiry, the time required for examining the various pleas raised, the time required in recording the comments by the authorities of the departments concerned, and so on12. The grounds of detention in the present case are a long one running into 35 paragraphs which were accompanied by 82 documents running into 447 pages. The representation made by the appellant was also a fairly long one. The representation made by the appellant on 24.3.1998 was received in the Ministry on 27.3.1998. The comments of the sponsoring authority were called on 30.3.1998 which were received on 17.4.1998. The comments were placed before the Secretary (R) through the A.D.G. on 22.4.1998 (18th and 19th being holidays). The decision of the Central Government was taken and communicated on 29.4.1998 (25th and 26th being holidays). The representation was also considered by the detaining authority in the meantime and was rejected on 21.4.1998. In the additional affidavit filed on behalf of the sponsoring authority before the High Court, it was stated that the representation was received by them on 2.4.1998 and the comments were dispatched on 17.4.1998. During this period, there were holidays on 4th, 5th, 8th to 12th April, and only seven working days were available. Again there were holidays on 18th, 19th, 25th and 26th April. Having regard to the facts and circumstances of the case, we are clearly of the opinion that the entire time taken in consideration and disposal of the representation made by the appellant has been fully explained and it cannot be said by any stretch of imagination that there was any inordinate delay or unexplained delay in considering the representation made by the appellant. The challenge to the detention order made on the ground of delay in consideration of the representation made by the appellant has no substance and deserves to be rejected13. It was lastly urged that the searches of the premises of the appellant were conducted on 20.12.1996 and 30.12.1996 and his statement was also recorded between 19.12.1996 and 30.1.1997, but he was taken into custody after more than a year on 12.3.1998 and on account of this long delay the live and proximate link in the alleged activities of the appellant and the date of his actual detention was snapped and there was no reasonable cause for detaining the appellant. The argument raised is wholly misconceived. The detention order was passed on 12.2.1997 soon after searches were conducted and his statement had been recorded but as the appellant was evading arrest and was absconding, it could only be served on 12.3.1998 when he was taken into custody. In the counter affidavit filed in the High Court on behalf of the respondents it was averred that continuous efforts were made both by the police authorities as well as the officers of DRI to arrest the appellant. A notice under Section 7(1)(b) of COFEPOSA was published in Official Gazette on 23.3.1997 and also in leading English and Hindi newspapers on 4.10.1997. An application under Section 7(1)(a) of the act was also moved before the Court of ACMM for initiating proceedings under Section 82 and 83 Cr.P.C. where proclamation was made on 3.12.1997 to appear on 9.1.1998. An order of attachment under Section 83 Cr.P.C. was also issued which was brought to the notice of his family members and only then the appellant could be apprehended and detained on 12.3.1998. Reference has also been made to three letters dated 28.2.1997, 17.7.1997 and 5.9.1997 from the Police Headquarters regarding the efforts made to serve the detenu and copies of those letters were placed on record. Every time the family members of the appellant reported before the police that the appellant had left the house on 12.3.1997 to an unknown place and that his whereabouts were not known. An additional affidavit of Assistant Director of Revenue Intelligence was also filed before the High Court wherein it was averred that 11 summons were issued to the appellant during 20.2.1997 and 26.11.1997 and a red alert was also issued by the DRI on 5.3.1997. These facts conclusively established that the detention order which was passed on 12.2.1997 soon after the searches had been made and the statement of the appellant had been recorded, could not be served in spite of every possible attempt had been made to serve him as the appellant was absconding. Where a person himself evades service of detention order, it is not open to him to contend that in view of the long period which has elapsed between the offending activities and the actual arrest and detention, the vital link had snapped and there was no ground for actually detaining him. An otherwise valid detention order cannot be rendered invalid on account of the own act of the detenu of evading arrest and making himself scarce. The contention thus raised has absolutely no merit and has to be rejected. | 0 | 5,404 | 1,031 | ### Instruction:
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Court and it was observed that consulting the authority which initiated the proposal can never be said to be an unwarranted exercise. It was further emphasized that whether the delay in considering the representation has been properly explained or not would depend upon the facts of each case and cannot be judged in vacuum. Similarly, in Birendra Kumar Rai vs. Union of India & Ors. AIR 1993 SC 962 , the petitioner made a representation against his detention on 22.12.1990 which was rejected by the Central Government after a month on 25.1.1991. It was observed that the explanation offered for the delay in consideration of the representation was not such from which an inference of inaction or callousness on the part of the authorities could be inferred and accordingly the challenge on the ground of delay was rejected. The subsequent decisions of this Court are also on the same lines and we do not consider it necessary to refer to them as the principle is well settled that there should be no inaction or lethargy in consideration of the representation and where there is a proper explanation for the time taken in disposal of representation even though it may be long, the continued detention of the detenu would not be rendered illegal in any manner. 12. The grounds of detention in the present case are a long one running into 35 paragraphs which were accompanied by 82 documents running into 447 pages. The representation made by the appellant was also a fairly long one. The representation made by the appellant on 24.3.1998 was received in the Ministry on 27.3.1998. The comments of the sponsoring authority were called on 30.3.1998 which were received on 17.4.1998. The comments were placed before the Secretary (R) through the A.D.G. on 22.4.1998 (18th and 19th being holidays). The decision of the Central Government was taken and communicated on 29.4.1998 (25th and 26th being holidays). The representation was also considered by the detaining authority in the meantime and was rejected on 21.4.1998. In the additional affidavit filed on behalf of the sponsoring authority before the High Court, it was stated that the representation was received by them on 2.4.1998 and the comments were dispatched on 17.4.1998. During this period, there were holidays on 4th, 5th, 8th to 12th April, and only seven working days were available. Again there were holidays on 18th, 19th, 25th and 26th April. Having regard to the facts and circumstances of the case, we are clearly of the opinion that the entire time taken in consideration and disposal of the representation made by the appellant has been fully explained and it cannot be said by any stretch of imagination that there was any inordinate delay or unexplained delay in considering the representation made by the appellant. The challenge to the detention order made on the ground of delay in consideration of the representation made by the appellant has no substance and deserves to be rejected. 13. It was lastly urged that the searches of the premises of the appellant were conducted on 20.12.1996 and 30.12.1996 and his statement was also recorded between 19.12.1996 and 30.1.1997, but he was taken into custody after more than a year on 12.3.1998 and on account of this long delay the live and proximate link in the alleged activities of the appellant and the date of his actual detention was snapped and there was no reasonable cause for detaining the appellant. The argument raised is wholly misconceived. The detention order was passed on 12.2.1997 soon after searches were conducted and his statement had been recorded but as the appellant was evading arrest and was absconding, it could only be served on 12.3.1998 when he was taken into custody. In the counter affidavit filed in the High Court on behalf of the respondents it was averred that continuous efforts were made both by the police authorities as well as the officers of DRI to arrest the appellant. A notice under Section 7(1)(b) of COFEPOSA was published in Official Gazette on 23.3.1997 and also in leading English and Hindi newspapers on 4.10.1997. An application under Section 7(1)(a) of the act was also moved before the Court of ACMM for initiating proceedings under Section 82 and 83 Cr.P.C. where proclamation was made on 3.12.1997 to appear on 9.1.1998. An order of attachment under Section 83 Cr.P.C. was also issued which was brought to the notice of his family members and only then the appellant could be apprehended and detained on 12.3.1998. Reference has also been made to three letters dated 28.2.1997, 17.7.1997 and 5.9.1997 from the Police Headquarters regarding the efforts made to serve the detenu and copies of those letters were placed on record. Every time the family members of the appellant reported before the police that the appellant had left the house on 12.3.1997 to an unknown place and that his whereabouts were not known. An additional affidavit of Assistant Director of Revenue Intelligence was also filed before the High Court wherein it was averred that 11 summons were issued to the appellant during 20.2.1997 and 26.11.1997 and a red alert was also issued by the DRI on 5.3.1997. These facts conclusively established that the detention order which was passed on 12.2.1997 soon after the searches had been made and the statement of the appellant had been recorded, could not be served in spite of every possible attempt had been made to serve him as the appellant was absconding. Where a person himself evades service of detention order, it is not open to him to contend that in view of the long period which has elapsed between the offending activities and the actual arrest and detention, the vital link had snapped and there was no ground for actually detaining him. An otherwise valid detention order cannot be rendered invalid on account of the own act of the detenu of evading arrest and making himself scarce. The contention thus raised has absolutely no merit and has to be rejected.
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8. We would like to clarify here that the law does not require that every document or material in possession of sponsoring authority must necessarily be placed by him before the detaining authority and in every case where any such document or material is not placed by the sponsoring authority before the detaining authority, the formation of opinion and the subjective satisfaction of the detaining authority would get vitiated. This view has been taken in several decisions of this Court10. The contention raised cannot be judged by any straight jacket formula divorced from facts. This has to be examined with reference to the facts of each case having regard to the volume and contents of the grounds of detention, the documents supplied along with the grounds, the inquiry to be made by the officers of different departments, the nature of the inquiry, the time required for examining the various pleas raised, the time required in recording the comments by the authorities of the departments concerned, and so on12. The grounds of detention in the present case are a long one running into 35 paragraphs which were accompanied by 82 documents running into 447 pages. The representation made by the appellant was also a fairly long one. The representation made by the appellant on 24.3.1998 was received in the Ministry on 27.3.1998. The comments of the sponsoring authority were called on 30.3.1998 which were received on 17.4.1998. The comments were placed before the Secretary (R) through the A.D.G. on 22.4.1998 (18th and 19th being holidays). The decision of the Central Government was taken and communicated on 29.4.1998 (25th and 26th being holidays). The representation was also considered by the detaining authority in the meantime and was rejected on 21.4.1998. In the additional affidavit filed on behalf of the sponsoring authority before the High Court, it was stated that the representation was received by them on 2.4.1998 and the comments were dispatched on 17.4.1998. During this period, there were holidays on 4th, 5th, 8th to 12th April, and only seven working days were available. Again there were holidays on 18th, 19th, 25th and 26th April. Having regard to the facts and circumstances of the case, we are clearly of the opinion that the entire time taken in consideration and disposal of the representation made by the appellant has been fully explained and it cannot be said by any stretch of imagination that there was any inordinate delay or unexplained delay in considering the representation made by the appellant. The challenge to the detention order made on the ground of delay in consideration of the representation made by the appellant has no substance and deserves to be rejected13. It was lastly urged that the searches of the premises of the appellant were conducted on 20.12.1996 and 30.12.1996 and his statement was also recorded between 19.12.1996 and 30.1.1997, but he was taken into custody after more than a year on 12.3.1998 and on account of this long delay the live and proximate link in the alleged activities of the appellant and the date of his actual detention was snapped and there was no reasonable cause for detaining the appellant. The argument raised is wholly misconceived. The detention order was passed on 12.2.1997 soon after searches were conducted and his statement had been recorded but as the appellant was evading arrest and was absconding, it could only be served on 12.3.1998 when he was taken into custody. In the counter affidavit filed in the High Court on behalf of the respondents it was averred that continuous efforts were made both by the police authorities as well as the officers of DRI to arrest the appellant. A notice under Section 7(1)(b) of COFEPOSA was published in Official Gazette on 23.3.1997 and also in leading English and Hindi newspapers on 4.10.1997. An application under Section 7(1)(a) of the act was also moved before the Court of ACMM for initiating proceedings under Section 82 and 83 Cr.P.C. where proclamation was made on 3.12.1997 to appear on 9.1.1998. An order of attachment under Section 83 Cr.P.C. was also issued which was brought to the notice of his family members and only then the appellant could be apprehended and detained on 12.3.1998. Reference has also been made to three letters dated 28.2.1997, 17.7.1997 and 5.9.1997 from the Police Headquarters regarding the efforts made to serve the detenu and copies of those letters were placed on record. Every time the family members of the appellant reported before the police that the appellant had left the house on 12.3.1997 to an unknown place and that his whereabouts were not known. An additional affidavit of Assistant Director of Revenue Intelligence was also filed before the High Court wherein it was averred that 11 summons were issued to the appellant during 20.2.1997 and 26.11.1997 and a red alert was also issued by the DRI on 5.3.1997. These facts conclusively established that the detention order which was passed on 12.2.1997 soon after the searches had been made and the statement of the appellant had been recorded, could not be served in spite of every possible attempt had been made to serve him as the appellant was absconding. Where a person himself evades service of detention order, it is not open to him to contend that in view of the long period which has elapsed between the offending activities and the actual arrest and detention, the vital link had snapped and there was no ground for actually detaining him. An otherwise valid detention order cannot be rendered invalid on account of the own act of the detenu of evading arrest and making himself scarce. The contention thus raised has absolutely no merit and has to be rejected.
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Satya Jain(D) Vs. Anis Ahmed Rushdie(D) Tr.Lrs | clause in the agreement which had obliged the Plaintiff No.1 to make any further payment after the initial part payment of Rs.50,000/-. The obligation of the Plaintiff No.1 was to pay any further amount(s) to the Income-Tax authorities, at the request of the defendant, in order to facilitate the issuance of the Tax Clearance Certificate. No payment to the defendant beyond the initial amount of Rs.50,000/- was contemplated by all. The above would appear to be consciously intended by the parties so as to exclude the possibility of any substantial monetary loss to the plaintiff in the event the defendant is to resile from his commitment to execute the sale document. The intent of the parties, acting as prudent businessmen, appears to be clear. An obvious intent to exclude any obligation of the plaintiff to pay any further amount (beyond Rs.50,000/-) to the defendant is clearly discernible. Consequently, resort to the principle of business efficacy by the High Court to read such an implied term in the agreement dated 22.12.1970, in our considered view, was not warranted in the facts and circumstances of the present case. 25. The principles of law on the basis of which the readiness and willingness of the plaintiff in a suit for specific performance is to be judged finds an elaborate enumeration in a recent decision of this Court in J.P. Builders and another v. A. Ramadas Rao and another [(2011) 1 SCC 429] . In the said decision several earlier cases i.e. in R.C. Chandiok vs. Chuni Lal Sabharwal [(1970) 3 SCC 140] , N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao [(1995) 5 SCC 115] and P.D Souza vs. Shondrilo Naidu [(2004) 6 SCC 649] have been noticed. To sum up, no straitjacket formula can be laid down and the test of readiness and willingness of the plaintiff would depend on his overall conduct i.e. prior and subsequent to the filing of the suit which has also to be viewed in the light of the conduct of the defendant. Having considered the matter in the above perspective we are left with no doubt whatsoever that in the present case the Plaintiff No.1 was, at all times, ready and willing to perform his part of the contract. On the contrary it is the defendant who had defaulted in the execution of the sale document. The insistence of the defendant on further payments by the plaintiff directly to him and not to the Income Tax authorities as agreed upon was not at all justified and no blame can be attributed to the plaintiff for not complying with the said demand(s) of the defendant. 26. Having arrived at the above conclusion it is wholly unnecessary for us to consider the arguments advanced on behalf of the appellants with regard to the provisions of the Foreign Exchange Regulation Act, 1973 (FERA) in the light of which it had been contended that it was not open in law for the plaintiff to comply with the demands for the additional amount(s) made by the defendant. The failure of the defendant to bring on record the draft sale deed which had to accompany the application for the required Tax Clearance Certificate, an aspect highlighted on behalf of the appellants to show the absence of a genuine desire of the defendant to go through the transaction, also, would not require any consideration for the above stated reason. 27. The ultimate question that has now to be considered is whether the plaintiff should be held to be entitled to a decree for specific performance of the agreement of 22.12.1970. The long efflux of time (over 40 years) that has occurred and the galloping value of real estate in the meantime are the twin inhibiting factors in this regard. The same, however, have to be balanced with the fact that the plaintiffs are in no way responsible for the delay that has occurred and their keen participation in the proceedings till date show the live interest on the part of the plaintiffs to have the agreement enforced in law. 28. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasized that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. Such a view has been consistently adopted by this Court. By way of illustration opinions rendered in P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi [(2007) 10 SCC 231] and more recently in Narinderjit Singh v. North Star Estate Promoters Ltd. [(2012) 5 SCC 712] may be usefully recapitulated. 29. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalizing the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour. From another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on date of the order of the final Court. | 1[ds]13. Even going by any of the three different/alternative dates on which the cause of action for the plaintiffs suit had arisen, as conceded by the learned counsel for the respondent, it is evident that the suit was filed beyond the stipulated period of three years from any of the dates of the accrual of the cause of action. However, the plaintiffs have invoked the provisions of Section 15 (5) of the Limitation Act, 1963 to claim the benefit of the exclusion of the period during which the defendant was absent from India. There can, indeed, be no doubt that if the plaintiff is entitled to exclude the period of such absence the bar of limitation will not apply to the present suit. The court, therefore, must make an endeavour to find out the true meaning of the provisions contained in Section 15 (5) of the Limitation Act in order to determine as to whether the plea put forward by the plaintiffs is sustainable in law14. The provisions contained in Section 15 (5) of the Limitation Act, 1963 are pari materia with those in Section 13 of the Indian Limitation Act, 1908. The aforesaid provision of the Act of 1908 has received a full and complete consideration of this Court in P C K Muthia Chettiar & Ors v. V E S Shanmugham Chettair (D) & Anr. [AIR 1969 SC 552 ]. While holding that the words of the Section (Section 13), namely, that time during which the defendant has been absent from India are clear and therefore must be excluded in computing the period of limitation, two earlier decisions in Atul Kristo Bose v. Lyon & Co. [ILR 14 Cal 457 para 6] and Muthukanni Mudaliar v. Andappa Pillai [AIR 1955 Mad 96 ] were also noticed by this Court. The discussion in respect of the aforesaid two earlier decisions which had formed the basis of the conclusions in P C K Muthia Chettiar (Supra), as noticed above, have been set out in paragraph 6 of the judgment which may be profitably extracted below :6. In Atul Kriato Bose v. Lyon & Co. [(1887) ILR 14 Cal 457] the defendants were foreigners and they never came to India on or after the date of the accrual of the cause of action. The Calcutta High Court held that Section 13 applied and that the suit was not barred by limitation. The Court was not impressed with the argument that according to this construction a defendant who was in England when a cause of action against him accrued, and has remained there ever since might be liable after an indefinite time to be sued in a Calcutta court. In Mathukanni v. Andappa [AIR 1955 Mad 96 ] the plaintiff and the defendant who were residents of Mannargudi in India had gone to Kaula Lampur to earn their livelihood, and while there the defendant executed a promissory note to the plaintiff on November 16, 1921. In 1925 the plaintiff brought a suit on the promissory note in the District Munsifs Court of Mannargudi. The cause of action in the suit arose outside India. A Full Bench of the Madras High Court held that the plaintiff was entitled to the benefit of Section 13 and in computing the period of limitation he was entitled to exclude the time during which the defendant was absent in Kaula Lampur. We agree with this decision. The Full Bench rightly overruled the earlier decisions in Ruthinu v. Packiriswami [AIR 1928 Mad 1088 ] and Subramania Chettiar v. Maruthamuthu [AIR 1944 Mad 437 ]. We hold that the suit is not barred by limitation15. In the present case from the evidence on record it is established that till the date of filing of the suit i.e. 03.11.1977, the defendant was in India during following periods:1. from 24.09.1970 to 15.10.1970,2. from 17.12.1970 to 28.12.1970,3. from 16.08.1971 to 11.09.1971,4. from 29.10.1972 to 10.11.1972,5. from 02.09.1977 to 01.10.1977The decision of this Court in P C K Muthia Chettiar (Supra) clearly lays down that the operation of Section 13 of the Limitation Act, 1908 (corresponding to Section 15 (5) of the Limitation Act, 1963) does not make any exception in cases where the cause of action had arisen in a foreign country or in India or in cases in which the defendant was in India or in a foreign country at the time of the accrual of the cause of action. Taking into account the ratio laid down by this Court in P C K Muthia Chettiar (Supra) and the period during which the defendant was absent from India there can be no doubt, whatsoever, that on due application of the provisions of Section 15(5) of the Limitation Act of 1963, the suit filed by the plaintiff was well within time as the period of the absence of the defendant from India has to be excluded while computing the limitation for filing of the suit16. To answer the next question that would arise consequent to our decision on the first issue the clauses of the agreement between the parties will have to be noticed in some detail. The total sale price was agreed at Rs. 3,75,000/out of which a sum of Rs.50,000/had been acknowledged to have been paid by the purchaser(plaintiff No.1) to the vendor (defendant) by means of an account payee cheque. Under clause 4 of the agreement, the vendor was required to obtain, at his own cost, a Wealth Tax clearance certificate to enable the transfer of property to be made and to intimate the said fact along with a copy of the tax clearance certificate to the purchaser not later than 12 months from the date of the agreement. Under Clause 5 of the agreement, the vendor was to execute the sale deed within a period of 15 months from the date of the agreement. The purchaser, in turn, was to pay to the vendor the balance sale consideration after deducting the amount of Rs.50,000/at the time of the registration of the sale deed which was to be within three months after receipt of the necessary intimation that the tax clearance certificate has been obtained along with the copy thereof as contemplated under clause 4 of the agreement. Under Clause 7 of the agreement, the purchaser was obliged to pay to the Income Tax authorities such amount as may be desired by the vendor (not exceeding the balance sale price payable) in order to enable the vendor to get the required Wealth Tax clearance certificate. The aforesaid clause further stipulated that such money as may be paid to the Income Tax authorities, at the request of the vendor and on the vendors account, will be deducted by the purchaser from the balance sale consideration at the time of the execution of the sale deed. It must also be noted that under the terms of the agreement between the parties apart from the payment contemplated by Clause 7 to the authority and in the manner specified therein the purchaser had no obligation to tender any further payment directly to the vendor20. Under the said clause 7 of the agreement, clearly, the obligation of the plaintiff No.1 was to pay to the Income Tax department such sum (not exceeding the balance consideration payable) as may be requested by the defendant. Neither clause 7 nor any other Clause of the agreement had cast upon the plaintiff No.1 a duty to tender any further payment to the defendant or to credit the bank account of the defendant with any further advance amount after payment of the initial amount of Rs.. In as far as the obligation to pay the Income Tax Department as contemplated by clause 7 is concerned it has been already noticed that the plaintiff No.1 had repeatedly asserted in the correspondence referred to above that he was always ready and willing to pay any amount (within the balance consideration payable) to the Income Tax department so that the necessary tax clearance certificate can be issued in favour of the defendant. Nothing has been brought on record by the defendant to show that any demand or request had been made by him to the plaintiff No.1 for payment of any amount to the Income Tax Department21. The High Court, notwithstanding the clear language of clause 7 of the agreement, had invoked the principle of business efficacy to hold that a slight deviation from the plain meaning of the language of clause 7 would be justified so as to read an obligation on the part of plaintiff to pay the further amount of Rs. One lakh as demanded by the defendant instead of insisting on making such further payment(s) only to the Income Tax authorities22. The principle of business efficacy is normally invoked to read a term in an agreement or contract so as to achieve the result or the consequence intended by the parties acting as prudent businessmen. Business efficacy means the power to produce intended results. The classic test of business efficacy was proposed by Lord Justice Bowen in The Moorcock [(1889) 14 PD 64]. This test requires that a term can only be implied if it is necessary to give business efficacy to the contract to avoid such a failure of consideration that the parties cannot as reasonable businessmen have intended. But only the most limited term should then be implied – the bare minimum to achieve this goal. If the contract makes business sense without the term, the courts will not imply the same24. The business efficacy test, therefore, should be applied only in cases where the term that is sought to be read as implied is such which could have been clearly intended by the parties at the time of making of the agreement. In the present case not only the language of clause (7) of agreement dated 22.12.1970 is clear and unambiguous there is no other clause in the agreement which had obliged the Plaintiff No.1 to make any further payment after the initial part payment of Rs.. The obligation of the Plaintiff No.1 was to pay any further amount(s) to thex authorities, at the request of the defendant, in order to facilitate the issuance of the Tax Clearance Certificate. No payment to the defendant beyond the initial amount of Rs.50,000/was contemplated by all. The above would appear to be consciously intended by the parties so as to exclude the possibility of any substantial monetary loss to the plaintiff in the event the defendant is to resile from his commitment to execute the sale document. The intent of the parties, acting as prudent businessmen, appears to be clear. An obvious intent to exclude any obligation of the plaintiff to pay any further amount (beyond) to the defendant is clearly discernible. Consequently, resort to the principle of business efficacy by the High Court to read such an implied term in the agreement dated 22.12.1970, in our considered view, was not warranted in the facts and circumstances of the present case25. The principles of law on the basis of which the readiness and willingness of the plaintiff in a suit for specific performance is to be judged finds an elaborate enumeration in a recent decision of this Court in J.P. Builders and another v. A. Ramadas Rao and another [(2011) 1 SCC 429] . In the said decision several earlier cases i.e. in R.C. Chandiok vs. Chuni Lal Sabharwal [(1970) 3 SCC 140] , N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao [(1995) 5 SCC 115] and P.D Souza vs. Shondrilo Naidu [(2004) 6 SCC 649] have been noticed. To sum up, no straitjacket formula can be laid down and the test of readiness and willingness of the plaintiff would depend on his overall conduct i.e. prior and subsequent to the filing of the suit which has also to be viewed in the light of the conduct of the defendant. Having considered the matter in the above perspective we are left with no doubt whatsoever that in the present case the Plaintiff No.1 was, at all times, ready and willing to perform his part of the contract. On the contrary it is the defendant who had defaulted in the execution of the sale document. The insistence of the defendant on further payments by the plaintiff directly to him and not to the Income Tax authorities as agreed upon was not at all justified and no blame can be attributed to the plaintiff for not complying with the said demand(s) of the defendant28. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasized that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. Such a view has been consistently adopted by this Court. By way of illustration opinions rendered in P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi [(2007) 10 SCC 231] and more recently in Narinderjit Singh v. North Star Estate Promoters Ltd. [(2012) 5 SCC 712] may be usefully recapitulated29. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalizing the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour. From another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on date of the order of the final Court. | 1 | 7,199 | 2,636 | ### Instruction:
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clause in the agreement which had obliged the Plaintiff No.1 to make any further payment after the initial part payment of Rs.50,000/-. The obligation of the Plaintiff No.1 was to pay any further amount(s) to the Income-Tax authorities, at the request of the defendant, in order to facilitate the issuance of the Tax Clearance Certificate. No payment to the defendant beyond the initial amount of Rs.50,000/- was contemplated by all. The above would appear to be consciously intended by the parties so as to exclude the possibility of any substantial monetary loss to the plaintiff in the event the defendant is to resile from his commitment to execute the sale document. The intent of the parties, acting as prudent businessmen, appears to be clear. An obvious intent to exclude any obligation of the plaintiff to pay any further amount (beyond Rs.50,000/-) to the defendant is clearly discernible. Consequently, resort to the principle of business efficacy by the High Court to read such an implied term in the agreement dated 22.12.1970, in our considered view, was not warranted in the facts and circumstances of the present case. 25. The principles of law on the basis of which the readiness and willingness of the plaintiff in a suit for specific performance is to be judged finds an elaborate enumeration in a recent decision of this Court in J.P. Builders and another v. A. Ramadas Rao and another [(2011) 1 SCC 429] . In the said decision several earlier cases i.e. in R.C. Chandiok vs. Chuni Lal Sabharwal [(1970) 3 SCC 140] , N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao [(1995) 5 SCC 115] and P.D Souza vs. Shondrilo Naidu [(2004) 6 SCC 649] have been noticed. To sum up, no straitjacket formula can be laid down and the test of readiness and willingness of the plaintiff would depend on his overall conduct i.e. prior and subsequent to the filing of the suit which has also to be viewed in the light of the conduct of the defendant. Having considered the matter in the above perspective we are left with no doubt whatsoever that in the present case the Plaintiff No.1 was, at all times, ready and willing to perform his part of the contract. On the contrary it is the defendant who had defaulted in the execution of the sale document. The insistence of the defendant on further payments by the plaintiff directly to him and not to the Income Tax authorities as agreed upon was not at all justified and no blame can be attributed to the plaintiff for not complying with the said demand(s) of the defendant. 26. Having arrived at the above conclusion it is wholly unnecessary for us to consider the arguments advanced on behalf of the appellants with regard to the provisions of the Foreign Exchange Regulation Act, 1973 (FERA) in the light of which it had been contended that it was not open in law for the plaintiff to comply with the demands for the additional amount(s) made by the defendant. The failure of the defendant to bring on record the draft sale deed which had to accompany the application for the required Tax Clearance Certificate, an aspect highlighted on behalf of the appellants to show the absence of a genuine desire of the defendant to go through the transaction, also, would not require any consideration for the above stated reason. 27. The ultimate question that has now to be considered is whether the plaintiff should be held to be entitled to a decree for specific performance of the agreement of 22.12.1970. The long efflux of time (over 40 years) that has occurred and the galloping value of real estate in the meantime are the twin inhibiting factors in this regard. The same, however, have to be balanced with the fact that the plaintiffs are in no way responsible for the delay that has occurred and their keen participation in the proceedings till date show the live interest on the part of the plaintiffs to have the agreement enforced in law. 28. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasized that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. Such a view has been consistently adopted by this Court. By way of illustration opinions rendered in P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi [(2007) 10 SCC 231] and more recently in Narinderjit Singh v. North Star Estate Promoters Ltd. [(2012) 5 SCC 712] may be usefully recapitulated. 29. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalizing the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour. From another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on date of the order of the final Court.
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the language of clause 7 would be justified so as to read an obligation on the part of plaintiff to pay the further amount of Rs. One lakh as demanded by the defendant instead of insisting on making such further payment(s) only to the Income Tax authorities22. The principle of business efficacy is normally invoked to read a term in an agreement or contract so as to achieve the result or the consequence intended by the parties acting as prudent businessmen. Business efficacy means the power to produce intended results. The classic test of business efficacy was proposed by Lord Justice Bowen in The Moorcock [(1889) 14 PD 64]. This test requires that a term can only be implied if it is necessary to give business efficacy to the contract to avoid such a failure of consideration that the parties cannot as reasonable businessmen have intended. But only the most limited term should then be implied – the bare minimum to achieve this goal. If the contract makes business sense without the term, the courts will not imply the same24. The business efficacy test, therefore, should be applied only in cases where the term that is sought to be read as implied is such which could have been clearly intended by the parties at the time of making of the agreement. In the present case not only the language of clause (7) of agreement dated 22.12.1970 is clear and unambiguous there is no other clause in the agreement which had obliged the Plaintiff No.1 to make any further payment after the initial part payment of Rs.. The obligation of the Plaintiff No.1 was to pay any further amount(s) to thex authorities, at the request of the defendant, in order to facilitate the issuance of the Tax Clearance Certificate. No payment to the defendant beyond the initial amount of Rs.50,000/was contemplated by all. The above would appear to be consciously intended by the parties so as to exclude the possibility of any substantial monetary loss to the plaintiff in the event the defendant is to resile from his commitment to execute the sale document. The intent of the parties, acting as prudent businessmen, appears to be clear. An obvious intent to exclude any obligation of the plaintiff to pay any further amount (beyond) to the defendant is clearly discernible. Consequently, resort to the principle of business efficacy by the High Court to read such an implied term in the agreement dated 22.12.1970, in our considered view, was not warranted in the facts and circumstances of the present case25. The principles of law on the basis of which the readiness and willingness of the plaintiff in a suit for specific performance is to be judged finds an elaborate enumeration in a recent decision of this Court in J.P. Builders and another v. A. Ramadas Rao and another [(2011) 1 SCC 429] . In the said decision several earlier cases i.e. in R.C. Chandiok vs. Chuni Lal Sabharwal [(1970) 3 SCC 140] , N.P. Thirugnanam vs. Dr. R. Jagan Mohan Rao [(1995) 5 SCC 115] and P.D Souza vs. Shondrilo Naidu [(2004) 6 SCC 649] have been noticed. To sum up, no straitjacket formula can be laid down and the test of readiness and willingness of the plaintiff would depend on his overall conduct i.e. prior and subsequent to the filing of the suit which has also to be viewed in the light of the conduct of the defendant. Having considered the matter in the above perspective we are left with no doubt whatsoever that in the present case the Plaintiff No.1 was, at all times, ready and willing to perform his part of the contract. On the contrary it is the defendant who had defaulted in the execution of the sale document. The insistence of the defendant on further payments by the plaintiff directly to him and not to the Income Tax authorities as agreed upon was not at all justified and no blame can be attributed to the plaintiff for not complying with the said demand(s) of the defendant28. The discretion to direct specific performance of an agreement and that too after elapse of a long period of time, undoubtedly, has to be exercised on sound, reasonable, rational and acceptable principles. The parameters for the exercise of discretion vested by Section 20 of the Specific Relief Act, 1963 cannot be entrapped within any precise expression of language and the contours thereof will always depend on the facts and circumstances of each case. The ultimate guiding test would be the principles of fairness and reasonableness as may be dictated by the peculiar facts of any given case, which features the experienced judicial mind can perceive without any real difficulty. It must however be emphasized that efflux of time and escalation of price of property, by itself, cannot be a valid ground to deny the relief of specific performance. Such a view has been consistently adopted by this Court. By way of illustration opinions rendered in P.S. Ranakrishna Reddy v. M.K. Bhagyalakshmi [(2007) 10 SCC 231] and more recently in Narinderjit Singh v. North Star Estate Promoters Ltd. [(2012) 5 SCC 712] may be usefully recapitulated29. The twin inhibiting factors identified above if are to be read as a bar to the grant of a decree of specific performance would amount to penalizing the plaintiffs for no fault on their part; to deny them the real fruits of a protracted litigation wherein the issues arising are being answered in their favour. From another perspective it may also indicate the inadequacies of the law to deal with the long delays that, at times, occur while rendering the final verdict in a given case. The aforesaid two features, at best, may justify award of additional compensation to the vendor by grant of a price higher than what had been stipulated in the agreement which price, in a given case, may even be the market price as on date of the order of the final Court.
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V.M. Deshpande Vs. V.S. Kondaskar, Official Liquidator | provisions in a special Act and/or special provision like that in Section 41 of the Life Insurance Corporation Act would override the provisions in sub-sections (1) and (2) of Section 446.25. We are. unable to accept the argument made by Mr. Chagla that provisions in Sections 148 and 142 of the Income-tax Act, are general provisions, and the scheme of those provisions was liable to be overridden by the provisions in sub-sections (1) and (2) of Section 446 as being special provisions. The scheme in Sections 148 and 142 of the Income-tax Act and the scheme thereof for assessment of quantum of tax must be considered in pari materia with the provisions in Section 41 of the Life Insurance Corporation Act. These sections and the above scheme are in a special Act investing jurisdiction in special Tribunals and accordingly such as would "override the provisions of the general Act, viz., the Companies Act."26. Now it is true that in the case of A.I.R. 1966 Supreme Court 35, in connection with the recovery proceedings envisaged by Section 49-E of the Income-tax Act, in the context of the provisions in Sections 228 and 229 of the Companies Act 1913, in consonance with the previous decision of the Federal Court in the case of 14 ITR 248 , the Supreme Court observed; "Section 49-E is a general provision applicable to all assessees and in all circumstances; Sections 228 and 229 deal with the proof of debts and their payment in liquidation." The Supreme Courts decision was on the footing that the provisions of Section 49E were overriden by the provisions in Sections 228 and 229 of the Indian Companies Act, 1913 Similar provisions in the Income-tax Act, 1963 and the Companies Act, 1956 will bear the same effect. It however, requires to be noticed that the Scheme of the Companies Act in the Chapter relating to winding up of insolvent Companies as regards unsecured debts is like that in the Provincial and Presidency Towns Insolvency Acts for satisfaction of these debts pari passu, i.e., for distribution of the available assets between the creditors in the proportion of their claims Sections 228 and 229 enact the above Scheme. Provisions like these in respect of Companies in winding-up as contained in the Chapter relating to Companies in liquidation in the Companies Act would always override, as being special provisions, proceedings for recovery of tax dues and the special provisions like Section 49-E enacted in the Income tax Act. Even so, the effect of the decision of the Supreme Court in Damjis case is that where claims arise for decision by special Tribunals and/or special Officers like Income-tax Officers in the present case under special jurisdiction, the provisions in sub-sections (1) and (2) of Section 446 must be considered as general provisions only, The matter is not res integra. We are, therefore, unable to accept Mr. Chaglas contention that the impugned notices were liable to be staved by issuing an order of injunction because the Supreme Court had not changed or restricted the meaning of the phrase "legal proceedings" as construed by the Federal Court and the Supreme Court in the matter of A.I.R. 1946 FC 16 and A.I.R. 1966 Supreme Court 35.27. The alternative contention in this connection was that in so far as the observations of the Supreme Court in Damjis case alter and/or restrict the meaning of the phrase "legal proceedings" the same are casual and/or made in passing, The submission was that the observations were not relevant to arrive at the findings which the Supreme Court made. The further submission in the alternative was that the findings of the Supreme Court in connection with sub-sections (1) and (2) of Section 446 were patently in ignorance of the relevant provisions in sub-sections (3) and (4) of Section 446, as also in Sections 442, 530 and 537 and certain other sections of the Companies Act. These findings were made in ignorance of the above decision of the Federal Court, as also of the Supreme Court in the two cases just mentioned. These findings were therefore per incuriam and we are not bound to follow them. In that connection reference was made to Salmond on Jurisprudence, 12th Edition. page 151, where it is. inter alia, stated that the precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. "The rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to, and had not present to its mind, the precise terms of the statute". The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam."28. Now in connection with these submissions, as already stated to Mr. Chagla by us, we are of the view that the Supreme Court was called upon to ascertain the true effect of the provisions of sub-sections (1) and (2) of Section 446 the main important point in the case of Damji. It is impossible to imagine that the contents of sub-sections (l) and (2) of Section 446, on which reliance is sought to be placed by Mr. Chagla, was not present to the mind of the Supreme Court in deciding the case of Damji. The paragraph 18 which we have already quoted above, contains direct reasoning of the Court for the findings made in paragraphs 18 and 19 for arriving at the true construction and effect of the above two sub-sections. We are also unable to imagine that the Supreme Court was, whilst dealing with the provisions of these two sub-sections, unaware of the provisions of sub-sections (3) and (4) of Section 446 and the relevant sections or the scheme of the Companies Act. We, therefore, reject these alternative submissions made by Mr. Chagla.29. The result of the above discussion is that the arguments advanced by Mr. Chagla in reply to the above second contention made on behalf of the appellants fail. | 1[ds]10. We do not propose to decide the correctness or otherwise of the arguments advanced on behalf of the parties on the above first contention made by Mr. Joshi because as discussed hereunder, having regard to the observations of the Supreme Court in the case of A.I.R. 1966 Supreme Court 135 it would be incorrect to hold that in respect of the assessment proceedings adopted against the Mills Company leave of the Court was necessary under Section 446 (1) of the Companies Act, 1956. It is convenient to deal with the above second contention made on behalf of the appellants at this stage.Now it is quite clear that the Supreme Court has held in the above paragraph that the provisions ofsubsection (1) of Section446 are consequential to the provisions of(2) of Section 446 and that this is so because under(2) exclusive jurisdiction is conferred on the Company Court to dispose of all suits or proceedings by or against a Company and further that the consequential provisions ofsubsection (1) of Section446 are not attracted and cannot be applied to proceedings (like those before Life Insurance Tribunal) before an administrative Tribunal and/or a Tribunal which is given exclusive Jurisdiction to decide and determine matters arising under the relevant Act. Apparently, in connection with matters of exclusive jurisdiction triable by special Tribunals in paragraph 19 the Supreme Court observed that "the provisions of the special Act, i.e., the L.I.C. Act, will override the provisions of the general Act, viz., the Companies Act, which is an Act relating to companies in general". It appears that the Court formulated a view that in matters which are by special Acts liable to be decided, determined and disposed of by special Tribunals of exclusive jurisdiction, the Company Court will not have any jurisdiction under(2) of Section 446 and that consequently in connection with such matters or proceedings, even if they are legal proceedings, leave of Court would not be necessary undersubsection (1) of Sectionrightly submitted that the phrase "legal proceedings" in Section 171 related to the same matter as is contained insubsection (1) of Section446. He rightly submitted that Section 171 and this phrase in the section was the subject matter of decision of the Federal Court in the case of A.I.R. 1946 FC 16 and the construction of that phrase as made by the Federal Court has been cited with approval by the Supreme Court in the case of A.I.R. 1955 Supreme Court 604. Though the section was not referred to, there was some discussion about the jurisdiction of the Company Court and theAuthorities in the case of A.I.R. 1966 Supreme Court 35. His submission was that the observation of the Supreme Court in the case of A.I.R. 1966 Supreme Court 135 had in no way limited or restricted the meaning of the phrase "legal proceedings". He strongly relied upon the fact thatsubsection (1) of Section446 was the only part of that section before the Amending Act 65 of 1960 introduced(2), (3) and (4). He therefore was emphatic in his submission that these newly addedhad not changed the meaning of the phrase "legal proceedings" and that the phrase must be held to have continued to have the same meaning as was ascertained by the Federal Court in the ease of Shiromani Sugar Mill. In his submission the consequence of the observation of the Supreme Court in the case of A.I.R. 1966 Supreme Court 135 was that theCourt would have exclusive jurisdiction under the IndianAct and would therefore be entitled to proceed under that Act to assess quantum of tax dues of the Mills Company and he therefore argued that the assessment proceedings against the Mills Company would become stayed in accordance with the provisions in Section 446 (l). In his submission wherever conflict of jurisdiction for disposing of claims against Company appeared it would be settled by deciding if the jurisdiction provisions are special and/or general. The special would exclude the general. In his submission the provision in Section 148 of theAct whereunder the notices in question were issued was a general provision relating to all assessees. On the contrary, in connection with the very same matter Section 446(2) was a special provision applicable only to companies inIn the result the proceedings under Section 148 were liable to be set aside. In this connection he particularly relied upon the observations of the Supreme Court in the case of A.I.R. 1966 Supreme Court 35.23. In connection with these contentions it first requires to be recorded that in the case of Shiromani Sugar Mills the question related to the proceedings commenced under Section 46(2) of theAct for recovery of already assessed tax. Though the assessment of quantum of tax had taken place subsequent to the date of theorder the question that the assessment proceedings were unauthorised or invalid because leave of the Court under Section 171 had not been obtained was not raised or decided. In connection with the recovery Proceedings the Court was called upon to find out the true meaning of the phrase "legal proceedings" as contained in Section 171. In that connection the Court first noticed that under Section 289 of the Indian Companies Act 1913, only limited priority was fixed in connection with Crown debts. Ordinarily. Crown debts ranked for payment pari passu with ordinary creditors The Court also noticed that except for the machinery provided in Section 171 for compelling the department to get leave of Court before proceeding to make recovery, there was no machinery for having the account of the monies recovered and for securing the recovered monies into Court so that the assets of the Company inwere duly distributed pan passu amongst all ordinary creditors. In connection with the meaning of the phrase "legal proceedings" the argument on behalf of the Revenue was that it must be in the nature of a suit and reliance was placed in that connection on the observations of the Full Bench of the High Court at Lahore in the case of Shukantla v. The Peoples Bank of Northern India Ltd., ILR (1941) 22 Lah 760 : A.I.R. 1941 Lahore 392 FB). The Federal Court negatived the submission. The Court observed that the phrase "legal proceedings" need not be confirmed to original proceedings in a Court of first Instance, analogous to a suit, initiated by means of a petition similar to a plaint. Section 171 must, in our judgment, be construed with reference to other sections of the Act and the general scheme of administration of the assets of a company in liquidation laid down by the Act." Having seen the scheme of Sections 232 and 211 the Court found that "no narrow construction should be placed upon the words or other legal proceeding in Section 171. In our judgment, the words can and should be held to cover distress and execution proceedings in the ordinary Courts. In our view, such proceedings are other legal proceedings against the company, as contrasted with "ordinary suits against the Company." The further observations were "but we see no reason why in British India no legal proceeding can be taken otherwise than in an ordinary Court of law or why a proceeding taken elsewhere than in an ordinary Court of law, provided it be taken in a manner prescribed by law and in pursuance of law or legal enactment, cannot properly be described as a legal proceeding ". Similarly a Division Bench of this Court in the case of (A.I.R. 1958 Bombay 279, definitely observed in the context of Section 48(2) of theAct, 1953. that "legal proceeding in its normal connotation can only mean a proceeding in accordance with law, and there can be no doubt that assessment proceedings which are under the Sales Tax Act are such proceedings". The further relevant observation was n 171. In that connection the Court first noticed that under Section 289 of the Indian Companies Act 1913, only limited priority was fixed in connection with Crown debts. Ordinarily. Crown debts ranked for payment pari passu with ordinary creditors The Court also noticed that except for the machinery provided in Section 171 for compelling the department to get leave of Court before proceeding to make recovery, there was no machinery for having the account of the monies recovered and for securing the recovered monies into Court so that the assets of the Company inwere duly distributed pan passu amongst all ordinary creditors. In connection with the meaning of the phrase "legal proceedings" the argument on behalf of the Revenue was that it must be in the nature of a suit and reliance was placed in that connection on the observations of the Full Bench of the High Court at Lahore in the case of Shukantla v. The Peoples Bank of Northern India Ltd., ILR (1941) 22 Lah 760 : A.I.R. 1941 Lahore 392 FB). The Federal Court negatived the submission. The Court observed that the phrase "legal proceedings" need not be confirmed to original proceedings in a Court of first Instance, analogous to a suit, initiated by means of a petition similar to a plaint. Section 171 must, in our judgment, be construed with reference to other sections of the Act and the general scheme of administration of the assets of a company in liquidation laid down by the Act." Having seen the scheme of Sections 232 and 211 the Court found that "no narrow construction should be placed upon the words or other legal proceeding in Section 171. In our judgment, the words can and should be held to cover distress and execution proceedings in the ordinary Courts. In our view, such proceedings are other legal proceedings against the company, as contrasted with "ordinary suits against the Company." The further observations were "but we see no reason why in British India no legal proceeding can be taken otherwise than in an ordinary Court of law or why a proceeding taken elsewhere than in an ordinary Court of law, provided it be taken in a manner prescribed by law and in pursuance of law or legal enactment, cannot properly be described as a legal proceeding ". Similarly a Division Bench of this Court in the case of (A.I.R. 1958 Bombay 279, definitely observed in the context of Section 48(2) of theAct, 1953. that "legal proceeding in its normal connotation can only mean a proceeding in accordance with law, and there can be no doubt that assessment proceedings which are under the Sales Tax Act are such proceedings". The further relevant observation was that "It must be remembered in this context that the expression legal proceeding is not synonymous with judicial proceeding. Proceedings may be legal even if they are not judicial proceedings, if they are authorised by law; and Mr Palkhiwala. by his argument, undoubtedly requires us to equate the expression "legal proceeding" in Section 48,(2)(vii) with judicial proceedings for which in our opinion there is no warrant in law. " The ultimate finding of the Court in that case was that "the expression" "legal proceeding" in Section 48(2)(ii) includes assessment proceedings, x x x x". Now Mr. Chagla insisted that having regard to the history of the legislation in Section 171 and Section 446(1) and the above observations in connection with the phrase "legal proceedings" the finding of Mr. Justice Vimadalal that the assessment proceedings commenced by the impugned notices were "legal proceedings" must be accepted as correct. According to him this being the correct posin 171. In that connection the Court first noticed that under Section 289 of the Indian Companies Act 1913, only limited priority was fixed in connection with Crown debts. Ordinarily. Crown debts ranked for payment pari passu with ordinary creditors The Court also noticed that except for the machinery provided in Section 171 for compelling the department to get leave of Court before proceeding to make recovery, there was no machinery for having the account of the monies recovered and for securing the recovered monies into Court so that the assets of the Company inwere duly distributed pan passu amongst all ordinary creditors. In connection with the meaning of the phrase "legal proceedings" the argument on behalf of the Revenue was that it must be in the nature of a suit and reln 171. In that connection the Court first noticed that under Section 289 of the Indian Companies Act 1913, only limited priority was fixed in connection with Crown debts. Ordinarily. Crown debts ranked for payment pari passu with ordinary creditors The Court also noticed that except for the machinery provided in Section 171 for compelling the department to get leave of Court before proceeding to make recovery, there was no machinery for having the account of the monies recovered and for securing the recovered monies into Court so that the assets of the Company ine duly distributed pan passu amongst all ordinary creditors. In connection with the meaning of the phrase "legal proceedings" the argument on behalf of the Revenue was that it must be in the nature of a suit and reliance was placed in that connection on the observations of the Full Bench of the High Court at Lahore in the case of Shukantla v. The Peoples Bank of Northern India Ltd., ILR (1941) 22 Lah 760 : A.I.R. 1941 Lahore 392 FB). The Federal Court negatived the submission. The Court observed that the phrase "legal proceedings" need not be confirmed to original proceedings in a Court of first Instance, analogous to a suit, initiated by means of a petition similar to a plaint. Section 171 must, in our judgment, be construed with reference to other sections of the Act and the general scheme of administration of the assets of a company in liquidation laid down by the Act." Having seen the scheme of Sections 232 and 211 the Court found that "no narrow construction should be placed upon the words or other legal proceeding in Section 171. In our judgment, the words can and should be held to cover distress and execution proceedings in the ordinary Courts. In our view, such proceedings are other legal proceedings against the company, as contrasted with "ordinary suits against the Company." The further observations were "but we see no reason why in British India no legal proceeding can be taken otherwise than in an ordinary Court of law or why a proceeding taken elsewhere than in an ordinary Court of law, provided it be taken in a manner prescribed by law and in pursuance of law or legal enactment, cannot properly be described as a legal proceeding ". Similarly a Division Bench of this Court in the case of (A.I.R. 1958 Bombay 279, definitely observed in the context of Section 48(2) of theAct, 1953. that "legal proceeding in its normal connotation can only mean a proceeding in accordance with law, and there can be no doubt that assn our view, such proceedings are other legal proceedings against the company, as contrasted with "ordinary suits against the Company." The further observations were "but we see no reason why in British India no legal proceeding can be taken otherwise than in an ordinary Court of law or why a proceeding taken elsewhere than in an ordinary Court of law, provided it be taken in a manner prescribed by law and in pursuance of law or legal enactment, cannot properly be described as an our view, such proceedings are other legal proceedings against the company, as contrasted with "ordinary suits against the Company." The further observations were "but we see no reason why in British India no legal proceeding can be taken otherwise than in an ordinary Court of law or why a proceeding taken elsewhere than in an ordinary Court of law, provided it be taken in a manner prescribed by law and in pursuance of law or legal enactment, cannot properly be described as a legal proceeding ". Similarly a Division Bench of this Court in the case of (A.I.R. 1958 Bombay 279), definitely observed in the context of Section 48(2) of the, 1953. that "legal proceeding in its normal connotation can only mean a proceeding in accordance with law, and there can be no doubt that assessment proceedings which are under the Sales Tax Act are such proceedings". The further relevant observation was that "It must be remembered in this context that the expression legal proceeding is not synonymous with judicial proceeding. Proceedings may be legal even if they are not judicial proceedings, if they are authorised by law; and Mr Palkhiwala. by his argument, undoubtedly requires us to equate the expression "legal proceeding" in Section 48,(2)(vii) with judicial proceedings for which in our opinion there is no warrant in law. " The ultimate finding of the Court in that case was that "the expression" "legal proceeding" in Section 48(2)(ii) includes assessment proceedings, x x x x". Now Mr. Chagla insisted that having regard to the history of the legislation in Section 171 and Section 446(1) and the above observations in connection with the phrase "legal proceedings" the finding of Mr. Justice Vimadalal that the assessment proceedings commenced by the impugned notices were "legal proceedings" must be accepted as correct. According to him this being the correct position in law, we should proceed to hold in his favour that there is nothing in the decision in the case of A.I.R. 1966 Supreme Court 135 which has affected the above position In support of that submission he has placed strong reliance on the contents of(3) and (4) of Section 446 Now it is quite clear that under(4) of Section 446, in spite of aorder having been made in connection with proceedings pending in appeal before the Supreme Court or a High Court, leave under Section 446(1) is unnecessary. It is also clear that under(3) the winding up Court, in its discretion, may notwithstanding anything contained in any other law for the tune being in force, transfer to itself any suit or proceeding and dispose of the same. Relying on this part of the section Mr. Chagla sought to argue that under(2) exclusive jurisdiction is created in a winding up Court in connection with the matters mentioned in that sub section. He therefore argued that the true effect of the observations of the Supreme Court in the case of A.I.R. 1966 Supreme Court 135 was that in each and all proceedings in which a claim is made for of against a Company in liquidation the same was within the "jurisdiction of the Company Court and for that reason the assessment proceeding commenced by the impugned notices was within the jurisdiction of the Company Court. We should, therefore, hold that the order of injunction granted by the learned Judge was justified and correct.24. These arguments in defence of the above second contention made by Mr. Joshi do not disclose any real defence and are liable to be rejected for the reasons following :(1) The second contention made for the appellants is on an assumption that the notices forreassessment issued under Section 148of the. IndianAct, 1961, were in respect of legal proceedings covered bysubsection (1) of Section446.(2) In connection with its findings regarding the true meaning and effect of the provisions in(1) and (2) of Section 446 the Supreme Court did not find it necessary in the case of A.I.R. 1958 Supreme Court 135 to discuss the connotation of the phrase "legal proceedings". The Supreme Court further found it entirely unnecessary to refer to the provisions in(3) and (4) of Section 446 and other relevant sections such as 442, 530 and 537.(3) The Supreme Court arrived at its findings regarding the true effect of the provisions in(2) and (3) of Section 446 in spite of and we must presume with the full and complete know ledge of, the provisions in(3) and (4) of Section 446 and all relevant sections, including Sections 442, 530 and 537.(4) The main ratio of the decision of the Supreme Court was, as already discussed above that the provisions insubsection (1) of Sectionwere consequential provisions for the reasons discussed in the first part of paragraph 18 of the judgment. For that reason the Supreme Court found that having regard to the special provision conferring jurisdiction on a special Tribunal under Section 41 of the Life Insurance Corporation Act and the general provisions of that Act being in a special Act "will override the provisions of the general Act. viz., Companies Act". The Supreme Court must be held to have held that in the context of a special Act like the Life Insurance Corporation Act the provisions in(1) and (2) of Section 446 were provisions of a general Act and provisions in a special Act and/or special provision like that in Section 41 of the Life Insurance Corporation Act would override the provisions in(1) and (2) of Section 446.25. We are. unable to accept the argument made by Mr. Chagla that provisions in Sections 148 and 142 of theAct, are general provisions, and the scheme of those provisions was liable to be overridden by the provisions in(1) and (2) of Section 446 as being special provisions. The scheme in Sections 148 and 142 of theAct and the scheme thereof for assessment of quantum of tax must be considered in pari materia with the provisions in Section 41 of the Life Insurance Corporation Act. These sections and the above scheme are in a special Act investing jurisdiction in special Tribunals and accordingly such as would "override the provisions of the general Act, viz., the Companies Act.Now it is true that in the case of A.I.R. 1966 Supreme Court 35, in connection with the recovery proceedings envisaged by Sectiontax Act, in the context of the provisions in Sections 228 and 229 of the Companies Act 1913, in consonance with the previous decision of the Federal Court in the case of 14 ITR 248 , the Supreme Court observed; "Sectionis a general provision applicable to all assessees and in all circumstances; Sections 228 and 229 deal with the proof of debts and their payment in liquidation." The Supreme Courts decision was on the footing that the provisions of Section 49E were overriden by the provisions in Sections 228 and 229 of the Indian Companies Act, 1913 Similar provisions in theAct, 1963 and the Companies Act, 1956 will bear the same effect. It however, requires to be noticed that the Scheme of the Companies Act in the Chapter relating to winding up of insolvent Companies as regards unsecured debts is like that in the Provincial and Presidency Towns Insolvency Acts for satisfaction of these debts pari passu, i.e., for distribution of the available assets between the creditors in the proportion of their claims Sections 228 and 229 enact the above Scheme. Provisions like these in respect of Companies inas contained inthe Chapter relating toCompanies in liquidation in the Companies Act would always override, as being special provisions, proceedings for recovery of tax dues and the special provisions like Sectionenacted in the Income tax Act. Even so, the effect of the decision of the Supreme Court in Damjis case is that where claims arise for decision by special Tribunals and/or special Officers likeOfficers in the present case under special jurisdiction, the provisions in(1) and (2) of Section 446 must be considered as general provisions only, The matter is not res integra. We are, therefore, unable to accept Mr. Chaglas contention that the impugned notices were liable to be staved by issuing an order of injunction because the Supreme Court had not changed or restricted the meaning of the phrase "legal proceedings" as construed by the Federal Court and the Supreme Court in the matter of A.I.R. 1946 FC 16 and A.I.R. 1966 Supreme Court 35.Now in connection with these submissions, as already stated to Mr. Chagla by us, we are of the view that the Supreme Court was called upon to ascertain the true effect of the provisions of(1) and (2) of Section 446 the main important point in the case of Damji. It is impossible to imagine that the contents of(l) and (2) of Section 446, on which reliance is sought to be placed by Mr. Chagla, was not present to the mind of the Supreme Court in deciding the case of Damji. The paragraph 18 which we have already quoted above, contains direct reasoning of the Court for the findings made in paragraphs 18 and 19 for arriving at the true construction and effect of the above twoWe are also unable to imagine that the Supreme Court was, whilst dealing with the provisions of these twounaware of the provisions of(3) and (4) of Section 446 and the relevant sections or the scheme of the Companies Act. We, therefore, reject these alternative submissions made by Mr. Chagla.29. The result of the above discussion is that the arguments advanced by Mr. Chagla in reply to the above second contention made on behalf of the appellants fail.Having arrived at the above conclusion on the above second contention made on behalf of the appellants, we do not find it necessary to deal with the first contention made on behalf of the appellants. It is only necessary to refer in a very summary way to the arguments advanced in support of that contention.As already stated in the above discussion in connection with these contentions, there are extremely relevant observations in the decision of the Federal Court in the case of the (A.I.R. 1946 FC 16) and of the Supreme Court in the case of A.I.R. 1966 Supreme Court 35. There are also relevant observations in the case of 59 Bom LR 1259 . We, however, find it unnecessary to discuss these decisions and to arrive at any finding as regards these rival contentions, in view of the fact we have accepted the above second contention made on behalf of the appellants. | 1 | 9,207 | 4,834 | ### Instruction:
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provisions in a special Act and/or special provision like that in Section 41 of the Life Insurance Corporation Act would override the provisions in sub-sections (1) and (2) of Section 446.25. We are. unable to accept the argument made by Mr. Chagla that provisions in Sections 148 and 142 of the Income-tax Act, are general provisions, and the scheme of those provisions was liable to be overridden by the provisions in sub-sections (1) and (2) of Section 446 as being special provisions. The scheme in Sections 148 and 142 of the Income-tax Act and the scheme thereof for assessment of quantum of tax must be considered in pari materia with the provisions in Section 41 of the Life Insurance Corporation Act. These sections and the above scheme are in a special Act investing jurisdiction in special Tribunals and accordingly such as would "override the provisions of the general Act, viz., the Companies Act."26. Now it is true that in the case of A.I.R. 1966 Supreme Court 35, in connection with the recovery proceedings envisaged by Section 49-E of the Income-tax Act, in the context of the provisions in Sections 228 and 229 of the Companies Act 1913, in consonance with the previous decision of the Federal Court in the case of 14 ITR 248 , the Supreme Court observed; "Section 49-E is a general provision applicable to all assessees and in all circumstances; Sections 228 and 229 deal with the proof of debts and their payment in liquidation." The Supreme Courts decision was on the footing that the provisions of Section 49E were overriden by the provisions in Sections 228 and 229 of the Indian Companies Act, 1913 Similar provisions in the Income-tax Act, 1963 and the Companies Act, 1956 will bear the same effect. It however, requires to be noticed that the Scheme of the Companies Act in the Chapter relating to winding up of insolvent Companies as regards unsecured debts is like that in the Provincial and Presidency Towns Insolvency Acts for satisfaction of these debts pari passu, i.e., for distribution of the available assets between the creditors in the proportion of their claims Sections 228 and 229 enact the above Scheme. Provisions like these in respect of Companies in winding-up as contained in the Chapter relating to Companies in liquidation in the Companies Act would always override, as being special provisions, proceedings for recovery of tax dues and the special provisions like Section 49-E enacted in the Income tax Act. Even so, the effect of the decision of the Supreme Court in Damjis case is that where claims arise for decision by special Tribunals and/or special Officers like Income-tax Officers in the present case under special jurisdiction, the provisions in sub-sections (1) and (2) of Section 446 must be considered as general provisions only, The matter is not res integra. We are, therefore, unable to accept Mr. Chaglas contention that the impugned notices were liable to be staved by issuing an order of injunction because the Supreme Court had not changed or restricted the meaning of the phrase "legal proceedings" as construed by the Federal Court and the Supreme Court in the matter of A.I.R. 1946 FC 16 and A.I.R. 1966 Supreme Court 35.27. The alternative contention in this connection was that in so far as the observations of the Supreme Court in Damjis case alter and/or restrict the meaning of the phrase "legal proceedings" the same are casual and/or made in passing, The submission was that the observations were not relevant to arrive at the findings which the Supreme Court made. The further submission in the alternative was that the findings of the Supreme Court in connection with sub-sections (1) and (2) of Section 446 were patently in ignorance of the relevant provisions in sub-sections (3) and (4) of Section 446, as also in Sections 442, 530 and 537 and certain other sections of the Companies Act. These findings were made in ignorance of the above decision of the Federal Court, as also of the Supreme Court in the two cases just mentioned. These findings were therefore per incuriam and we are not bound to follow them. In that connection reference was made to Salmond on Jurisprudence, 12th Edition. page 151, where it is. inter alia, stated that the precedent is not binding if it was rendered in ignorance of a statute or a rule having the force of statute. "The rule apparently applies even though the earlier court knew of the statute in question, if it did not refer to, and had not present to its mind, the precise terms of the statute". The lower court may refuse to follow the later decision on the ground that it was arrived at per incuriam."28. Now in connection with these submissions, as already stated to Mr. Chagla by us, we are of the view that the Supreme Court was called upon to ascertain the true effect of the provisions of sub-sections (1) and (2) of Section 446 the main important point in the case of Damji. It is impossible to imagine that the contents of sub-sections (l) and (2) of Section 446, on which reliance is sought to be placed by Mr. Chagla, was not present to the mind of the Supreme Court in deciding the case of Damji. The paragraph 18 which we have already quoted above, contains direct reasoning of the Court for the findings made in paragraphs 18 and 19 for arriving at the true construction and effect of the above two sub-sections. We are also unable to imagine that the Supreme Court was, whilst dealing with the provisions of these two sub-sections, unaware of the provisions of sub-sections (3) and (4) of Section 446 and the relevant sections or the scheme of the Companies Act. We, therefore, reject these alternative submissions made by Mr. Chagla.29. The result of the above discussion is that the arguments advanced by Mr. Chagla in reply to the above second contention made on behalf of the appellants fail.
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all relevant sections, including Sections 442, 530 and 537.(4) The main ratio of the decision of the Supreme Court was, as already discussed above that the provisions insubsection (1) of Sectionwere consequential provisions for the reasons discussed in the first part of paragraph 18 of the judgment. For that reason the Supreme Court found that having regard to the special provision conferring jurisdiction on a special Tribunal under Section 41 of the Life Insurance Corporation Act and the general provisions of that Act being in a special Act "will override the provisions of the general Act. viz., Companies Act". The Supreme Court must be held to have held that in the context of a special Act like the Life Insurance Corporation Act the provisions in(1) and (2) of Section 446 were provisions of a general Act and provisions in a special Act and/or special provision like that in Section 41 of the Life Insurance Corporation Act would override the provisions in(1) and (2) of Section 446.25. We are. unable to accept the argument made by Mr. Chagla that provisions in Sections 148 and 142 of theAct, are general provisions, and the scheme of those provisions was liable to be overridden by the provisions in(1) and (2) of Section 446 as being special provisions. The scheme in Sections 148 and 142 of theAct and the scheme thereof for assessment of quantum of tax must be considered in pari materia with the provisions in Section 41 of the Life Insurance Corporation Act. These sections and the above scheme are in a special Act investing jurisdiction in special Tribunals and accordingly such as would "override the provisions of the general Act, viz., the Companies Act.Now it is true that in the case of A.I.R. 1966 Supreme Court 35, in connection with the recovery proceedings envisaged by Sectiontax Act, in the context of the provisions in Sections 228 and 229 of the Companies Act 1913, in consonance with the previous decision of the Federal Court in the case of 14 ITR 248 , the Supreme Court observed; "Sectionis a general provision applicable to all assessees and in all circumstances; Sections 228 and 229 deal with the proof of debts and their payment in liquidation." The Supreme Courts decision was on the footing that the provisions of Section 49E were overriden by the provisions in Sections 228 and 229 of the Indian Companies Act, 1913 Similar provisions in theAct, 1963 and the Companies Act, 1956 will bear the same effect. It however, requires to be noticed that the Scheme of the Companies Act in the Chapter relating to winding up of insolvent Companies as regards unsecured debts is like that in the Provincial and Presidency Towns Insolvency Acts for satisfaction of these debts pari passu, i.e., for distribution of the available assets between the creditors in the proportion of their claims Sections 228 and 229 enact the above Scheme. Provisions like these in respect of Companies inas contained inthe Chapter relating toCompanies in liquidation in the Companies Act would always override, as being special provisions, proceedings for recovery of tax dues and the special provisions like Sectionenacted in the Income tax Act. Even so, the effect of the decision of the Supreme Court in Damjis case is that where claims arise for decision by special Tribunals and/or special Officers likeOfficers in the present case under special jurisdiction, the provisions in(1) and (2) of Section 446 must be considered as general provisions only, The matter is not res integra. We are, therefore, unable to accept Mr. Chaglas contention that the impugned notices were liable to be staved by issuing an order of injunction because the Supreme Court had not changed or restricted the meaning of the phrase "legal proceedings" as construed by the Federal Court and the Supreme Court in the matter of A.I.R. 1946 FC 16 and A.I.R. 1966 Supreme Court 35.Now in connection with these submissions, as already stated to Mr. Chagla by us, we are of the view that the Supreme Court was called upon to ascertain the true effect of the provisions of(1) and (2) of Section 446 the main important point in the case of Damji. It is impossible to imagine that the contents of(l) and (2) of Section 446, on which reliance is sought to be placed by Mr. Chagla, was not present to the mind of the Supreme Court in deciding the case of Damji. The paragraph 18 which we have already quoted above, contains direct reasoning of the Court for the findings made in paragraphs 18 and 19 for arriving at the true construction and effect of the above twoWe are also unable to imagine that the Supreme Court was, whilst dealing with the provisions of these twounaware of the provisions of(3) and (4) of Section 446 and the relevant sections or the scheme of the Companies Act. We, therefore, reject these alternative submissions made by Mr. Chagla.29. The result of the above discussion is that the arguments advanced by Mr. Chagla in reply to the above second contention made on behalf of the appellants fail.Having arrived at the above conclusion on the above second contention made on behalf of the appellants, we do not find it necessary to deal with the first contention made on behalf of the appellants. It is only necessary to refer in a very summary way to the arguments advanced in support of that contention.As already stated in the above discussion in connection with these contentions, there are extremely relevant observations in the decision of the Federal Court in the case of the (A.I.R. 1946 FC 16) and of the Supreme Court in the case of A.I.R. 1966 Supreme Court 35. There are also relevant observations in the case of 59 Bom LR 1259 . We, however, find it unnecessary to discuss these decisions and to arrive at any finding as regards these rival contentions, in view of the fact we have accepted the above second contention made on behalf of the appellants.
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Western India Theatres Limited Vs. Associated Bombay Cinemas Limited | up of the company, in which case he may reject it. But if he chooses to accept it, the practice followed by this court - and that is the correct practice - is for the learned Judge to direct that a notice should be given to the company. This notice is for the purpose of enabling the company to show cause why the petition should not be proceeded with. In answer to the notice all that the respondent is entitled to urge is that for any justifiable reason the petition should not be proceeded with and further steps should not be taken. If the learned Judge is satisfied at that stage that the respondent has made out a proper case and has shown cause, he can dismiss the petition. If, on the other hand, the learned Judge feels that the respondent has not shown proper cause and that the petition must proceed to a final hearing on merits, he then makes the order under rule 733, directs the advertisement of the petition, and fixes the final hearing of the petition. This notice is essential because, as Mr. Purshottam has rightly pointed out, it is a very serious matter for any company to have the petition advertised without the company being heard in its defence. Mr. Desai was inclined cavalierly to suggest that after all what did it matter, the petition would be advertised and the appellant would be entitled to show cause on merits when the petition came on for hearing on the day fixed by Mr. Justice DESAI. But that is completely ignoring the effect and the serious effect that might be created by advertising the fact that a creditor has presented a petition for winding up against the company. It is precisely because of this that our practice insists upon a notice being issued to the company to enable the company to put before the court its contention why the petition should not be proceeded with, if that is the contention the respondent wishes to put forward.( 7 ) IN this case, unfortunately, the whole trouble has arisen because of the form in which Mr. Justice COYAJEE, with respect to him, made the order. He accepted the petition on November 11, 1955. Strictly, as the appellants were before him, he should have proceeded to hear the appellants as to whether the petition should be proceeded with or not. Instead of doing that, on that very day he postponed the hearing of that to December 2, 1955. The proper expression he should have used in his endorsement should have been : "petition put on board December 2, for further directions. " Instead of that, the learned Judge used the expression "hearing", and this expression is seized upon by Mr. Desai for the contention that the petition was accepted and that the hearing was fixed on December 2, which was ultimately taken up by Mr. Justice DESAI. It is clear that in view of rule 733 the learned Judge could not have fixed the final hearing of this petition on December 2. If he wanted to hear the petition on merits on that day, the petition had to be advertised and the procedure laid down in that rule had to be carried out. ( 8 ) MR. Desai says that the learned Judge must have overlooked the provisions of rule 733. We refuse to believe that Mr. Justice COYAJEE with his wide experience of company matters could possibly overlook the provisions of rule 733. It is clear that what the learned Judge intended was to hear the appellants on December 2, with regard to their contention that the petition should not be proceeded with, and this is borne out by the fact that Mr. Modi, the managing director of the appellants, has made an affidavit on December 1, 1955, setting out the grounds on which the petition was being resisted and to show why it should not be proceeded with. Therefore, when the matter ultimately came up before Mr. Justice DESAI, it was still at the stage of giving directions, and although we are told the matter was heard at great length by Mr. Justice DESAI, judging by the fact that the learned Judge has delivered no judgment and has merely given a direction as to the advertisement, the learned Judge seems to have taken the view that once the petition was accepted it was obligatory upon him to order advertisement of the petition. Now, as we have already pointed out, rule 733 does not take away the discretion of the Judge to consider whether the petition should be proceeded with or not. Therefore, what Mr. Justice DESAI should be have done when the matter came up before him was to have decided whether the petition should be proceeded with or not. Various alternatives were open to the learned Judge. He might have decided that the petition should not be proceeded with and that it should be dismissed at that stage; he might have decided that the petition should be stayed and that no further action should be taken on the petition; or he might have decided that this was a case where the contributories and the creditors should be heard, that the petition should be advertised, and that the final hearing should be fixed for a particular date. If the learned Judge had made the order after considering these various alternatives and if he had done so after hearing the contention of the appellants and had come to the conclusion that there was no substance in their contention, then undoubtedly it could not be said that the learned Judge has not exercised his discretion. But as we have just pointed out, it is clear from the order of Mr. Justice DESAI and the absence of any indication in the judgment to the contrary that Mr. Justice DESAI felt that he was bound by the mandatory provisions of rule 733 and that he had to give effect to those provisions. | 0[ds]We have pointed out in Bachharaj Factories Ltd. v. Hirjee Mills Ltd. , that section 202 conferred upon a party aggrieved a substantial and valuable right of appeal and that the court must be anxious not in any way to cut down or impair that right. At same time we expressed the opinion that if an order made under section 202 was merely a procedural order which in no way affected the rights or liabilities of parties such an order would not be appealable. As we shall presently point out, it is unnecessary for us at this stage to decide whether the order made by Mr. Justice DESAI is procedural or affects the rights of parties, because the view we take is that Mr. Justice DESAI made this order without exercising his jurisdiction to hear the appellants and deciding their contentions as he was bound to do at this stage. Clearly, therefore, apart from any other question, failure on the part of the learned Judge to exercise his jurisdiction would be appealable under section 202 of the Companies6 ) NOW, a petitioner may give notice to the company before he presents the petition for acceptance. That is what the respondents did in this case. When the respondent appears before the learned Company Judge, the learned Judge would hear him and if the learned Judge is satisfied that the petition should be proceeded with, then he would give the necessary directions under rule 733 as to in which papers the petition should be advertised and which should be the date of the hearing. But it is open to a petitioner to present a petition ex parte, in which case the learned Judge may accept or may not accept it. He may on perusing the petition come to the conclusion that it is frivolous or that it fails to make out a proper case for the winding up of the company, in which case he may reject it. But if he chooses to accept it, the practice followed by this courtand that is the correct practiceis for the learned Judge to direct that a notice should be given to the company. This notice is for the purpose of enabling the company to show cause why the petition should not be proceeded with. In answer to the notice all that the respondent is entitled to urge is that for any justifiable reason the petition should not be proceeded with and further steps should not be taken. If the learned Judge is satisfied at that stage that the respondent has made out a proper case and has shown cause, he can dismiss the petition. If, on the other hand, the learned Judge feels that the respondent has not shown proper cause and that the petition must proceed to a final hearing on merits, he then makes the order under rule 733, directs the advertisement of the petition, and fixes the final hearing of the petition. This notice is essential because, as Mr. Purshottam has rightly pointed out, it is a very serious matter for any company to have the petition advertised without the company being heard in its defence. Mr. Desai was inclined cavalierly to suggest that after all what did it matter, the petition would be advertised and the appellant would be entitled to show cause on merits when the petition came on for hearing on the day fixed by Mr. Justice DESAI. But that is completely ignoring the effect and the serious effect that might be created by advertising the fact that a creditor has presented a petition for winding up against the company. It is precisely because of this that our practice insists upon a notice being issued to the company to enable the company to put before the court its contention why the petition should not be proceeded with, if that is the contention the respondent wishes to put forward.( 7 ) IN this case, unfortunately, the whole trouble has arisen because of the form in which Mr. Justice COYAJEE, with respect to him, made the order. He accepted the petition on November 11, 1955. Strictly, as the appellants were before him, he should have proceeded to hear the appellants as to whether the petition should be proceeded with or not. Instead of doing that, on that very day he postponed the hearing of that to December 2, 1955. The proper expression he should have used in his endorsement should have been : "petition put on board December 2, for further directions. " Instead of that, the learned Judge used the expression "hearing", and this expression is seized upon by Mr. Desai for the contention that the petition was accepted and that the hearing was fixed on December 2, which was ultimately taken up by Mr. Justice DESAI. It is clear that in view of rule 733 the learned Judge could not have fixed the final hearing of this petition onIf he wanted to hear the petition on merits on that day, the petition had to be advertised and the procedure laid down in that rule had to be carried8 ) MR. Desai says that the learned Judge must have overlooked the provisions of rule 733. We refuse to believe that Mr. Justice COYAJEE with his wide experience of company matters could possibly overlook the provisions of rule 733. It is clear that what the learned Judge intended was to hear the appellants on December 2, with regard to their contention that the petition should not be proceeded with, and this is borne out by the fact that Mr. Modi, the managing director of the appellants, has made an affidavit on December 1, 1955, setting out the grounds on which the petition was being resisted and to show why it should not be proceeded with. Therefore, when the matter ultimately came up before Mr. Justice DESAI, it was still at the stage of giving directions, and although we are told the matter was heard at great length by Mr. Justice DESAI, judging by the fact that the learned Judge has delivered no judgment and has merely given a direction as to the advertisement, the learned Judge seems to have taken the view that once the petition was accepted it was obligatory upon him to order advertisement of the petition. Now, as we have already pointed out, rule 733 does not take away the discretion of the Judge to consider whether the petition should be proceeded with or not. Therefore, what Mr. Justice DESAI should be have done when the matter came up before him was to have decided whether the petition should be proceeded with or not. Various alternatives were open to the learned Judge. He might have decided that the petition should not be proceeded with and that it should be dismissed at that stage; he might have decided that the petition should be stayed and that no further action should be taken on the petition; or he might have decided that this was a case where the contributories and the creditors should be heard, that the petition should be advertised, and that the final hearing should be fixed for a particular date. If the learned Judge had made the order after considering these various alternatives and if he had done so after hearing the contention of the appellants and had come to the conclusion that there was no substance in their contention, then undoubtedly it could not be said that the learned Judge has not exercised his discretion. But as we have just pointed out, it is clear from the order of Mr. Justice DESAI and the absence of any indication in the judgment to the contrary that Mr. Justice DESAI felt that he was bound by the mandatory provisions of rule 733 and that he had to give effect to those provisions | 0 | 2,326 | 1,399 | ### 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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up of the company, in which case he may reject it. But if he chooses to accept it, the practice followed by this court - and that is the correct practice - is for the learned Judge to direct that a notice should be given to the company. This notice is for the purpose of enabling the company to show cause why the petition should not be proceeded with. In answer to the notice all that the respondent is entitled to urge is that for any justifiable reason the petition should not be proceeded with and further steps should not be taken. If the learned Judge is satisfied at that stage that the respondent has made out a proper case and has shown cause, he can dismiss the petition. If, on the other hand, the learned Judge feels that the respondent has not shown proper cause and that the petition must proceed to a final hearing on merits, he then makes the order under rule 733, directs the advertisement of the petition, and fixes the final hearing of the petition. This notice is essential because, as Mr. Purshottam has rightly pointed out, it is a very serious matter for any company to have the petition advertised without the company being heard in its defence. Mr. Desai was inclined cavalierly to suggest that after all what did it matter, the petition would be advertised and the appellant would be entitled to show cause on merits when the petition came on for hearing on the day fixed by Mr. Justice DESAI. But that is completely ignoring the effect and the serious effect that might be created by advertising the fact that a creditor has presented a petition for winding up against the company. It is precisely because of this that our practice insists upon a notice being issued to the company to enable the company to put before the court its contention why the petition should not be proceeded with, if that is the contention the respondent wishes to put forward.( 7 ) IN this case, unfortunately, the whole trouble has arisen because of the form in which Mr. Justice COYAJEE, with respect to him, made the order. He accepted the petition on November 11, 1955. Strictly, as the appellants were before him, he should have proceeded to hear the appellants as to whether the petition should be proceeded with or not. Instead of doing that, on that very day he postponed the hearing of that to December 2, 1955. The proper expression he should have used in his endorsement should have been : "petition put on board December 2, for further directions. " Instead of that, the learned Judge used the expression "hearing", and this expression is seized upon by Mr. Desai for the contention that the petition was accepted and that the hearing was fixed on December 2, which was ultimately taken up by Mr. Justice DESAI. It is clear that in view of rule 733 the learned Judge could not have fixed the final hearing of this petition on December 2. If he wanted to hear the petition on merits on that day, the petition had to be advertised and the procedure laid down in that rule had to be carried out. ( 8 ) MR. Desai says that the learned Judge must have overlooked the provisions of rule 733. We refuse to believe that Mr. Justice COYAJEE with his wide experience of company matters could possibly overlook the provisions of rule 733. It is clear that what the learned Judge intended was to hear the appellants on December 2, with regard to their contention that the petition should not be proceeded with, and this is borne out by the fact that Mr. Modi, the managing director of the appellants, has made an affidavit on December 1, 1955, setting out the grounds on which the petition was being resisted and to show why it should not be proceeded with. Therefore, when the matter ultimately came up before Mr. Justice DESAI, it was still at the stage of giving directions, and although we are told the matter was heard at great length by Mr. Justice DESAI, judging by the fact that the learned Judge has delivered no judgment and has merely given a direction as to the advertisement, the learned Judge seems to have taken the view that once the petition was accepted it was obligatory upon him to order advertisement of the petition. Now, as we have already pointed out, rule 733 does not take away the discretion of the Judge to consider whether the petition should be proceeded with or not. Therefore, what Mr. Justice DESAI should be have done when the matter came up before him was to have decided whether the petition should be proceeded with or not. Various alternatives were open to the learned Judge. He might have decided that the petition should not be proceeded with and that it should be dismissed at that stage; he might have decided that the petition should be stayed and that no further action should be taken on the petition; or he might have decided that this was a case where the contributories and the creditors should be heard, that the petition should be advertised, and that the final hearing should be fixed for a particular date. If the learned Judge had made the order after considering these various alternatives and if he had done so after hearing the contention of the appellants and had come to the conclusion that there was no substance in their contention, then undoubtedly it could not be said that the learned Judge has not exercised his discretion. But as we have just pointed out, it is clear from the order of Mr. Justice DESAI and the absence of any indication in the judgment to the contrary that Mr. Justice DESAI felt that he was bound by the mandatory provisions of rule 733 and that he had to give effect to those provisions.
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fails to make out a proper case for the winding up of the company, in which case he may reject it. But if he chooses to accept it, the practice followed by this courtand that is the correct practiceis for the learned Judge to direct that a notice should be given to the company. This notice is for the purpose of enabling the company to show cause why the petition should not be proceeded with. In answer to the notice all that the respondent is entitled to urge is that for any justifiable reason the petition should not be proceeded with and further steps should not be taken. If the learned Judge is satisfied at that stage that the respondent has made out a proper case and has shown cause, he can dismiss the petition. If, on the other hand, the learned Judge feels that the respondent has not shown proper cause and that the petition must proceed to a final hearing on merits, he then makes the order under rule 733, directs the advertisement of the petition, and fixes the final hearing of the petition. This notice is essential because, as Mr. Purshottam has rightly pointed out, it is a very serious matter for any company to have the petition advertised without the company being heard in its defence. Mr. Desai was inclined cavalierly to suggest that after all what did it matter, the petition would be advertised and the appellant would be entitled to show cause on merits when the petition came on for hearing on the day fixed by Mr. Justice DESAI. But that is completely ignoring the effect and the serious effect that might be created by advertising the fact that a creditor has presented a petition for winding up against the company. It is precisely because of this that our practice insists upon a notice being issued to the company to enable the company to put before the court its contention why the petition should not be proceeded with, if that is the contention the respondent wishes to put forward.( 7 ) IN this case, unfortunately, the whole trouble has arisen because of the form in which Mr. Justice COYAJEE, with respect to him, made the order. He accepted the petition on November 11, 1955. Strictly, as the appellants were before him, he should have proceeded to hear the appellants as to whether the petition should be proceeded with or not. Instead of doing that, on that very day he postponed the hearing of that to December 2, 1955. The proper expression he should have used in his endorsement should have been : "petition put on board December 2, for further directions. " Instead of that, the learned Judge used the expression "hearing", and this expression is seized upon by Mr. Desai for the contention that the petition was accepted and that the hearing was fixed on December 2, which was ultimately taken up by Mr. Justice DESAI. It is clear that in view of rule 733 the learned Judge could not have fixed the final hearing of this petition onIf he wanted to hear the petition on merits on that day, the petition had to be advertised and the procedure laid down in that rule had to be carried8 ) MR. Desai says that the learned Judge must have overlooked the provisions of rule 733. We refuse to believe that Mr. Justice COYAJEE with his wide experience of company matters could possibly overlook the provisions of rule 733. It is clear that what the learned Judge intended was to hear the appellants on December 2, with regard to their contention that the petition should not be proceeded with, and this is borne out by the fact that Mr. Modi, the managing director of the appellants, has made an affidavit on December 1, 1955, setting out the grounds on which the petition was being resisted and to show why it should not be proceeded with. Therefore, when the matter ultimately came up before Mr. Justice DESAI, it was still at the stage of giving directions, and although we are told the matter was heard at great length by Mr. Justice DESAI, judging by the fact that the learned Judge has delivered no judgment and has merely given a direction as to the advertisement, the learned Judge seems to have taken the view that once the petition was accepted it was obligatory upon him to order advertisement of the petition. Now, as we have already pointed out, rule 733 does not take away the discretion of the Judge to consider whether the petition should be proceeded with or not. Therefore, what Mr. Justice DESAI should be have done when the matter came up before him was to have decided whether the petition should be proceeded with or not. Various alternatives were open to the learned Judge. He might have decided that the petition should not be proceeded with and that it should be dismissed at that stage; he might have decided that the petition should be stayed and that no further action should be taken on the petition; or he might have decided that this was a case where the contributories and the creditors should be heard, that the petition should be advertised, and that the final hearing should be fixed for a particular date. If the learned Judge had made the order after considering these various alternatives and if he had done so after hearing the contention of the appellants and had come to the conclusion that there was no substance in their contention, then undoubtedly it could not be said that the learned Judge has not exercised his discretion. But as we have just pointed out, it is clear from the order of Mr. Justice DESAI and the absence of any indication in the judgment to the contrary that Mr. Justice DESAI felt that he was bound by the mandatory provisions of rule 733 and that he had to give effect to those provisions
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The Commissioner of Income Tax Vs. Reliance Utilities & Power Limited | of Rs.172,10,88,000/- were utilised for the purchase of fixed assets shown in Schedule D in terms of the balance sheet as on 31st March, 1999. It was submitted that the assessee had no reserve or own funds for making the investments in the sister concern and, therefore, borrowed funds had been utilised and interest on these investments are for non-business purposes and hence rightly disallowed by the Assessing Officer. On the other hand on behalf of the Assessee the learned Counsel relied on the order of C.I.T. (Appeal) and submitted that the assessee had total interest free fund of Rs.398 crores. From the facts on record the learned Tribunal was pleased to record a finding that the assessee had sufficient funds of its own for making the investment without using the interest bearing funds and accordingly upheld the order of C.I.T. (Appeal). It is this order which is the subject matter of the present Appeal.7. At the hearing of this Appeal on behalf of the Appellant learned Counsel submits that the order of the Tribunal is perverse in as much as the Tribunal ignored the fact that the respondent assessee had no interest free funds out its own. It is pointed out that in so far as the shareholders funds are concerned, in terms of the balance sheet as on 31st March, 1999 they were utilised for the purpose of purchase of fixed assets shown in Schedule D.On the other hand on behalf of the assessee the learned Counsel submits that the assessee company had generated sufficient interest free fund of its own which it utilized for its business, including investment in sister concerns and consequently no fault could be found with the order of the C.I.T. (Appeals) and/or the Tribunal. It was further submitted that once monies are available it is for the assessee to take a business decision for application of funds. The submission is that where there are both borrowed funds as also interest free funds, discretion lies in the hands of the assessee for utilisation of those funds. Reliance for that purpose was placed on the judgment of the Calcutta High Court in the case of Woolcombers of India Ltd. vs. Commissioner of Income-tax (Central), Calcutta, 134 ITR 219 . It was further submitted that the view taken by the Calcutta High Court had found approval by the Supreme Court in East India Pharmaceutical Works Ltd. vs. C.) Commissioner of Income-Tax 224 ITR 627 (S.C.). 8. We have heard learned Counsel for both the parties. In our opinion the very basis on which the Revenue had sought to contend or argue their case that the shareholders funds to the tune of over Rs.172 crores was utilised for the purpose of fixed assets in terms of the balance sheet as on 31st March, 1999, is fallacious. Firstly, we are not concerned with the balance sheet as of 31st March, 1999. What would be relevant would be balance sheet as on 31st March, 2000. Apart from that, the learned Counsel has been unable to point out to us from the balance sheet that the balance sheet as on 31st March, 1999 showed that the shareholders funds were utilised for the purpose of fixed assets. To our mind the profit and loss account and the balance sheet would not show whether shareholders funds have been utilised for investments. The argument has to be rejected on this count also. Apart from that we have noted earlier that both in the order of the C.I.T. (Appeals) as also the Appellate Tribunal, a clear finding is recorded that the assessee had interest free funds of its own which had been generated in the course of the year commencing from 1st April, 1999. Apart from that in terms of the balance sheet there was a further availability of Rs.398.19 crores including Rs.180 crores of share capital. In this context, in our opinion, the finding of fact recorded by C.I.T. (Appeals) and I.T.A.T. as to availability of interest free funds really cannot be faulted. 9. If there be interest free funds available to an assessee sufficient to meet its investments and at the same time the assessee had raised a loan it can be presumed that the investments were from the interest free funds available. In our opinion the Supreme Court in East India Pharmaceutical Works Ltd. (Supra) had the occasion to consider the decision of the Calcutta High Court in Woolcombers of India Ltd. (supra) where a similar issue had arisen.Before the Supreme Court it was argued that it should have been presumed that in essence and true character the taxes were paid out of the profits of the relevant year and not out of the overdraft account for the running of the business and in these circumstances the appellant was entitled to claim the deductions. The Supreme Court noted that the argument had considerable force, but considering the fact that the contention had not been advanced earlier it did not require to be answered. It then noted that in Woolcombers case (Supra) the Calcutta High Court had come to the conclusion that the profits were sufficient to meet the advance tax liability and the profits were deposited in the over draft account of the assessee and in such a case it should be presumed that the taxes were paid out of the profits of the year and not out of the overdraft account for the running of he business. It noted that to raise the presumption, there was sufficient material and the assessee had urged the contention before the High Court. The principle therefore would be that if there are funds available both interest free and over draft and/or loans taken, then a presumption would arise that investments would be out of the interest free fund generated or available with the company, if the interest free funds were sufficient to meet the investments. In this case this presumption is established considering the finding of fact both by the C.I.T. (Appeals) and I.T.A.T. | 0[ds]7. At the hearing of this Appeal on behalf of the Appellant learned Counsel submits that the order of the Tribunal is perverse in as much as the Tribunal ignored the fact that the respondent assessee had nos out its own. It is pointed out that in so far as the shareholders funds are concerned, in terms of the balance sheet as on 31st March, 1999 they were utilised for the purpose of purchase of fixed assets shown in Schedule D.On the other hand on behalf of the assessee the learned Counsel submits that the assessee company had generated sufficientinterest free fundof its own which it utilized for its business, including investment in sister concerns and consequently no fault could be found with the order of the C.I.T. (Appeals) and/or the Tribunal. It was further submitted that once monies are available it is for the assessee to take a business decision for application of funds. The submission is that where there are both borrowed funds as alsos, discretion lies in the hands of the assessee for utilisation of those funds. Reliance for that purpose was placed on the judgment of the Calcutta High Court in the case of Woolcombers of India Ltd. vs. Commissioner of(Central), Calcutta, 134 ITR 219 . It was further submitted that the view taken by the Calcutta High Court had found approval by the Supreme Court in East India Pharmaceutical Works Ltd. vs. C.) Commissioner of224 ITR 627 (S.C.).We have heard learned Counsel for both the parties. In our opinion the very basis on which the Revenue had sought to contend or argue their case that the shareholders funds to the tune of over Rs.172 crores was utilised for the purpose of fixed assets in terms of the balance sheet as on 31st March, 1999, is fallacious. Firstly, we are not concerned with the balance sheet as of 31st March, 1999. What would be relevant would be balance sheet as on 31st March, 2000. Apart from that, the learned Counsel has been unable to point out to us from the balance sheet that the balance sheet as on 31st March, 1999 showed that the shareholders funds were utilised for the purpose of fixed assets. To our mind the profit and loss account and the balance sheet would not show whether shareholders funds have been utilised for investments. The argument has to be rejected on this count also. Apart from that we have noted earlier that both in the order of the C.I.T. (Appeals) as also the Appellate Tribunal, a clear finding is recorded that the assessee hadfunds of its ownwhich had been generated in the course of the year commencing from 1st April, 1999. Apart from that in terms of the balance sheet there was a further availability of Rs.398.19 crores including Rs.180 crores of share capital. In this context, in our opinion, the finding of fact recorded by C.I.T. (Appeals) and I.T.A.T. as to availability ofs really cannot be faulted.If there bee funds availableto an assessee sufficient to meet its investments and at the same time the assessee had raised a loan it can be presumed that the investments were from thes available. In our opinion the Supreme Court in East India Pharmaceutical Works Ltd. (Supra) had the occasion to consider the decision of the Calcutta High Court in Woolcombers of India Ltd. (supra) where a similar issue had arisen.Before the Supreme Court it was argued that it should have been presumed that in essence and true character the taxes were paid out of the profits of the relevant year and not out of the overdraft account for the running of the business and in these circumstances the appellant was entitled to claim the deductions. The Supreme Court noted that the argument had considerable force, but considering the fact that the contention had not been advanced earlier it did not require to be answered. It then noted that in Woolcombers case (Supra) the Calcutta High Court had come to the conclusion that the profits were sufficient to meet the advance tax liability and the profits were deposited in the over draft account of the assessee and in such a case it should be presumed that the taxes were paid out of the profits of the year and not out of the overdraft account for the running of he business. It noted that to raise the presumption, there was sufficient material and the assessee had urged the contention before the High Court. The principle therefore would be that if thereoth interest free and over draft and/or loans taken, then a presumption would arise that investments would be out of theinterest free fundgenerated or available with the company, if thes were sufficient to meet the investments. In this case this presumption is established considering the finding of fact both by the C.I.T. (Appeals) and I.T.A.T. | 0 | 1,862 | 877 | ### 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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of Rs.172,10,88,000/- were utilised for the purchase of fixed assets shown in Schedule D in terms of the balance sheet as on 31st March, 1999. It was submitted that the assessee had no reserve or own funds for making the investments in the sister concern and, therefore, borrowed funds had been utilised and interest on these investments are for non-business purposes and hence rightly disallowed by the Assessing Officer. On the other hand on behalf of the Assessee the learned Counsel relied on the order of C.I.T. (Appeal) and submitted that the assessee had total interest free fund of Rs.398 crores. From the facts on record the learned Tribunal was pleased to record a finding that the assessee had sufficient funds of its own for making the investment without using the interest bearing funds and accordingly upheld the order of C.I.T. (Appeal). It is this order which is the subject matter of the present Appeal.7. At the hearing of this Appeal on behalf of the Appellant learned Counsel submits that the order of the Tribunal is perverse in as much as the Tribunal ignored the fact that the respondent assessee had no interest free funds out its own. It is pointed out that in so far as the shareholders funds are concerned, in terms of the balance sheet as on 31st March, 1999 they were utilised for the purpose of purchase of fixed assets shown in Schedule D.On the other hand on behalf of the assessee the learned Counsel submits that the assessee company had generated sufficient interest free fund of its own which it utilized for its business, including investment in sister concerns and consequently no fault could be found with the order of the C.I.T. (Appeals) and/or the Tribunal. It was further submitted that once monies are available it is for the assessee to take a business decision for application of funds. The submission is that where there are both borrowed funds as also interest free funds, discretion lies in the hands of the assessee for utilisation of those funds. Reliance for that purpose was placed on the judgment of the Calcutta High Court in the case of Woolcombers of India Ltd. vs. Commissioner of Income-tax (Central), Calcutta, 134 ITR 219 . It was further submitted that the view taken by the Calcutta High Court had found approval by the Supreme Court in East India Pharmaceutical Works Ltd. vs. C.) Commissioner of Income-Tax 224 ITR 627 (S.C.). 8. We have heard learned Counsel for both the parties. In our opinion the very basis on which the Revenue had sought to contend or argue their case that the shareholders funds to the tune of over Rs.172 crores was utilised for the purpose of fixed assets in terms of the balance sheet as on 31st March, 1999, is fallacious. Firstly, we are not concerned with the balance sheet as of 31st March, 1999. What would be relevant would be balance sheet as on 31st March, 2000. Apart from that, the learned Counsel has been unable to point out to us from the balance sheet that the balance sheet as on 31st March, 1999 showed that the shareholders funds were utilised for the purpose of fixed assets. To our mind the profit and loss account and the balance sheet would not show whether shareholders funds have been utilised for investments. The argument has to be rejected on this count also. Apart from that we have noted earlier that both in the order of the C.I.T. (Appeals) as also the Appellate Tribunal, a clear finding is recorded that the assessee had interest free funds of its own which had been generated in the course of the year commencing from 1st April, 1999. Apart from that in terms of the balance sheet there was a further availability of Rs.398.19 crores including Rs.180 crores of share capital. In this context, in our opinion, the finding of fact recorded by C.I.T. (Appeals) and I.T.A.T. as to availability of interest free funds really cannot be faulted. 9. If there be interest free funds available to an assessee sufficient to meet its investments and at the same time the assessee had raised a loan it can be presumed that the investments were from the interest free funds available. In our opinion the Supreme Court in East India Pharmaceutical Works Ltd. (Supra) had the occasion to consider the decision of the Calcutta High Court in Woolcombers of India Ltd. (supra) where a similar issue had arisen.Before the Supreme Court it was argued that it should have been presumed that in essence and true character the taxes were paid out of the profits of the relevant year and not out of the overdraft account for the running of the business and in these circumstances the appellant was entitled to claim the deductions. The Supreme Court noted that the argument had considerable force, but considering the fact that the contention had not been advanced earlier it did not require to be answered. It then noted that in Woolcombers case (Supra) the Calcutta High Court had come to the conclusion that the profits were sufficient to meet the advance tax liability and the profits were deposited in the over draft account of the assessee and in such a case it should be presumed that the taxes were paid out of the profits of the year and not out of the overdraft account for the running of he business. It noted that to raise the presumption, there was sufficient material and the assessee had urged the contention before the High Court. The principle therefore would be that if there are funds available both interest free and over draft and/or loans taken, then a presumption would arise that investments would be out of the interest free fund generated or available with the company, if the interest free funds were sufficient to meet the investments. In this case this presumption is established considering the finding of fact both by the C.I.T. (Appeals) and I.T.A.T.
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7. At the hearing of this Appeal on behalf of the Appellant learned Counsel submits that the order of the Tribunal is perverse in as much as the Tribunal ignored the fact that the respondent assessee had nos out its own. It is pointed out that in so far as the shareholders funds are concerned, in terms of the balance sheet as on 31st March, 1999 they were utilised for the purpose of purchase of fixed assets shown in Schedule D.On the other hand on behalf of the assessee the learned Counsel submits that the assessee company had generated sufficientinterest free fundof its own which it utilized for its business, including investment in sister concerns and consequently no fault could be found with the order of the C.I.T. (Appeals) and/or the Tribunal. It was further submitted that once monies are available it is for the assessee to take a business decision for application of funds. The submission is that where there are both borrowed funds as alsos, discretion lies in the hands of the assessee for utilisation of those funds. Reliance for that purpose was placed on the judgment of the Calcutta High Court in the case of Woolcombers of India Ltd. vs. Commissioner of(Central), Calcutta, 134 ITR 219 . It was further submitted that the view taken by the Calcutta High Court had found approval by the Supreme Court in East India Pharmaceutical Works Ltd. vs. C.) Commissioner of224 ITR 627 (S.C.).We have heard learned Counsel for both the parties. In our opinion the very basis on which the Revenue had sought to contend or argue their case that the shareholders funds to the tune of over Rs.172 crores was utilised for the purpose of fixed assets in terms of the balance sheet as on 31st March, 1999, is fallacious. Firstly, we are not concerned with the balance sheet as of 31st March, 1999. What would be relevant would be balance sheet as on 31st March, 2000. Apart from that, the learned Counsel has been unable to point out to us from the balance sheet that the balance sheet as on 31st March, 1999 showed that the shareholders funds were utilised for the purpose of fixed assets. To our mind the profit and loss account and the balance sheet would not show whether shareholders funds have been utilised for investments. The argument has to be rejected on this count also. Apart from that we have noted earlier that both in the order of the C.I.T. (Appeals) as also the Appellate Tribunal, a clear finding is recorded that the assessee hadfunds of its ownwhich had been generated in the course of the year commencing from 1st April, 1999. Apart from that in terms of the balance sheet there was a further availability of Rs.398.19 crores including Rs.180 crores of share capital. In this context, in our opinion, the finding of fact recorded by C.I.T. (Appeals) and I.T.A.T. as to availability ofs really cannot be faulted.If there bee funds availableto an assessee sufficient to meet its investments and at the same time the assessee had raised a loan it can be presumed that the investments were from thes available. In our opinion the Supreme Court in East India Pharmaceutical Works Ltd. (Supra) had the occasion to consider the decision of the Calcutta High Court in Woolcombers of India Ltd. (supra) where a similar issue had arisen.Before the Supreme Court it was argued that it should have been presumed that in essence and true character the taxes were paid out of the profits of the relevant year and not out of the overdraft account for the running of the business and in these circumstances the appellant was entitled to claim the deductions. The Supreme Court noted that the argument had considerable force, but considering the fact that the contention had not been advanced earlier it did not require to be answered. It then noted that in Woolcombers case (Supra) the Calcutta High Court had come to the conclusion that the profits were sufficient to meet the advance tax liability and the profits were deposited in the over draft account of the assessee and in such a case it should be presumed that the taxes were paid out of the profits of the year and not out of the overdraft account for the running of he business. It noted that to raise the presumption, there was sufficient material and the assessee had urged the contention before the High Court. The principle therefore would be that if thereoth interest free and over draft and/or loans taken, then a presumption would arise that investments would be out of theinterest free fundgenerated or available with the company, if thes were sufficient to meet the investments. In this case this presumption is established considering the finding of fact both by the C.I.T. (Appeals) and I.T.A.T.
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Raymond Ltd. Vs. State Of Chhattisgarh | as to whether an endorsement had been made thereupon or not. 23. Strong reliance has been placed by Mr. Desai on The Chief Controlling Revenue Authority, Board of Revenue, Madras v. Dr. K. Manjunatha Rai [AIR 1977 Madras 10], wherein a Special Bench of the Madras High Court has read finality and conclusiveness in an order passed under Section 32 of the Act. In absence of power of revision, the determination made under Section 31 of the Act and consequent certificate granted in terms of Section 32 of the Act was to be final. But, when a judicial or quasi judicial order is subject to revision, the same cannot be said to be final. 24. Strong reliance has also been placed by Mr. Desai on a decision of this Court in Ashok Leyland Ltd. v. State of T.N. [(2004) 3 SCC 1] , wherein inter alia it was noticed: "69. The Court went further to quote the position taken in St. Aubyn v. Attorney General, [(1951) 2 All ER 473] wherein Lord Radcliffe observed thus, "The word deemed is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense impossible." 70. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. it was stated that the purpose and object of creating a legal fiction in the statute is well known. But when a legal fiction is created it must be given its full effect. It was held in East End Dwellings Co. Ltd. v. Finsbury Borough Council [(1951) 2 All ER 587]: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." 25. It must, however, be noticed that therein the court has also noticed a decision of this Court in Consolidated Coffee Ltd. v. Coffee Board [(1995) 1 SCC 312] wherein it has been held that mere use of the word "deemed" is itself not sufficient to set up a legal fiction. 26. Furthermore, it is not the law that the court, irrespective of the nature, purport and object of the statute, shall assign a meaning which was not intended to be given by the Legislature. Legal fiction created in terms of Sub-section (3) of Section 32 of the Act was only in regard to the receivability of instrument in evidence. The legal fiction for the aforementioned purpose is raised only to the extent that for the said purposes it shall be deemed to have been originally duly stamped, viz., the determination of chargeability of additional duty would be no significance if the additional duty determined by the Collector, if any, has been deposited. 27. In Maruti Udyog Ltd. v. Ram Lal and Others, [(2005) 2 SCC 638] , this Court held: "35. In construing a legal fiction the purpose for which it is created should be kept in mind and should not be extended beyond the scope thereof or beyond the language by which it is created. Furthermore, it is well-known that a deeming provision cannot be pushed too tar so as to result in an anomalous or absurd position. The Court must remind itself that the expressions like "as if is adopted in law for a limited purpose and there cannot be any justification to extend the same beyond the purpose for which the legislature adopted it." [See also Ishikawajma-Harima Heavy Industries Ltd. v. Director of Income Tax, Mumbai, 2007 (1) SCALE 140 ] 28. We, however, accept that if the meaning of the provision of a statute is clear and explicit, it is not necessary to advert to the objects and reasons thereof in view of the decisions of this Court in Aswini Kumar Ghose v. Arabinda Bose [1953 SCR 1] and State of W.B. v. Union of India [(1964) 1 SCR 371] , as by taking recourse to the statements of Objects and Reasons, the generality of the words used in the statute cannot be cut down. It is axiomatic that an extended meaning thereof also cannot be given. If the contention of Mr. Desai is accepted, an extended meaning will have to be assigned to Sub-section (3) of Section 32 of the Act which is not contemplated under the statute.29. Reliance placed by Mr. Desai on Section 53A of the Act, as amended by the Bombay Stamp Act, is again of no assistance inasmuch as an object can be achieved by different legislature by using different terms. Section 53A of the Bombay Stamp Act makes Section 32 subject to Section 53A. It was probably done by way of abundant caution. If a higher forum is provided, an order passed by a lower authority, whether the term "subject to" is used or not, shall be subservient thereto. When determination made by a statutory authority is capable of being challenged by way of revision, it is axiomatic that only the revisional order shall be final and not the order of the original authority.30. It is trite that no court can direct a matter to be governed by a statute other than that which is really applicable. [See Neeraj Munjal and Others (III) v. Atul Grover and Another, (2005) 5 SCC 404 ] | 0[ds]14. It is true that(2) of Section 56 of the Act does not refer to Section 32 but the same, in our opinion, was not necessary.(4) of Section 56 was inserted by way of a State Amendment. The intention of the legislature in inserting the said provision is clear and explicit as by reason thereof a power of revision has been conferred upon the highest authority of Revenue in the State, viz., Board of Revenue. The revisional power is to be exercised by the Board of Revenue either on its own motion or on an application by any party. The term "any party" used in the said provision is of some significance. By reason of the said provision, not only the State but also the person who had filed an application under Section 31 of the Act, thus, may file a revision application before the Board of Revenue. The terms "any party", therefore, implies both the parties to the lis and not the party filing an application under Section 31 of the Act alone. The revisional power is to be exercised by the Board so as to enable it to satisfy itself in regard to the amount with which the instrument is chargeable with duty. The revisional proceeding has a direct nexus with determination of an instrument being charged with duty and not the endorsement made thereupon at a subsequent stage.15. Submission of Mr. Ashok Desai, learned senior counsel appearing on behalf of the appellants, that the question of chargeability of an instrument with duty arises only at the stage of Section 31 of the Act and not under Section 32 thereof, and thus, the Board of Revenue would have no jurisdiction in the matter, cannot be accepted. Determination by the Collector is under Section 31 of the Act. Thus, it is only that order which can be the subject matter of revisional application.If the applicant intends to challenge the said order before the revisional authority, evidently it would not deposit the amount. However, only because the determination by the Collector has been accepted pursuant whereto a certificate has been issued, by itself cannot be held to be binding upon the State.18. The Act deals with a fiscal matter. It was indisputably enacted keeping in mind the revenue of the State, The amendment has been carried out to see that no evasion in regard to collection of actual stamp duty payable on instruments takes place. The Act provides for determination of such amount at different stages.19. If an application under Section 31 of the Act is not filed, it would be for the Registrar to do so at the time when the document is presented for registration in which event the matter would be referred to the Collector.In absence of any finality clause, it is difficult to comprehend that the right of the parties to approach the revisional authority in terms of(4) of Section 56 of the Act shall stand denuded. The said provision also must be given full effect to. It cannot be said that the revisional authority although is conferred with a power to satisfy itself as to the correctness or otherwise of the order of the Collector determining the quantum of stamp duty payable to an instrument, it would not have any jurisdiction to do so only because the order was accepted by one party to the dispute.We, however, accept that if the meaning of the provision of a statute is clear and explicit, it is not necessary to advert to the objects and reasons thereof in view of the decisions of this Court in Aswini Kumar Ghose v. Arabinda Bose [1953 SCR 1] and State of W.B. v. Union of India [(1964) 1 SCR 371] , as by taking recourse to the statements of Objects and Reasons, the generality of the words used in the statute cannot be cut down. It is axiomatic that an extended meaning thereof also cannot be given. If the contention of Mr. Desai is accepted, an extended meaning will have to be assigned to(3) of Section 32 of the Act which is not contemplated under the statute.29. Reliance placed by Mr. Desai on Section 53A of the Act, as amended by the Bombay Stamp Act, is again of no assistance inasmuch as an object can be achieved by different legislature by using different terms. Section 53A of the Bombay Stamp Act makes Section 32 subject to Section 53A. It was probably done by way of abundant caution. If a higher forum is provided, an order passed by a lower authority, whether the term "subject to" is used or not, shall be subservient thereto. When determination made by a statutory authority is capable of being challenged by way of revision, it is axiomatic that only the revisional order shall be final and not the order of the original authority.30. It is trite that no court can direct a matter to be governed by a statute other than that which is really applicable. [See Neeraj Munjal and Others (III) v. Atul Grover and Another, (2005) 5 SCC 404 ] | 0 | 3,774 | 947 | ### 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:
as to whether an endorsement had been made thereupon or not. 23. Strong reliance has been placed by Mr. Desai on The Chief Controlling Revenue Authority, Board of Revenue, Madras v. Dr. K. Manjunatha Rai [AIR 1977 Madras 10], wherein a Special Bench of the Madras High Court has read finality and conclusiveness in an order passed under Section 32 of the Act. In absence of power of revision, the determination made under Section 31 of the Act and consequent certificate granted in terms of Section 32 of the Act was to be final. But, when a judicial or quasi judicial order is subject to revision, the same cannot be said to be final. 24. Strong reliance has also been placed by Mr. Desai on a decision of this Court in Ashok Leyland Ltd. v. State of T.N. [(2004) 3 SCC 1] , wherein inter alia it was noticed: "69. The Court went further to quote the position taken in St. Aubyn v. Attorney General, [(1951) 2 All ER 473] wherein Lord Radcliffe observed thus, "The word deemed is used a great deal in modern legislation. Sometimes it is used to impose for the purposes of a statute an artificial construction of a word or phrase that would not otherwise prevail. Sometimes it is used to put beyond doubt a particular construction that might otherwise be uncertain. Sometimes it is used to give a comprehensive description that includes what is obvious, what is uncertain and what is, in the ordinary sense impossible." 70. In Bhavnagar University v. Palitana Sugar Mill (P) Ltd. it was stated that the purpose and object of creating a legal fiction in the statute is well known. But when a legal fiction is created it must be given its full effect. It was held in East End Dwellings Co. Ltd. v. Finsbury Borough Council [(1951) 2 All ER 587]: "If you are bidden to treat an imaginary state of affairs as real, you must surely, unless prohibited from doing so, also imagine as real the consequences and incidents which, if the putative state of affairs had in fact existed, must inevitably have flowed from or accompanied it. One of these in this case is emancipation from the 1939 level of rents. The statute says that you must imagine a certain state of affairs; it does not say that having done so, you must cause or permit your imagination to boggle when it comes to the inevitable corollaries of that state of affairs." 25. It must, however, be noticed that therein the court has also noticed a decision of this Court in Consolidated Coffee Ltd. v. Coffee Board [(1995) 1 SCC 312] wherein it has been held that mere use of the word "deemed" is itself not sufficient to set up a legal fiction. 26. Furthermore, it is not the law that the court, irrespective of the nature, purport and object of the statute, shall assign a meaning which was not intended to be given by the Legislature. Legal fiction created in terms of Sub-section (3) of Section 32 of the Act was only in regard to the receivability of instrument in evidence. The legal fiction for the aforementioned purpose is raised only to the extent that for the said purposes it shall be deemed to have been originally duly stamped, viz., the determination of chargeability of additional duty would be no significance if the additional duty determined by the Collector, if any, has been deposited. 27. In Maruti Udyog Ltd. v. Ram Lal and Others, [(2005) 2 SCC 638] , this Court held: "35. In construing a legal fiction the purpose for which it is created should be kept in mind and should not be extended beyond the scope thereof or beyond the language by which it is created. Furthermore, it is well-known that a deeming provision cannot be pushed too tar so as to result in an anomalous or absurd position. The Court must remind itself that the expressions like "as if is adopted in law for a limited purpose and there cannot be any justification to extend the same beyond the purpose for which the legislature adopted it." [See also Ishikawajma-Harima Heavy Industries Ltd. v. Director of Income Tax, Mumbai, 2007 (1) SCALE 140 ] 28. We, however, accept that if the meaning of the provision of a statute is clear and explicit, it is not necessary to advert to the objects and reasons thereof in view of the decisions of this Court in Aswini Kumar Ghose v. Arabinda Bose [1953 SCR 1] and State of W.B. v. Union of India [(1964) 1 SCR 371] , as by taking recourse to the statements of Objects and Reasons, the generality of the words used in the statute cannot be cut down. It is axiomatic that an extended meaning thereof also cannot be given. If the contention of Mr. Desai is accepted, an extended meaning will have to be assigned to Sub-section (3) of Section 32 of the Act which is not contemplated under the statute.29. Reliance placed by Mr. Desai on Section 53A of the Act, as amended by the Bombay Stamp Act, is again of no assistance inasmuch as an object can be achieved by different legislature by using different terms. Section 53A of the Bombay Stamp Act makes Section 32 subject to Section 53A. It was probably done by way of abundant caution. If a higher forum is provided, an order passed by a lower authority, whether the term "subject to" is used or not, shall be subservient thereto. When determination made by a statutory authority is capable of being challenged by way of revision, it is axiomatic that only the revisional order shall be final and not the order of the original authority.30. It is trite that no court can direct a matter to be governed by a statute other than that which is really applicable. [See Neeraj Munjal and Others (III) v. Atul Grover and Another, (2005) 5 SCC 404 ]
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14. It is true that(2) of Section 56 of the Act does not refer to Section 32 but the same, in our opinion, was not necessary.(4) of Section 56 was inserted by way of a State Amendment. The intention of the legislature in inserting the said provision is clear and explicit as by reason thereof a power of revision has been conferred upon the highest authority of Revenue in the State, viz., Board of Revenue. The revisional power is to be exercised by the Board of Revenue either on its own motion or on an application by any party. The term "any party" used in the said provision is of some significance. By reason of the said provision, not only the State but also the person who had filed an application under Section 31 of the Act, thus, may file a revision application before the Board of Revenue. The terms "any party", therefore, implies both the parties to the lis and not the party filing an application under Section 31 of the Act alone. The revisional power is to be exercised by the Board so as to enable it to satisfy itself in regard to the amount with which the instrument is chargeable with duty. The revisional proceeding has a direct nexus with determination of an instrument being charged with duty and not the endorsement made thereupon at a subsequent stage.15. Submission of Mr. Ashok Desai, learned senior counsel appearing on behalf of the appellants, that the question of chargeability of an instrument with duty arises only at the stage of Section 31 of the Act and not under Section 32 thereof, and thus, the Board of Revenue would have no jurisdiction in the matter, cannot be accepted. Determination by the Collector is under Section 31 of the Act. Thus, it is only that order which can be the subject matter of revisional application.If the applicant intends to challenge the said order before the revisional authority, evidently it would not deposit the amount. However, only because the determination by the Collector has been accepted pursuant whereto a certificate has been issued, by itself cannot be held to be binding upon the State.18. The Act deals with a fiscal matter. It was indisputably enacted keeping in mind the revenue of the State, The amendment has been carried out to see that no evasion in regard to collection of actual stamp duty payable on instruments takes place. The Act provides for determination of such amount at different stages.19. If an application under Section 31 of the Act is not filed, it would be for the Registrar to do so at the time when the document is presented for registration in which event the matter would be referred to the Collector.In absence of any finality clause, it is difficult to comprehend that the right of the parties to approach the revisional authority in terms of(4) of Section 56 of the Act shall stand denuded. The said provision also must be given full effect to. It cannot be said that the revisional authority although is conferred with a power to satisfy itself as to the correctness or otherwise of the order of the Collector determining the quantum of stamp duty payable to an instrument, it would not have any jurisdiction to do so only because the order was accepted by one party to the dispute.We, however, accept that if the meaning of the provision of a statute is clear and explicit, it is not necessary to advert to the objects and reasons thereof in view of the decisions of this Court in Aswini Kumar Ghose v. Arabinda Bose [1953 SCR 1] and State of W.B. v. Union of India [(1964) 1 SCR 371] , as by taking recourse to the statements of Objects and Reasons, the generality of the words used in the statute cannot be cut down. It is axiomatic that an extended meaning thereof also cannot be given. If the contention of Mr. Desai is accepted, an extended meaning will have to be assigned to(3) of Section 32 of the Act which is not contemplated under the statute.29. Reliance placed by Mr. Desai on Section 53A of the Act, as amended by the Bombay Stamp Act, is again of no assistance inasmuch as an object can be achieved by different legislature by using different terms. Section 53A of the Bombay Stamp Act makes Section 32 subject to Section 53A. It was probably done by way of abundant caution. If a higher forum is provided, an order passed by a lower authority, whether the term "subject to" is used or not, shall be subservient thereto. When determination made by a statutory authority is capable of being challenged by way of revision, it is axiomatic that only the revisional order shall be final and not the order of the original authority.30. It is trite that no court can direct a matter to be governed by a statute other than that which is really applicable. [See Neeraj Munjal and Others (III) v. Atul Grover and Another, (2005) 5 SCC 404 ]
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Commissioner of Income Tax Tamil Nadu Vs. Dynavision Limited | 1. Assessee is a private limited company. It carries on the business of manufacture and sale of television sets. For the Assessment Year 1987-88 the AO while computing the Assessment under Section 143(3) found that the Assessee had not included in the closing stock the element of excise duty. Accordingly, he added a sum of Rs.16,39,000/- to the income of the Assessee on the ground of undervaluation of closing stock. The question before us is whether the department is right in alleging that the closing stock is undervalued to the extent of Rs.16,39,000/-. 2. At the outset, it may be stated, that, it is not in dispute that the Assessee has been following consistently the method of valuation of closing stock which is "cost or market price whichever is lower." Moreover, the AO conceded before the CIT(A) that he revalued the closing stock without making any adjustment to the opening stock (see: page 50 of the Paper Book). Lastly, though under Section 3 of the Central Excise Act, 1944, the levy of excise duty is on the manufacture of the finished product the same is quantified and collected on the value (i.e. selling price).3. Before concluding, we may rely on judgment of this Court in the case of Chainrup Sampatram v. CIT, (1953) 24 ITR 481 (SC) reported in 24 ITR 481 in which it has been held that, "....valuation of unsold stock at the close of the accounting period was a necessary part of the process of determining the trading results of that period. It cannot be regarded as source of profits. That, the true purpose of crediting the value of unsold stock is to balance the cost of the goods entered on the other side of the account at the time of the purchase, so that on cancelling out of the entries relating to the same stock from both sides of the account would leave only the transactions in which actual sales in the course of the year has taken place and thereby showing the profit or loss actually realized on the years trading. The entry for stock which appears in the trading account is intended to cancel the charge for the goods bought which have remained unsold which should represent the cost of the goods". (See also: para 8 of the judgment of this Court in the case of p. 709.) 4. For the above reasons, we hold, that, the | 0[ds]2. At the outset, it may be stated, that, it is not in dispute that the Assessee has been following consistently the method of valuation of closing stock which is "cost or market price whichever is lower." Moreover, the AO conceded before the CIT(A) that he revalued the closing stock without making any adjustment to the opening stock (see: page 50 of the Paper Book). Lastly, though under Section 3 of the Central Excise Act, 1944, the levy of excise duty is on the manufacture of the finished product the same is quantified and collected on the value (i.e. selling price).3. Before concluding, we may rely on judgment of this Court in the case of Chainrup Sampatram v. CIT, (1953) 24 ITR 481 (SC) reported in 24 ITR 481 in which it has been heldof unsold stock at the close of the accounting period was a necessary part of the process of determining the trading results of that period. It cannot be regarded as source of profits. That, the true purpose of crediting the value of unsold stock is to balance the cost of the goods entered on the other side of the account at the time of the purchase, so that on cancelling out of the entries relating to the same stock from both sides of the account would leave only the transactions in which actual sales in the course of the year has taken place and thereby showing the profit or loss actually realized on the years trading. The entry for stock which appears in the trading account is intended to cancel the charge for the goods bought which have remained unsold which should represent the cost of the goods". | 0 | 462 | 323 | ### Instruction:
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1. Assessee is a private limited company. It carries on the business of manufacture and sale of television sets. For the Assessment Year 1987-88 the AO while computing the Assessment under Section 143(3) found that the Assessee had not included in the closing stock the element of excise duty. Accordingly, he added a sum of Rs.16,39,000/- to the income of the Assessee on the ground of undervaluation of closing stock. The question before us is whether the department is right in alleging that the closing stock is undervalued to the extent of Rs.16,39,000/-. 2. At the outset, it may be stated, that, it is not in dispute that the Assessee has been following consistently the method of valuation of closing stock which is "cost or market price whichever is lower." Moreover, the AO conceded before the CIT(A) that he revalued the closing stock without making any adjustment to the opening stock (see: page 50 of the Paper Book). Lastly, though under Section 3 of the Central Excise Act, 1944, the levy of excise duty is on the manufacture of the finished product the same is quantified and collected on the value (i.e. selling price).3. Before concluding, we may rely on judgment of this Court in the case of Chainrup Sampatram v. CIT, (1953) 24 ITR 481 (SC) reported in 24 ITR 481 in which it has been held that, "....valuation of unsold stock at the close of the accounting period was a necessary part of the process of determining the trading results of that period. It cannot be regarded as source of profits. That, the true purpose of crediting the value of unsold stock is to balance the cost of the goods entered on the other side of the account at the time of the purchase, so that on cancelling out of the entries relating to the same stock from both sides of the account would leave only the transactions in which actual sales in the course of the year has taken place and thereby showing the profit or loss actually realized on the years trading. The entry for stock which appears in the trading account is intended to cancel the charge for the goods bought which have remained unsold which should represent the cost of the goods". (See also: para 8 of the judgment of this Court in the case of p. 709.) 4. For the above reasons, we hold, that, the
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### Explanation:
2. At the outset, it may be stated, that, it is not in dispute that the Assessee has been following consistently the method of valuation of closing stock which is "cost or market price whichever is lower." Moreover, the AO conceded before the CIT(A) that he revalued the closing stock without making any adjustment to the opening stock (see: page 50 of the Paper Book). Lastly, though under Section 3 of the Central Excise Act, 1944, the levy of excise duty is on the manufacture of the finished product the same is quantified and collected on the value (i.e. selling price).3. Before concluding, we may rely on judgment of this Court in the case of Chainrup Sampatram v. CIT, (1953) 24 ITR 481 (SC) reported in 24 ITR 481 in which it has been heldof unsold stock at the close of the accounting period was a necessary part of the process of determining the trading results of that period. It cannot be regarded as source of profits. That, the true purpose of crediting the value of unsold stock is to balance the cost of the goods entered on the other side of the account at the time of the purchase, so that on cancelling out of the entries relating to the same stock from both sides of the account would leave only the transactions in which actual sales in the course of the year has taken place and thereby showing the profit or loss actually realized on the years trading. The entry for stock which appears in the trading account is intended to cancel the charge for the goods bought which have remained unsold which should represent the cost of the goods".
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State Bank Of India Vs. Gracure Pharmaceuticals Ltd | it does not contemplate unity of distinct and separate cause of action. On the above-mentioned legal principle, let us examine whether the High Court has correctly applied the legal principle in the instant case. 13. We have gone through the plaints and the averments contained in both the suits in extenso and also the reliefs claimed in both the suits. Respondents had availed of various credit facilities from the State Bank of India. It had an export order from M/s Medipharma Company, France who had opened two Letters of Credit. The first Letter of Credit was opened with CDN and second Letter of Credit was opened with BNP. The date of issue of first Letter of Credit by CDN was 16.01.2001 and it was to expire on 10.04.2001. Similarly, second Letter of Credit opened with BNP was issued on 16.01.2001 and was to expire on 30.04.2001. On 20.03.2001, proceeds of the export deal were paid by the bank honouring the bills of exchange against the Letter of Credit opened with CDN and credited the same to the account of the respondent on the understanding that in case the relevant documents were accepted by the opening owner/issuing bank for any reason whatsoever, the respondent was liable to repay to the bank, without demur or demand, the amount of the bills/documents along with overdue interest and other charges. Other clauses were also incorporated so as to safeguard the interest of the bank. On 28.03.2001, the bank honoured the bills of exchange against the LC opened with BNP subject to the various conditions. The amount was credited to the account of the respondent subject to realization of LC. Since the amount of the LC was not received with the issuing bank on 01.05.2001, the amount was debited to the account of the respondent on account of non-receipt of LC from CDN. Similarly, the amount of LC having not received from the issuing bank by 14.06.2001, the amount was debited to the account of the respondent for non-receipt of LC from BNP. 14. The bank sent various letters to the respondent to regularize the accounts. Since the accounts were not regularized, the bank decided not to grant further facility. The respondent then on receipt of the payment from the foreign buyer and having failed to take any steps to realize the payment from the buyer or issuing bank, filed a complaint on 30.09.2001 with the Banking Ombudsman against the bank on account of reversing the entry on non-receipt of payment of LCs. The complaint filed by the respondent was, however, later withdrawn. The bank’s stand is that closure of account was done on 20.03.2002 due to the fault of the respondent on non-regularization of their accounts i.e. after non-receipt of payment of LC, the amount became irregular and remained so continuously. Let us now examine the averments contained in paragraph 37 of the subsequent suit No.288/03/04 of 2003 in the above perspective. Paragraph 37 is extracted hereinbelow for easy reference: “37. That the cause of action to file the present suit accrued in favour of the plaintiff and against the Defendants on all those occasions when the Defendants wrote various letters to the Plaintiff threatening initiate or actually initiating action against the Plaintiff in relation to various credit facilities which were being enjoyed by the Plaintiff. The cause of action to file the present suit accrued further in favour of the Plaintiff and against the Defendants on all those occasions when the Defendants actually initiated action against the Plaintiff in relation to various credit facilities, which were being enjoyed by the plaintiff and thereby did not provide the said facilities to the Plaintiff. The cause of action further accrued when the Defendants wrote letter dated 20.03.2002 to the Plaintiff conveying their decision to unilaterally and illegally rescind and contract between the parties and thereby stopping all credit facilities to the Plaintiff. The cause of action accrued further when on 26.3.2002, the general Manager (Commercial) of the Defendant No.1 did not intervene to stop the arbitrary and illegal action of the concerned officers of the Industrial Finance Branch. The cause of action accrued further when prior to filing of the suit, the Plaintiff through its counsel, issued and served upon the Defendants a legal notice dated 24.12.2002. The cause of action is still continuing and subsisting.” 15. When we go through the above quoted paragraph it is clear that the facts on the basis of which subsequent suit was filed, existed on the date on which the earlier suit was filed. The earlier suit was filed on 15.03.2003 and subsequent suit was filed on 21.05.2003. No fresh cause of action arose in between the first suit and the second suit. The closure of account, as already indicated, was intimated on 20.03.2002 due to the alleged fault of the respondent in not regularizing their accounts i.e. after non-receipt of payment of LC, the account became irregular. When the first suit for recovery of dues was filed i.e. on 15.03.2001 for alleged relief, damages sought for in the subsequent suit could have also been sought for. Order 2 Rule 2 provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action. Respondent is not entitled to split the cause of action into parts by filing separate suits. We find, as such, that respondent had omitted certain reliefs which were available to it at the time of filing of the first suit and after having relinquished the same, it cannot file a separate suit in view of the provisions of sub-rule 2 of Order 2 Rule 2, CPC. The object of Order 2 Rule 2 is to avoid multiplicity of proceedings and not to vex the parties over and again in a litigative process. The object enunciated in Order 2 Rule 2, CPC is laudable and it has a larger public purpose to achieve by not burdening the court with repeated suits. 16. | 1[ds]15. When we go through the above quoted paragraph it is clear that the facts on the basis of which subsequent suit was filed, existed on the date on which the earlier suit was filed. The earlier suit was filed on 15.03.2003 and subsequent suit was filed on 21.05.2003. No fresh cause of action arose in between the first suit and the second suit. The closure of account, as already indicated, was intimated on 20.03.2002 due to the alleged fault of the respondent in not regularizing their accounts i.e. after non-receipt of payment of LC, the account became irregular. When the first suit for recovery of dues was filed i.e. on 15.03.2001 for alleged relief, damages sought for in the subsequent suit could have also been sought for. Order 2 Rule 2 provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action. Respondent is not entitled to split the cause of action into parts by filing separate suits. We find, as such, that respondent had omitted certain reliefs which were available to it at the time of filing of the first suit and after having relinquished the same, it cannot file a separate suit in view of the provisions of sub-rule 2 of Order 2 Rule 2, CPC. The object of Order 2 Rule 2 is to avoid multiplicity of proceedings and not to vex the parties over and again in a litigative process. The object enunciated in Order 2 Rule 2, CPC is laudable and it has a larger public purpose to achieve by not burdening the court with repeated suits. | 1 | 2,914 | 306 | ### Instruction:
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it does not contemplate unity of distinct and separate cause of action. On the above-mentioned legal principle, let us examine whether the High Court has correctly applied the legal principle in the instant case. 13. We have gone through the plaints and the averments contained in both the suits in extenso and also the reliefs claimed in both the suits. Respondents had availed of various credit facilities from the State Bank of India. It had an export order from M/s Medipharma Company, France who had opened two Letters of Credit. The first Letter of Credit was opened with CDN and second Letter of Credit was opened with BNP. The date of issue of first Letter of Credit by CDN was 16.01.2001 and it was to expire on 10.04.2001. Similarly, second Letter of Credit opened with BNP was issued on 16.01.2001 and was to expire on 30.04.2001. On 20.03.2001, proceeds of the export deal were paid by the bank honouring the bills of exchange against the Letter of Credit opened with CDN and credited the same to the account of the respondent on the understanding that in case the relevant documents were accepted by the opening owner/issuing bank for any reason whatsoever, the respondent was liable to repay to the bank, without demur or demand, the amount of the bills/documents along with overdue interest and other charges. Other clauses were also incorporated so as to safeguard the interest of the bank. On 28.03.2001, the bank honoured the bills of exchange against the LC opened with BNP subject to the various conditions. The amount was credited to the account of the respondent subject to realization of LC. Since the amount of the LC was not received with the issuing bank on 01.05.2001, the amount was debited to the account of the respondent on account of non-receipt of LC from CDN. Similarly, the amount of LC having not received from the issuing bank by 14.06.2001, the amount was debited to the account of the respondent for non-receipt of LC from BNP. 14. The bank sent various letters to the respondent to regularize the accounts. Since the accounts were not regularized, the bank decided not to grant further facility. The respondent then on receipt of the payment from the foreign buyer and having failed to take any steps to realize the payment from the buyer or issuing bank, filed a complaint on 30.09.2001 with the Banking Ombudsman against the bank on account of reversing the entry on non-receipt of payment of LCs. The complaint filed by the respondent was, however, later withdrawn. The bank’s stand is that closure of account was done on 20.03.2002 due to the fault of the respondent on non-regularization of their accounts i.e. after non-receipt of payment of LC, the amount became irregular and remained so continuously. Let us now examine the averments contained in paragraph 37 of the subsequent suit No.288/03/04 of 2003 in the above perspective. Paragraph 37 is extracted hereinbelow for easy reference: “37. That the cause of action to file the present suit accrued in favour of the plaintiff and against the Defendants on all those occasions when the Defendants wrote various letters to the Plaintiff threatening initiate or actually initiating action against the Plaintiff in relation to various credit facilities which were being enjoyed by the Plaintiff. The cause of action to file the present suit accrued further in favour of the Plaintiff and against the Defendants on all those occasions when the Defendants actually initiated action against the Plaintiff in relation to various credit facilities, which were being enjoyed by the plaintiff and thereby did not provide the said facilities to the Plaintiff. The cause of action further accrued when the Defendants wrote letter dated 20.03.2002 to the Plaintiff conveying their decision to unilaterally and illegally rescind and contract between the parties and thereby stopping all credit facilities to the Plaintiff. The cause of action accrued further when on 26.3.2002, the general Manager (Commercial) of the Defendant No.1 did not intervene to stop the arbitrary and illegal action of the concerned officers of the Industrial Finance Branch. The cause of action accrued further when prior to filing of the suit, the Plaintiff through its counsel, issued and served upon the Defendants a legal notice dated 24.12.2002. The cause of action is still continuing and subsisting.” 15. When we go through the above quoted paragraph it is clear that the facts on the basis of which subsequent suit was filed, existed on the date on which the earlier suit was filed. The earlier suit was filed on 15.03.2003 and subsequent suit was filed on 21.05.2003. No fresh cause of action arose in between the first suit and the second suit. The closure of account, as already indicated, was intimated on 20.03.2002 due to the alleged fault of the respondent in not regularizing their accounts i.e. after non-receipt of payment of LC, the account became irregular. When the first suit for recovery of dues was filed i.e. on 15.03.2001 for alleged relief, damages sought for in the subsequent suit could have also been sought for. Order 2 Rule 2 provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action. Respondent is not entitled to split the cause of action into parts by filing separate suits. We find, as such, that respondent had omitted certain reliefs which were available to it at the time of filing of the first suit and after having relinquished the same, it cannot file a separate suit in view of the provisions of sub-rule 2 of Order 2 Rule 2, CPC. The object of Order 2 Rule 2 is to avoid multiplicity of proceedings and not to vex the parties over and again in a litigative process. The object enunciated in Order 2 Rule 2, CPC is laudable and it has a larger public purpose to achieve by not burdening the court with repeated suits. 16.
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15. When we go through the above quoted paragraph it is clear that the facts on the basis of which subsequent suit was filed, existed on the date on which the earlier suit was filed. The earlier suit was filed on 15.03.2003 and subsequent suit was filed on 21.05.2003. No fresh cause of action arose in between the first suit and the second suit. The closure of account, as already indicated, was intimated on 20.03.2002 due to the alleged fault of the respondent in not regularizing their accounts i.e. after non-receipt of payment of LC, the account became irregular. When the first suit for recovery of dues was filed i.e. on 15.03.2001 for alleged relief, damages sought for in the subsequent suit could have also been sought for. Order 2 Rule 2 provides that every suit shall include the whole of the claim which the plaintiff is entitled to make in respect of the same cause of action. Respondent is not entitled to split the cause of action into parts by filing separate suits. We find, as such, that respondent had omitted certain reliefs which were available to it at the time of filing of the first suit and after having relinquished the same, it cannot file a separate suit in view of the provisions of sub-rule 2 of Order 2 Rule 2, CPC. The object of Order 2 Rule 2 is to avoid multiplicity of proceedings and not to vex the parties over and again in a litigative process. The object enunciated in Order 2 Rule 2, CPC is laudable and it has a larger public purpose to achieve by not burdening the court with repeated suits.
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Nalinakhya Bysack Vs. Shyam Sunder Haldar & Others | is for all practical purposes to suspend the operation of Chap.VII of the Presidency Small Cause Courts Act in Calcutta for no one will take proceedings in which no order can be made. The effect of those sections is to confer a new jurisdiction on the Chief Judge of the Calcutta Small Cause Court to entertain and try suits by landlords against tenants for recovery of possession of premises situate within the ordinary original civil jurisdiction of the Calcutta High Court when the monthly rent does not exceed Rs. 500. Thus after Act 17 of 1950 came into force the Calcutta Small Cause Court has ceased to have any power to pass an order for possession under. Chap.VII of the Presidency Small Cause Courts Act and the Small Cause Court of Calcutta can, under that Act, only pass a decree for possession in a suit which is saved by the proviso to sub-s. (1) of S.12 and with regard to which a special jurisdiction is conferred on that Court by S.16 of that Act. That being the position, the word "suit" in none of the sections of Act 17 of 1950 can be said to have been used as including a proceeding under Chap.VII of the Presidency Small Cause Courts Act. Therefore, the reasoning advanced in support of attributing an extended meaning to the word "suit" and then inferentially to the word "decree" in S.18(1) cannot be sustained.9. It is next argued that if the word "decree" is construed strictly it will give rise to startling results in that poor tenants against whom orders for possession had been made under the 1948 Act will be deprived of the benefit of S.18(1) while the wealthy tenants paying rents above Rs. 500 per month will get relief under that section and this will frustrate the intention of the Legislature. This argument proceeds on the assumption that the Legislature intended to give relief to all tenants against whom orders or decrees for possession had been made. The language of S.18(1) clearly shows that the intention of the Legislature was to give relief only to certain tenants in certain circumstances. In the first place, relief is given only with respect to decree for possession made on the specified ground and not with respect to a decree for possession made on any other ground. In the next place, relief is given only when the possession of the premises in respect of which a decree for possession had been made had not been made over by the tenant. Thus tenants against whom a decree for possession had been made on grounds other than the grounds specified in the sub-section and even tenants against whom a decree for possession had been made on the specified ground but who had, voluntarily or otherwise, delivered possession of the premises get no relief under S.18 (1) An order for possession is made by the Presidency Small Cause Court under S.43 on a summary application under S.41 and the order directs the Bailiff of the Court to deliver possession to the applicant. This order for the recovery of possession which under S.37 of the Presidency Small Cause Courts Act is final and conclusive and from which there is no appeal or a new trial under S.38 of that Act does not ordinarily take much time to be obtained or to be carried out and certainly much less than what is taken to obtain a decree for possession in a suit and to execute such decree, because both the decree for possession in a suit and the order for execution thereof are subject to appeal. The Legislature may well have thought that cases where orders for possession had been made under Chap.VII of the Presidency Small Cause Courts Act with respect to premises which were situate within the small area of the ordinary original civil jurisdiction of the Calcutta High court and which, in spite of such orders, were still in the possession of the tenants at the date of the commencement of Act 17 of 1950 would be few in number as compared to the number of cases where decrees for possession had been made with respect to premises which were situate within a very much larger area and which were still in the possession of the Tenants and, therefore, did not think fit to provide for those few cases. It must always be borne in mind, as said by Lord Halsbury in Commr. for Special Purposes of Income tax v. Pemsel, (1891) A. C. 531 (G), that it is not competent to any court to proceed upon the assumption that the Legislature has made a mistake, the court must proceed on the footing that the Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature the Court cannot, as pointed out in Crawford v. Spooner, 6 Moo. P. C. 1 (H), aid the Legislatures defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is casus omissus, it is, as said by Lord Russel of Killowen in Hansraj Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd., AIR 1933 P. C. 63 (1), for others than the Courts to remedy the defect. In our view it is not right to give to the word "decree" a meaning other than its ordinary accepted meaning and we are bound to say, in spite of our profound respect for the opinions of the learned Judges who decided them, that the several cases relied on by the respondent were not correctly decided.10. Reference was made, in course of argument, to S.6 of the West Bengal Act 62 of 1950. That Section refers to orders or decrees made between the commencement of Act 17 of 1950 and Act 62 of 1950, i.e., between 30-3-1950 and 30-11-1950 and cannot have any application to the order for possession made in this case on 27-2-1950. | 1[ds]9. It is next argued that if the word "decree" is construed strictly it will give rise to startling results in that poor tenants against whom orders for possession had been made under the 1948 Act will be deprived of the benefit of S.18(1) while the wealthy tenants paying rents above Rs. 500 per month will get relief under that section and this will frustrate the intention of the Legislature. This argument proceeds on the assumption that the Legislature intended to give relief to all tenants against whom orders or decrees for possession had been made. The language of S.18(1) clearly shows that the intention of the Legislature was to give relief only to certain tenants in certain circumstances. In the first place, relief is given only with respect to decree for possession made on the specified ground and not with respect to a decree for possession made on any other ground. In the next place, relief is given only when the possession of the premises in respect of which a decree for possession had been made had not been made over by the tenant. Thus tenants against whom a decree for possession had been made on grounds other than the grounds specified in the sub-section and even tenants against whom a decree for possession had been made on the specified ground but who had, voluntarily or otherwise, delivered possession of the premises get no relief under S.18 (1) An order for possession is made by the Presidency Small Cause Court under S.43 on a summary application under S.41 and the order directs the Bailiff of the Court to deliver possession to the applicant. This order for the recovery of possession which under S.37 of the Presidency Small Cause Courts Act is final and conclusive and from which there is no appeal or a new trial under S.38 of that Act does not ordinarily take much time to be obtained or to be carried out and certainly much less than what is taken to obtain a decree for possession in a suit and to execute such decree, because both the decree for possession in a suit and the order for execution thereof are subject to appeal. The Legislature may well have thought that cases where orders for possession had been made under Chap.VII of the Presidency Small Cause Courts Act with respect to premises which were situate within the small area of the ordinary original civil jurisdiction of the Calcutta High court and which, in spite of such orders, were still in the possession of the tenants at the date of the commencement of Act 17 of 1950 would be few in number as compared to the number of cases where decrees for possession had been made with respect to premises which were situate within a very much larger area and which were still in the possession of the Tenants and, therefore, did not think fit to provide for those few cases. | 1 | 4,267 | 525 | ### Instruction:
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is for all practical purposes to suspend the operation of Chap.VII of the Presidency Small Cause Courts Act in Calcutta for no one will take proceedings in which no order can be made. The effect of those sections is to confer a new jurisdiction on the Chief Judge of the Calcutta Small Cause Court to entertain and try suits by landlords against tenants for recovery of possession of premises situate within the ordinary original civil jurisdiction of the Calcutta High Court when the monthly rent does not exceed Rs. 500. Thus after Act 17 of 1950 came into force the Calcutta Small Cause Court has ceased to have any power to pass an order for possession under. Chap.VII of the Presidency Small Cause Courts Act and the Small Cause Court of Calcutta can, under that Act, only pass a decree for possession in a suit which is saved by the proviso to sub-s. (1) of S.12 and with regard to which a special jurisdiction is conferred on that Court by S.16 of that Act. That being the position, the word "suit" in none of the sections of Act 17 of 1950 can be said to have been used as including a proceeding under Chap.VII of the Presidency Small Cause Courts Act. Therefore, the reasoning advanced in support of attributing an extended meaning to the word "suit" and then inferentially to the word "decree" in S.18(1) cannot be sustained.9. It is next argued that if the word "decree" is construed strictly it will give rise to startling results in that poor tenants against whom orders for possession had been made under the 1948 Act will be deprived of the benefit of S.18(1) while the wealthy tenants paying rents above Rs. 500 per month will get relief under that section and this will frustrate the intention of the Legislature. This argument proceeds on the assumption that the Legislature intended to give relief to all tenants against whom orders or decrees for possession had been made. The language of S.18(1) clearly shows that the intention of the Legislature was to give relief only to certain tenants in certain circumstances. In the first place, relief is given only with respect to decree for possession made on the specified ground and not with respect to a decree for possession made on any other ground. In the next place, relief is given only when the possession of the premises in respect of which a decree for possession had been made had not been made over by the tenant. Thus tenants against whom a decree for possession had been made on grounds other than the grounds specified in the sub-section and even tenants against whom a decree for possession had been made on the specified ground but who had, voluntarily or otherwise, delivered possession of the premises get no relief under S.18 (1) An order for possession is made by the Presidency Small Cause Court under S.43 on a summary application under S.41 and the order directs the Bailiff of the Court to deliver possession to the applicant. This order for the recovery of possession which under S.37 of the Presidency Small Cause Courts Act is final and conclusive and from which there is no appeal or a new trial under S.38 of that Act does not ordinarily take much time to be obtained or to be carried out and certainly much less than what is taken to obtain a decree for possession in a suit and to execute such decree, because both the decree for possession in a suit and the order for execution thereof are subject to appeal. The Legislature may well have thought that cases where orders for possession had been made under Chap.VII of the Presidency Small Cause Courts Act with respect to premises which were situate within the small area of the ordinary original civil jurisdiction of the Calcutta High court and which, in spite of such orders, were still in the possession of the tenants at the date of the commencement of Act 17 of 1950 would be few in number as compared to the number of cases where decrees for possession had been made with respect to premises which were situate within a very much larger area and which were still in the possession of the Tenants and, therefore, did not think fit to provide for those few cases. It must always be borne in mind, as said by Lord Halsbury in Commr. for Special Purposes of Income tax v. Pemsel, (1891) A. C. 531 (G), that it is not competent to any court to proceed upon the assumption that the Legislature has made a mistake, the court must proceed on the footing that the Legislature intended what it has said. Even if there is some defect in the phraseology used by the Legislature the Court cannot, as pointed out in Crawford v. Spooner, 6 Moo. P. C. 1 (H), aid the Legislatures defective phrasing of an Act or add and amend or, by construction, make up deficiencies which are left in the Act. Even where there is casus omissus, it is, as said by Lord Russel of Killowen in Hansraj Gupta v. Dehra Dun Mussoorie Electric Tramway Co. Ltd., AIR 1933 P. C. 63 (1), for others than the Courts to remedy the defect. In our view it is not right to give to the word "decree" a meaning other than its ordinary accepted meaning and we are bound to say, in spite of our profound respect for the opinions of the learned Judges who decided them, that the several cases relied on by the respondent were not correctly decided.10. Reference was made, in course of argument, to S.6 of the West Bengal Act 62 of 1950. That Section refers to orders or decrees made between the commencement of Act 17 of 1950 and Act 62 of 1950, i.e., between 30-3-1950 and 30-11-1950 and cannot have any application to the order for possession made in this case on 27-2-1950.
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9. It is next argued that if the word "decree" is construed strictly it will give rise to startling results in that poor tenants against whom orders for possession had been made under the 1948 Act will be deprived of the benefit of S.18(1) while the wealthy tenants paying rents above Rs. 500 per month will get relief under that section and this will frustrate the intention of the Legislature. This argument proceeds on the assumption that the Legislature intended to give relief to all tenants against whom orders or decrees for possession had been made. The language of S.18(1) clearly shows that the intention of the Legislature was to give relief only to certain tenants in certain circumstances. In the first place, relief is given only with respect to decree for possession made on the specified ground and not with respect to a decree for possession made on any other ground. In the next place, relief is given only when the possession of the premises in respect of which a decree for possession had been made had not been made over by the tenant. Thus tenants against whom a decree for possession had been made on grounds other than the grounds specified in the sub-section and even tenants against whom a decree for possession had been made on the specified ground but who had, voluntarily or otherwise, delivered possession of the premises get no relief under S.18 (1) An order for possession is made by the Presidency Small Cause Court under S.43 on a summary application under S.41 and the order directs the Bailiff of the Court to deliver possession to the applicant. This order for the recovery of possession which under S.37 of the Presidency Small Cause Courts Act is final and conclusive and from which there is no appeal or a new trial under S.38 of that Act does not ordinarily take much time to be obtained or to be carried out and certainly much less than what is taken to obtain a decree for possession in a suit and to execute such decree, because both the decree for possession in a suit and the order for execution thereof are subject to appeal. The Legislature may well have thought that cases where orders for possession had been made under Chap.VII of the Presidency Small Cause Courts Act with respect to premises which were situate within the small area of the ordinary original civil jurisdiction of the Calcutta High court and which, in spite of such orders, were still in the possession of the tenants at the date of the commencement of Act 17 of 1950 would be few in number as compared to the number of cases where decrees for possession had been made with respect to premises which were situate within a very much larger area and which were still in the possession of the Tenants and, therefore, did not think fit to provide for those few cases.
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Nath Bros Exim Intnl. Ltd Vs. Best Roadways Ltd | opposite party could not have informed Jeena & Co. on 14.3.94 and Jeena & Co. could not have issued impugned letter dt. 14.3.94 on that date itself as this day was a holiday under Negotiable Instruments Act on account of Id-ul-Fitr when undoubtedly Govt. Offices and Banks were closed in Bombay. To this effect a telex confirmation dt. 29.4.95 issued by Indian Overseas Bank R.O. (Metro) Bombay to Indian Overseas Bank, Parliament Street, New Delhi (Bankers of the complainant) is enclosed herewith as Annexure L. Furthermore, the office of Jeena & Co. itself was closed on 14.3.94 as certified by them in the fax message dt. 22.4.95 which is enclosed herewith as Annexure M. Furthermore, the opposite party had not taken any plea based on the letter dt. 14.3.94 in their first official communication being letter dt. 19.3.94 (Annexure 5 to W.S.). This proves that letter dated 14.3.94 is after-thought.10(2) In the above connection it is further submitted that the veracity of claim of opposite party that it changed the destination of goods on instruction of Jeena & Co. is highly dubious for two more reasons.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx" (Emphasis supplied) 45. It was further stated in paragraph 10(4) of the rejoinder as under : "It is submitted that above facts clearly show that the story of giving information of arrival of goods at Bombay to Ms. Jeena & Co. and receiving instructions from them to unload goods at Bhiwandi on 14.3.1994 is totally false and the opposite party stored the goods at Bhiwandi of their own volition. The implantation of letter dated 14.3.1994 is, therefore, only a crude attempt to justify their unauthorised action of storing goods at Bhiwandi." 46. In view of the above pleadings, a serious dispute had arisen between the parties as to the genuineness of the letter dated 14th March, 1994, said to have been written by Messrs Jeena & Co. to the respondent to unload the goods at Bhiwandi instead of delivering the consignment at Bombay.47. The National Commission did not advert itself to these questions and disposed of the whole matter observing, inter alia, as under : "The carrier has, however, pointed out that they had taken the consignment as per the instructions of the petitioner, and informed the consignee that the goods were ready for delivery at Bombay, but the consignee directed them to unload the said consignment of 77 packages at Bhiwandi. The diversion of the consignment to Bhiwandi was thus made at the direction of the consignee himself. In this regard the Opposite Party has produced a letter from Ms. Jeena & Co., dated 14th March, 1994 which reads as follows :"This has a reference to the information given by you regarding arrival of 77 packages at Mulund Check Post of Ms. Nath Brothers, Exim International Ltd., New Delhi, booked by you under your G.C. No. 42330 dt. 11.3.94 Ex. Delhi to Bombay. In this connection we hereby advise you to unload the said consignment of 77 packages of the above party at Bhiwandi as the shipment of the same will take place at CFS, Kalamboli (Nhava Sheva Port)." "The argument of the Opposite Party, the carriers, is that on these specific instructions from the consignee and freight forwarder Ms. Jeena & Co., Bombay, the said consignment was unloaded and stored at Bhiwandi. That was done, according to them, since the consignment was to be shipped from Nhava Sheva Port and not from Bombay Port and, therefore, the consignee diverted the consignment from Mulund Check Post to Bhiwandi, which was nearer to Nhava Sheva Port, and at the same time also avoided the octroi duty which had to be paid, had the delivery been taken at Mulund Check Post when the consignment reached there. The goods were stored at Bhiwandi in godown Nos. 5 & 6, Wadi Compound, Anjur Village, Anjurphate, outside the octroi limits of Greater Bombay along with other export consignment, the total value of which, according to the Opposite Party, was more than Rs. 2 crores and all of which were to be shipped from Nhava Sheva port across the creek of the Greater Bombay. All those goods were destroyed around noon on 16.3.1994 because of a huge fire and explosion that occurred in the adjoining godown No. 7 belonging to Shri Rati Bhai were drums containing hazardous chemicals were stored. The fire spread to the Opposite Partys godown Nos. 5 and 6 as well as other adjoining godowns. In spite of all efforts by the fire fighting engines, the fire could not be contained in time. The accidental fire was reported to the Police Station, Bhiwandi, and an FIR was also lodged on the 16th March, 1994 itself. The Police prepared a Panchanama in front of independent witnesses and the fire brigades of Bhiwandi and Nizampur Nagar Parishad confirmed this accidental fire. This fire was also reported in the newspapers on 16th and 17th March, 1994.It is not the case of the petitioner that the carrier did not take adequate precautions or steps to save the goods from the loss by the fire. On the other hand, it has been successfully proved by the carrier that the consignment of the petitioner was diverted from Mulund Check Post to Bhiwandi on the specific instructions of the consignee and further that the loss was caused by fire which was beyond their control. It has been mentioned by them that they took due care, within their capacity and how they have lodged a claim on the owner of the adjoining godown from where the fire started." 48. The above will show that the National Commission acted upon the letter dated 14th March, 1994 of Ms. Jeena & Co. without deciding the question whether it was genuine and was at all issued by Ms.. Jeena & Co. as the appellant had contended that the letter was forged or was procured collusively. Since the above aspects have not been considered and decided by the Commission, we cannot uphold the judgment of the National Commission. | 1[ds]25. We have already reproduced the provisions of Sections 6, 8 and 9 above. Section 6 enables the common carrier to limit has liability by a special contract. But the special contract will not absolve the carrier if the damage or loss to the goods, entrusted to him, has been caused by his own negligence or criminal act or that of his agents or servants. In that situation, the carrier would be liable for the damage to or loss oror goods. In this situation, if a suit is filed for recovery of damages, the burden of proof will not be on the owner or the plaintiff to show that the loss or damage was caused owing to the negligence or criminal act of the carrier as provided by Section 9. The carrier can escape his liability only if it is established that the loss or damage was due to an act of God or enemies of the State (or the enemies of the King, a phrase used by the Privy Council). The Calcutta decision in The British & Foreign Marine Insurance Co. v. The Indian General Navigation and Railway Co. Ltd. (supra), the Assam decision in River Steam Navigation Co. Ltd. and another v. Syam Sunder Tea Co. Ltd. (supra), the Rajasthan decision in Vidya Ratan v. Kota Transport Co. Ltd. (supra), the Kerala decision in Kerala Transport Co. v. Kunnath Textiles (supra), which have already been referred to above, have considered the effect of special contract within the meaning of Sections 6 and 8 of the Carriers Act, 1865 and, in our opinion, they lay down the correct law.26. In the Madras decision in P.K. Kalasami Nadar v. K. Ponnuswami Mudaliar & others (supra), it was held that an act of God will be an extraordinary occurrence due to natural causes, which is not the result of any human intervention, but it was held that an accidental fire, though it might not have resulted from any act or omission of the common carrier, cannot be said to be an act of God. Similarly, in Kerala Transport Co. v. Kunnath Textiles (supra), it was held that the absolute liability of the carrier was subject to two exceptions. One of them is a special contract that the carrier may choose to enter into with the customer and the other is the act of God. It was further held that an act of God does not take in any and every inevitable accident and that only those acts which can be traced to natural causes as opposed to human agency would be said to be an act of God. In Associated Traders & Engineers Pvt. Ltd. v. Delhi Cloth & General Mills Ltd. & others, ILR Delhi 1974(1) 790, a fire which broke out in a bonded warehouse where the goods were kept was held not to be an act of God and, therefore, the carrier was held liable. This Delhi decision has been relied upon by the learned counsel for the appellant on another question also to which we shall presently come, to show that the agreement by which the liability of the carrier is sought to be limited must be signed by the owner of the goods, entrusted to the carrier for carriage.27. From the above discussion, it would be seen that the liability of a carrier to whom the goods are entrusted for carriage is that of an insurer and is absolute in terms, in the sense that the carrier has to deliver the goods safely, undamaged and without loss at the destination, indicated by the consignor. So long as the goods are in the custody of the carrier, it is the duty of the carrier to take due care as he would have taken of his own goods and he would be liable if any loss or damage was caused to the goods on account of his own negligence or criminal act or that of his agent did servants.In view of the above, there did arise a controversy between the parties whether there was any special agreement between them which would have the effect of restricting the liability of the respondent in carrying the goods in question to Bombay for delivery to Messrs Jeena & Co. This question has not been answered in clear terms by the National Commission and a positive finding, whether or not there existed a special contract between the parties within the meaning of Section 6 of the Act, has not been recorded. The Commission, after considering various provisions of the Act came to the conclusion that even if the goods were carried at "Owners Risk", the carrier would not be fully absolved of his liability to pay compensation if the loss was occasioned on account of his negligence or the negligence of his servants and agents. The Commission, to this extent, is right and, therefore, a positive finding on the existence of a special contract is not insisted upon but what is now questioned is the finding of the Commission on the question of negligence.38. The Commission held that since the goods were diverted to Bhiwandi by the consignee, Messrs Jeena & Co., to whom the goods were to be delivered and they were destroyed by the fire which initially broke out in the adjacent godown the subsequently spread to their own godown, the respondent would not be liable as he had taken all possible care which was expected of him as carrier. This, we feel, is not the correct approach.39. There was a serious dispute between the parties not only on the existence of a special contract within the meaning of Section 6 of the Act, but there also arose dispute with regard to the diversion or goods to be unloaded at Bhiwandi instead of being delivered to Messrs Jeena & Co. at Bombay. This question, namely, diversion of goods, has been decided by the Commission without scrutinising the relevant pleadings of the parties.In view of the above pleadings, a serious dispute had arisen between the parties as to the genuineness of the letter dated 14th March, 1994, said to have been written by Messrs Jeena & Co. to the respondent to unload the goods at Bhiwandi instead of delivering the consignment at Bombay.47. The National Commission did not advert itself to these questions and disposed of the whole matter observing, inter alia, as undercarrier has, however, pointed out that they had taken the consignment as per the instructions of the petitioner, and informed the consignee that the goods were ready for delivery at Bombay, but the consignee directed them to unload the said consignment of 77 packages at Bhiwandi. The diversion of the consignment to Bhiwandi was thus made at the direction of the consignee himself. In this regard the Opposite Party has produced a letter from Ms. Jeena & Co., dated 14th March, 1994 which reads as follows :"This has a reference to the information given by you regarding arrival of 77 packages at Mulund Check Post of Ms. Nath Brothers, Exim International Ltd., New Delhi, booked by you under your G.C. No. 42330 dt. 11.3.94 Ex. Delhi to Bombay. In this connection we hereby advise you to unload the said consignment of 77 packages of the above party at Bhiwandi as the shipment of the same will take place at CFS, Kalamboli (Nhava Shevaargument of the Opposite Party, the carriers, is that on these specific instructions from the consignee and freight forwarder Ms. Jeena & Co., Bombay, the said consignment was unloaded and stored at Bhiwandi. That was done, according to them, since the consignment was to be shipped from Nhava Sheva Port and not from Bombay Port and, therefore, the consignee diverted the consignment from Mulund Check Post to Bhiwandi, which was nearer to Nhava Sheva Port, and at the same time also avoided the octroi duty which had to be paid, had the delivery been taken at Mulund Check Post when the consignment reached there. The goods were stored at Bhiwandi in godown Nos. 5 & 6, Wadi Compound, Anjur Village, Anjurphate, outside the octroi limits of Greater Bombay along with other export consignment, the total value of which, according to the Opposite Party, was more than Rs. 2 crores and all of which were to be shipped from Nhava Sheva port across the creek of the Greater Bombay. All those goods were destroyed around noon on 16.3.1994 because of a huge fire and explosion that occurred in the adjoining godown No. 7 belonging to Shri Rati Bhai were drums containing hazardous chemicals were stored. The fire spread to the Opposite Partys godown Nos. 5 and 6 as well as other adjoining godowns. In spite of all efforts by the fire fighting engines, the fire could not be contained in time. The accidental fire was reported to the Police Station, Bhiwandi, and an FIR was also lodged on the 16th March, 1994 itself. The Police prepared a Panchanama in front of independent witnesses and the fire brigades of Bhiwandi and Nizampur Nagar Parishad confirmed this accidental fire. This fire was also reported in the newspapers on 16th and 17th March, 1994.It is not the case of the petitioner that the carrier did not take adequate precautions or steps to save the goods from the loss by the fire. On the other hand, it has been successfully proved by the carrier that the consignment of the petitioner was diverted from Mulund Check Post to Bhiwandi on the specific instructions of the consignee and further that the loss was caused by fire which was beyond their control. It has been mentioned by them that they took due care, within their capacity and how they have lodged a claim on the owner of the adjoining godown from where the fire started.The above will show that the National Commission acted upon the letter dated 14th March, 1994 of Ms. Jeena & Co. without deciding the question whether it was genuine and was at all issued by Ms.. Jeena & Co. as the appellant had contended that the letter was forged or was procured collusively. Since the above aspects have not been considered and decided by the Commission, we cannot uphold the judgment of the National Commission. The appeal is consequently allowed, the impugned judgment dated 2.9.1996 passed by the National Commission is set aside and the case is remanded to the Commission for disposal afresh in the light of the observations made above and in accordance with law. | 1 | 10,743 | 1,919 | ### 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:
opposite party could not have informed Jeena & Co. on 14.3.94 and Jeena & Co. could not have issued impugned letter dt. 14.3.94 on that date itself as this day was a holiday under Negotiable Instruments Act on account of Id-ul-Fitr when undoubtedly Govt. Offices and Banks were closed in Bombay. To this effect a telex confirmation dt. 29.4.95 issued by Indian Overseas Bank R.O. (Metro) Bombay to Indian Overseas Bank, Parliament Street, New Delhi (Bankers of the complainant) is enclosed herewith as Annexure L. Furthermore, the office of Jeena & Co. itself was closed on 14.3.94 as certified by them in the fax message dt. 22.4.95 which is enclosed herewith as Annexure M. Furthermore, the opposite party had not taken any plea based on the letter dt. 14.3.94 in their first official communication being letter dt. 19.3.94 (Annexure 5 to W.S.). This proves that letter dated 14.3.94 is after-thought.10(2) In the above connection it is further submitted that the veracity of claim of opposite party that it changed the destination of goods on instruction of Jeena & Co. is highly dubious for two more reasons.xxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxxx" (Emphasis supplied) 45. It was further stated in paragraph 10(4) of the rejoinder as under : "It is submitted that above facts clearly show that the story of giving information of arrival of goods at Bombay to Ms. Jeena & Co. and receiving instructions from them to unload goods at Bhiwandi on 14.3.1994 is totally false and the opposite party stored the goods at Bhiwandi of their own volition. The implantation of letter dated 14.3.1994 is, therefore, only a crude attempt to justify their unauthorised action of storing goods at Bhiwandi." 46. In view of the above pleadings, a serious dispute had arisen between the parties as to the genuineness of the letter dated 14th March, 1994, said to have been written by Messrs Jeena & Co. to the respondent to unload the goods at Bhiwandi instead of delivering the consignment at Bombay.47. The National Commission did not advert itself to these questions and disposed of the whole matter observing, inter alia, as under : "The carrier has, however, pointed out that they had taken the consignment as per the instructions of the petitioner, and informed the consignee that the goods were ready for delivery at Bombay, but the consignee directed them to unload the said consignment of 77 packages at Bhiwandi. The diversion of the consignment to Bhiwandi was thus made at the direction of the consignee himself. In this regard the Opposite Party has produced a letter from Ms. Jeena & Co., dated 14th March, 1994 which reads as follows :"This has a reference to the information given by you regarding arrival of 77 packages at Mulund Check Post of Ms. Nath Brothers, Exim International Ltd., New Delhi, booked by you under your G.C. No. 42330 dt. 11.3.94 Ex. Delhi to Bombay. In this connection we hereby advise you to unload the said consignment of 77 packages of the above party at Bhiwandi as the shipment of the same will take place at CFS, Kalamboli (Nhava Sheva Port)." "The argument of the Opposite Party, the carriers, is that on these specific instructions from the consignee and freight forwarder Ms. Jeena & Co., Bombay, the said consignment was unloaded and stored at Bhiwandi. That was done, according to them, since the consignment was to be shipped from Nhava Sheva Port and not from Bombay Port and, therefore, the consignee diverted the consignment from Mulund Check Post to Bhiwandi, which was nearer to Nhava Sheva Port, and at the same time also avoided the octroi duty which had to be paid, had the delivery been taken at Mulund Check Post when the consignment reached there. The goods were stored at Bhiwandi in godown Nos. 5 & 6, Wadi Compound, Anjur Village, Anjurphate, outside the octroi limits of Greater Bombay along with other export consignment, the total value of which, according to the Opposite Party, was more than Rs. 2 crores and all of which were to be shipped from Nhava Sheva port across the creek of the Greater Bombay. All those goods were destroyed around noon on 16.3.1994 because of a huge fire and explosion that occurred in the adjoining godown No. 7 belonging to Shri Rati Bhai were drums containing hazardous chemicals were stored. The fire spread to the Opposite Partys godown Nos. 5 and 6 as well as other adjoining godowns. In spite of all efforts by the fire fighting engines, the fire could not be contained in time. The accidental fire was reported to the Police Station, Bhiwandi, and an FIR was also lodged on the 16th March, 1994 itself. The Police prepared a Panchanama in front of independent witnesses and the fire brigades of Bhiwandi and Nizampur Nagar Parishad confirmed this accidental fire. This fire was also reported in the newspapers on 16th and 17th March, 1994.It is not the case of the petitioner that the carrier did not take adequate precautions or steps to save the goods from the loss by the fire. On the other hand, it has been successfully proved by the carrier that the consignment of the petitioner was diverted from Mulund Check Post to Bhiwandi on the specific instructions of the consignee and further that the loss was caused by fire which was beyond their control. It has been mentioned by them that they took due care, within their capacity and how they have lodged a claim on the owner of the adjoining godown from where the fire started." 48. The above will show that the National Commission acted upon the letter dated 14th March, 1994 of Ms. Jeena & Co. without deciding the question whether it was genuine and was at all issued by Ms.. Jeena & Co. as the appellant had contended that the letter was forged or was procured collusively. Since the above aspects have not been considered and decided by the Commission, we cannot uphold the judgment of the National Commission.
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been recorded. The Commission, after considering various provisions of the Act came to the conclusion that even if the goods were carried at "Owners Risk", the carrier would not be fully absolved of his liability to pay compensation if the loss was occasioned on account of his negligence or the negligence of his servants and agents. The Commission, to this extent, is right and, therefore, a positive finding on the existence of a special contract is not insisted upon but what is now questioned is the finding of the Commission on the question of negligence.38. The Commission held that since the goods were diverted to Bhiwandi by the consignee, Messrs Jeena & Co., to whom the goods were to be delivered and they were destroyed by the fire which initially broke out in the adjacent godown the subsequently spread to their own godown, the respondent would not be liable as he had taken all possible care which was expected of him as carrier. This, we feel, is not the correct approach.39. There was a serious dispute between the parties not only on the existence of a special contract within the meaning of Section 6 of the Act, but there also arose dispute with regard to the diversion or goods to be unloaded at Bhiwandi instead of being delivered to Messrs Jeena & Co. at Bombay. This question, namely, diversion of goods, has been decided by the Commission without scrutinising the relevant pleadings of the parties.In view of the above pleadings, a serious dispute had arisen between the parties as to the genuineness of the letter dated 14th March, 1994, said to have been written by Messrs Jeena & Co. to the respondent to unload the goods at Bhiwandi instead of delivering the consignment at Bombay.47. The National Commission did not advert itself to these questions and disposed of the whole matter observing, inter alia, as undercarrier has, however, pointed out that they had taken the consignment as per the instructions of the petitioner, and informed the consignee that the goods were ready for delivery at Bombay, but the consignee directed them to unload the said consignment of 77 packages at Bhiwandi. The diversion of the consignment to Bhiwandi was thus made at the direction of the consignee himself. In this regard the Opposite Party has produced a letter from Ms. Jeena & Co., dated 14th March, 1994 which reads as follows :"This has a reference to the information given by you regarding arrival of 77 packages at Mulund Check Post of Ms. Nath Brothers, Exim International Ltd., New Delhi, booked by you under your G.C. No. 42330 dt. 11.3.94 Ex. Delhi to Bombay. In this connection we hereby advise you to unload the said consignment of 77 packages of the above party at Bhiwandi as the shipment of the same will take place at CFS, Kalamboli (Nhava Shevaargument of the Opposite Party, the carriers, is that on these specific instructions from the consignee and freight forwarder Ms. Jeena & Co., Bombay, the said consignment was unloaded and stored at Bhiwandi. That was done, according to them, since the consignment was to be shipped from Nhava Sheva Port and not from Bombay Port and, therefore, the consignee diverted the consignment from Mulund Check Post to Bhiwandi, which was nearer to Nhava Sheva Port, and at the same time also avoided the octroi duty which had to be paid, had the delivery been taken at Mulund Check Post when the consignment reached there. The goods were stored at Bhiwandi in godown Nos. 5 & 6, Wadi Compound, Anjur Village, Anjurphate, outside the octroi limits of Greater Bombay along with other export consignment, the total value of which, according to the Opposite Party, was more than Rs. 2 crores and all of which were to be shipped from Nhava Sheva port across the creek of the Greater Bombay. All those goods were destroyed around noon on 16.3.1994 because of a huge fire and explosion that occurred in the adjoining godown No. 7 belonging to Shri Rati Bhai were drums containing hazardous chemicals were stored. The fire spread to the Opposite Partys godown Nos. 5 and 6 as well as other adjoining godowns. In spite of all efforts by the fire fighting engines, the fire could not be contained in time. The accidental fire was reported to the Police Station, Bhiwandi, and an FIR was also lodged on the 16th March, 1994 itself. The Police prepared a Panchanama in front of independent witnesses and the fire brigades of Bhiwandi and Nizampur Nagar Parishad confirmed this accidental fire. This fire was also reported in the newspapers on 16th and 17th March, 1994.It is not the case of the petitioner that the carrier did not take adequate precautions or steps to save the goods from the loss by the fire. On the other hand, it has been successfully proved by the carrier that the consignment of the petitioner was diverted from Mulund Check Post to Bhiwandi on the specific instructions of the consignee and further that the loss was caused by fire which was beyond their control. It has been mentioned by them that they took due care, within their capacity and how they have lodged a claim on the owner of the adjoining godown from where the fire started.The above will show that the National Commission acted upon the letter dated 14th March, 1994 of Ms. Jeena & Co. without deciding the question whether it was genuine and was at all issued by Ms.. Jeena & Co. as the appellant had contended that the letter was forged or was procured collusively. Since the above aspects have not been considered and decided by the Commission, we cannot uphold the judgment of the National Commission. The appeal is consequently allowed, the impugned judgment dated 2.9.1996 passed by the National Commission is set aside and the case is remanded to the Commission for disposal afresh in the light of the observations made above and in accordance with law.
|
M/s. Peare Lal Hari Singh Vs. State of Punjab | which was particularly relied on provides :"All stores and materials brought to the Site shall become and remain the property of Government and shall not be removed off the Site without the prior written approval of the G. E. But whenever the works are finally completed, the contractor shall at his own expense forthwith remove from the Site all surplus stores and materials originally supplied by him and upon such removal, the same shall revest in and become the property of the Contractor."It is argued that the true effect of this provision vesting the materials in the Government is that those materials must be taken to have been sold to it. That this is not the true meaning of the Rule will be clear when regard is had to other provisions in the Rules. Thus, the materials which are used in the construction must be approved by the authorities as of the right quality, and they could be condemned even alter the construction is completed if they are not according to contract or of inferior quality, in which case the contractor has to remove them and rebuild with proper materials. Terms such as these and those in Rule 33 quoted above are usually inserted in building contracts with the object of ensuring that materials of the right sort are used in the construction and not with the intention of purchasing them. If R. 33 is to be construed as operating by way of sale of materials of the Government when they are brought on the site, it must follow that the surplus materials remaining after the completion of the work must be held to have been re-sold by the Government to the contractor, and that is not contended for.6. In Tripp v. Armitage (1839) 4 M and W 687 : 150 ER 1597 at p. 1603 (B), a builder who had been engaged to construct a hotel became insolvent, and dispute arose between the assignees in bankruptcy and the proprietors of the hotel as to the title to certain wooden sash-frames which had been delivered by the insolvent on the premises of the hotel and had been approved by the clerk and returned to the insolvent for the purpose of being affixed. The contention on behalf of the proprietors was that the goods having been approved by their surveyor, they must be held to have been appropriated to the contract and the property therein passed to them. In negativing this contention, Parke, B. observed :"It is said that the approbation of the surveyor is sufficient to constitute an acceptance by the defendants; but that approbation is not given eo animo at all; it is only to ascertain that they are such materials as are suitable for the purpose; and notwithstanding that approval, it is only when they have been put up, and fixed to the house, in performance of the larger contract, that they are to be paid for."In Reid v. Macbeth and Gray 1904 AC 223 (C) the facts were similar. The dispute related to certain plates which had been prepared by contractors to be fitted in a ship. These plates had been passed by the surveyor and were marked with the number of the vessel and with marks showing the position which each plate was to occupy in the vessel. The ship owners laid claim to these plates on the ground that by reason of the approval by their surveyor and by the markings the property therein must be held to have passed to them, and that accordingly the assignees in bankruptcy of the contractors could not claim them. That contention was negatived by the House of Lords, who held that the facts relied on did not establish a contract of sale of the materials apart from the contract to construct the ship, and that the title to the materials did not as such pass to the ship-owners. The position is the same in the present case.Rule 33 has not the effect of converting what is a lump sum contract for construction of buildings into a contract for the sale of materials used therein. It must therefore be held following the decision in State of Madras v. Gannon Dunkerley and Co. (A) (supra) that there has been no sale of the materials used by the petitioners in their constructions, and that no tax could be levied thereon.7. Counsel for the petitioners raised two other contentions, but they are unsubstantial and may be shortly disposed of. One was that in the definition of "turnover" in S. 2 (j), cl. (ii) which is what is applicable to the present case, there is no reference to sale of goods, and that, accordingly, even if Entry 48 in List II is to be interpreted in a wide sense, the provision as actually enacted does not, in fact, tax the supply of materials in works contracts, treating it as a sale. But the charging section is S. 4 (1), which makes it clear that the tax is on the gross turnover in respect of sales effected after the coming into force of the Act, and the obvious intention is to include the supply of materials in works contracts within the category of taxable turnover.8. It was next contended that the definition of "dealer" in S. 2 (d) required that the person should be engaged in the business of selling or supplying goods, that the petitioners who were building contractors were not engaged in the business of selling or supplying goods but of constructing buildings, and that therefore they were not dealers within that definition, and that as under S. 4 the tax could be imposed only on a dealer, the petitioners were not liable to be taxed. But if the supply of materials in construction works can be regarded as a sale, then clearly building contractors are engaged in the sale of materials, and they would be within the definition of "dealers" under the Act. There is no substance in this contention either. | 1[ds]The evidence placed before us leaves us in no doubt as to the true character of the contract. The tenders which were called for and received were for executing works for a lump sum, and in his acceptance of the tender of the petitioners dated 15th December 1956, the Deputy Chief Engineer stated :"The above tender was accepted by me on behalf of the President of India for a lump sum of Rupees 9,74,961."How this amount is made up is given in Annexure E to the reply statement. It will be seen therefrom that the petitioners were to construct nine blocks, and the amounts are worked out treating each of the blocks as one unit, and the figures are totalled up. It is impossible on this evidence to hold that there was any agreement for sale of the materials as such by the petitioners to theposition is the same in the present case.Rule 33 has not the effect of converting what is a lump sum contract for construction of buildings into a contract for the sale of materials used therein. It must therefore be held following the decision in State of Madras v. Gannon Dunkerley and Co. (A) (supra) that there has been no sale of the materials used by the petitioners in their constructions, and that no tax could be leviedthe charging section is S. 4 (1), which makes it clear that the tax is on the gross turnover in respect of sales effected after the coming into force of the Act, and the obvious intention is to include the supply of materials in works contracts within the category of taxableif the supply of materials in construction works can be regarded as a sale, then clearly building contractors are engaged in the sale of materials, and they would be within the definition of "dealers" under the Act. There is no substance in this contention either.Counsel for the petitioners raised two other contentions, but they are unsubstantial and may be shortly disposed of.In Tripp v. Armitage (1839) 4 M and W 687 : 150 ER 1597 at p. 1603 (B), a builder who had been engaged to construct a hotel became insolvent, and dispute arose between the assignees in bankruptcy and the proprietors of the hotel as to the title to certain wooden sash-frames which had been delivered by the insolvent on the premises of the hotel and had been approved by the clerk and returned to the insolvent for the purpose of being affixed. The contention on behalf of the proprietors was that the goods having been approved by their surveyor, they must be held to have been appropriated to the contract and the property therein passed to them. In negativing this contention, Parke, B. observed :"It is said that the approbation of the surveyor is sufficient to constitute an acceptance by the defendants; but that approbation is not given eo animo at all; it is only to ascertain that they are such materials as are suitable for the purpose; and notwithstanding that approval, it is only when they have been put up, and fixed to the house, in performance of the larger contract, that they are to be paid for."In Reid v. Macbeth and Gray 1904 AC 223 (C) the facts were similar. The dispute related to certain plates which had been prepared by contractors to be fitted in a ship. These plates had been passed by the surveyor and were marked with the number of the vessel and with marks showing the position which each plate was to occupy in the vessel. The ship owners laid claim to these plates on the ground that by reason of the approval by their surveyor and by the markings the property therein must be held to have passed to them, and that accordingly the assignees in bankruptcy of the contractors could not claim them. That contention was negatived by the House of Lords, who held that the facts relied on did not establish a contract of sale of the materials apart from the contract to construct the ship, and that the title to the materials did not as such pass to the ship-owners. | 1 | 2,162 | 758 | ### 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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which was particularly relied on provides :"All stores and materials brought to the Site shall become and remain the property of Government and shall not be removed off the Site without the prior written approval of the G. E. But whenever the works are finally completed, the contractor shall at his own expense forthwith remove from the Site all surplus stores and materials originally supplied by him and upon such removal, the same shall revest in and become the property of the Contractor."It is argued that the true effect of this provision vesting the materials in the Government is that those materials must be taken to have been sold to it. That this is not the true meaning of the Rule will be clear when regard is had to other provisions in the Rules. Thus, the materials which are used in the construction must be approved by the authorities as of the right quality, and they could be condemned even alter the construction is completed if they are not according to contract or of inferior quality, in which case the contractor has to remove them and rebuild with proper materials. Terms such as these and those in Rule 33 quoted above are usually inserted in building contracts with the object of ensuring that materials of the right sort are used in the construction and not with the intention of purchasing them. If R. 33 is to be construed as operating by way of sale of materials of the Government when they are brought on the site, it must follow that the surplus materials remaining after the completion of the work must be held to have been re-sold by the Government to the contractor, and that is not contended for.6. In Tripp v. Armitage (1839) 4 M and W 687 : 150 ER 1597 at p. 1603 (B), a builder who had been engaged to construct a hotel became insolvent, and dispute arose between the assignees in bankruptcy and the proprietors of the hotel as to the title to certain wooden sash-frames which had been delivered by the insolvent on the premises of the hotel and had been approved by the clerk and returned to the insolvent for the purpose of being affixed. The contention on behalf of the proprietors was that the goods having been approved by their surveyor, they must be held to have been appropriated to the contract and the property therein passed to them. In negativing this contention, Parke, B. observed :"It is said that the approbation of the surveyor is sufficient to constitute an acceptance by the defendants; but that approbation is not given eo animo at all; it is only to ascertain that they are such materials as are suitable for the purpose; and notwithstanding that approval, it is only when they have been put up, and fixed to the house, in performance of the larger contract, that they are to be paid for."In Reid v. Macbeth and Gray 1904 AC 223 (C) the facts were similar. The dispute related to certain plates which had been prepared by contractors to be fitted in a ship. These plates had been passed by the surveyor and were marked with the number of the vessel and with marks showing the position which each plate was to occupy in the vessel. The ship owners laid claim to these plates on the ground that by reason of the approval by their surveyor and by the markings the property therein must be held to have passed to them, and that accordingly the assignees in bankruptcy of the contractors could not claim them. That contention was negatived by the House of Lords, who held that the facts relied on did not establish a contract of sale of the materials apart from the contract to construct the ship, and that the title to the materials did not as such pass to the ship-owners. The position is the same in the present case.Rule 33 has not the effect of converting what is a lump sum contract for construction of buildings into a contract for the sale of materials used therein. It must therefore be held following the decision in State of Madras v. Gannon Dunkerley and Co. (A) (supra) that there has been no sale of the materials used by the petitioners in their constructions, and that no tax could be levied thereon.7. Counsel for the petitioners raised two other contentions, but they are unsubstantial and may be shortly disposed of. One was that in the definition of "turnover" in S. 2 (j), cl. (ii) which is what is applicable to the present case, there is no reference to sale of goods, and that, accordingly, even if Entry 48 in List II is to be interpreted in a wide sense, the provision as actually enacted does not, in fact, tax the supply of materials in works contracts, treating it as a sale. But the charging section is S. 4 (1), which makes it clear that the tax is on the gross turnover in respect of sales effected after the coming into force of the Act, and the obvious intention is to include the supply of materials in works contracts within the category of taxable turnover.8. It was next contended that the definition of "dealer" in S. 2 (d) required that the person should be engaged in the business of selling or supplying goods, that the petitioners who were building contractors were not engaged in the business of selling or supplying goods but of constructing buildings, and that therefore they were not dealers within that definition, and that as under S. 4 the tax could be imposed only on a dealer, the petitioners were not liable to be taxed. But if the supply of materials in construction works can be regarded as a sale, then clearly building contractors are engaged in the sale of materials, and they would be within the definition of "dealers" under the Act. There is no substance in this contention either.
### Response:
1
### Explanation:
The evidence placed before us leaves us in no doubt as to the true character of the contract. The tenders which were called for and received were for executing works for a lump sum, and in his acceptance of the tender of the petitioners dated 15th December 1956, the Deputy Chief Engineer stated :"The above tender was accepted by me on behalf of the President of India for a lump sum of Rupees 9,74,961."How this amount is made up is given in Annexure E to the reply statement. It will be seen therefrom that the petitioners were to construct nine blocks, and the amounts are worked out treating each of the blocks as one unit, and the figures are totalled up. It is impossible on this evidence to hold that there was any agreement for sale of the materials as such by the petitioners to theposition is the same in the present case.Rule 33 has not the effect of converting what is a lump sum contract for construction of buildings into a contract for the sale of materials used therein. It must therefore be held following the decision in State of Madras v. Gannon Dunkerley and Co. (A) (supra) that there has been no sale of the materials used by the petitioners in their constructions, and that no tax could be leviedthe charging section is S. 4 (1), which makes it clear that the tax is on the gross turnover in respect of sales effected after the coming into force of the Act, and the obvious intention is to include the supply of materials in works contracts within the category of taxableif the supply of materials in construction works can be regarded as a sale, then clearly building contractors are engaged in the sale of materials, and they would be within the definition of "dealers" under the Act. There is no substance in this contention either.Counsel for the petitioners raised two other contentions, but they are unsubstantial and may be shortly disposed of.In Tripp v. Armitage (1839) 4 M and W 687 : 150 ER 1597 at p. 1603 (B), a builder who had been engaged to construct a hotel became insolvent, and dispute arose between the assignees in bankruptcy and the proprietors of the hotel as to the title to certain wooden sash-frames which had been delivered by the insolvent on the premises of the hotel and had been approved by the clerk and returned to the insolvent for the purpose of being affixed. The contention on behalf of the proprietors was that the goods having been approved by their surveyor, they must be held to have been appropriated to the contract and the property therein passed to them. In negativing this contention, Parke, B. observed :"It is said that the approbation of the surveyor is sufficient to constitute an acceptance by the defendants; but that approbation is not given eo animo at all; it is only to ascertain that they are such materials as are suitable for the purpose; and notwithstanding that approval, it is only when they have been put up, and fixed to the house, in performance of the larger contract, that they are to be paid for."In Reid v. Macbeth and Gray 1904 AC 223 (C) the facts were similar. The dispute related to certain plates which had been prepared by contractors to be fitted in a ship. These plates had been passed by the surveyor and were marked with the number of the vessel and with marks showing the position which each plate was to occupy in the vessel. The ship owners laid claim to these plates on the ground that by reason of the approval by their surveyor and by the markings the property therein must be held to have passed to them, and that accordingly the assignees in bankruptcy of the contractors could not claim them. That contention was negatived by the House of Lords, who held that the facts relied on did not establish a contract of sale of the materials apart from the contract to construct the ship, and that the title to the materials did not as such pass to the ship-owners.
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Union of India Vs. Rekha Majhi | salary and the other on the family pension. Consequently, the appellants re-fixed the family pension of the respondent after deducting dearness reliefs and issued orders for recovery of dearness relief paid to her on family pension. Aggrieved by this order the respondent filed an O.A. before the Central Administrative Tribunal, Calcutta. The Tribunal was of the view that since the respondent was not re-employed as contemplated under rule 21(ii) of the Rules, she was entitled to draw dearness relief on the salary as well as on the family pension. Consequently, the O.A. was allowed. It is against this order the appellants are in appeal before this Court. 3. Rule 21 of the Railways Services (Pension) Rules, 1993 reads thus : "Rule 21. Dearness relief on pension or family pension (i) ........... (ii) If a pensioner is re-employed under the Central or a State Government or a Corporation, Company, Body or Bank under such Government in India or abroad including permanent absorption in such Corporation, Company, Body or Bank he shall not be eligible to draw dearness relief on pension or family pension during the period of such re-employment." 4. On the strength of the said rule it is contended by the counsel for the appellants that the respondent having become employee of the railways, she was not entitled to draw dearness relief on the family pension given to her. Whereas the contention of the respondents counsel is that it is not a case of re-employment but is a case of first regular employment in the railways and, therefore, Rule 21 has no application in the present case and she is entitled to draw dearness relief on the salary received by her as well as on the family pension given to her. 5. It is well-known that dearness relief or allowance is being paid to compensate the employees against rise in the price index. The question that arises is, whether such an employee is entitled to draw two dearness reliefs - one on the salary and the other on the family pension paid to him. 6. We have heard learned counsel for the parties. A perusal of Rule 21(ii) shows that the object behind framing the Rule is that a pensioner cannot enjoy two dearness reliefs simultaneously, one on his pension and the other on his salary if he takes up re-employment, and, therefore, in such a situation to deny dearness relief on the pension. It is not disputed that the respondent is getting family pension and, therefore, she is a pensioner. That being the object of the Rule, we have to give wider meaning to the expression "re-employed" which finds place in Rule 21(ii) of the Rules. The expression "re-employed", if construed in the light of the object behind the Rule and facts of this case, would also include first regular appointment in the service. 7. In a case titled Union of India and others v. G. Vasudevan Pillay and others, 1995(2) SCC 32 : 1995(2) SCT 842 (SC), wherein this Court held: "In some of the case, we are concerned with the denial of dearness relief on family pension on employment of dependents like widows of the ex-servicemen. This decision has to be sustained in view of what has been stated above regarding denial of DR on pension on re-employment inasmuch as the official documents referred on that point also mention above denial of DR on family pension on employment. The rationale of this decision is getting of dearness allowance by the dependents on their pay, which is drawn following employment, because of which dearness relief on family pension can justly be denied, as has been done." The ratio of the decision in the case of Union of India & others (supra) is, that a pensioner cannot draw two dearness reliefs - one on the salary and the other on pension. Once it is accepted that the respondent is a pensioner it is immaterial whether such employment of the pensioner is first, regular or temporary appointment or re-appointment. In view of such a legal position, the case of the respondent would fall within the four corners of clause (ii) of Rule 21 of the said Rules. The respondent being a widow of an employee, who died in harness, was given an employment in the railways on compassionate grounds. Technically the respondent has come in employment in substitution of her husband. Simultaneously, the railways have given her family pension and as such she is a pensioner. Therefore, in such circumstances Rule 21 would be attracted and the case of the respondent being a pensioner would be governed by the said Rules. Consequently, the respondent was legally not entitled to draw two dearness reliefs - one on the salary and the other on family pension paid to her. We are, therefore, of the opinion that the appellants are legally justified in denying the respondent dearness reliefs on her family pension. 8. Learned counsel for the respondent then urged that in any case the appellants are not entitled to recover the dearness reliefs on the family pension paid to the respondent between 26.1.87 to 25.1.94. Learned counsel for the appellants has not drawn to our notice any circular or rule prior to 1993. Rule 21 finds place in the Rules which was published in 1993. It, therefore, appears that the dearness relief on the pension paid to the respondent was voluntarily and after a conscious decision taken in respect thereof. And it was only after the Rules 1993 were promulgated and orders for re-fixing her pension and recovery of excess amount on family pension paid to her were issued. Moreover, it is stated that the respondent who is a widow is the lone bread earner of the family and her financial condition is not such as to pay back the excess amount she has already drawn. Under such circumstances, we are of the view that the recovery of excess pension paid to the respondent is not justified on legal and equitable grounds. | 1[ds]The ratio of the decision in the case of Union of India & others (supra) is, that a pensioner cannot draw two dearness reliefsone on the salary and the other on pension. Once it is accepted that the respondent is a pensioner it is immaterial whether such employment of the pensioner is first, regular or temporary appointment orIn view of such a legal position, the case of the respondent would fall within the four corners of clause (ii) of Rule 21 of the said Rules. The respondent being a widow of an employee, who died in harness, was given an employment in the railways on compassionate grounds. Technically the respondent has come in employment in substitution of her husband. Simultaneously, the railways have given her family pension and as such she is a pensioner. Therefore, in such circumstances Rule 21 would be attracted and the case of the respondent being a pensioner would be governed by the said Rules. Consequently, the respondent was legally not entitled to draw two dearness reliefsone on the salary and the other on family pension paid to her. We are, therefore, of the opinion that the appellants are legally justified in denying the respondent dearness reliefs on her familycounsel for the appellants has not drawn to our notice any circular or rule prior to 1993. Rule 21 finds place in the Rules which was published in 1993. It, therefore, appears that the dearness relief on the pension paid to the respondent was voluntarily and after a conscious decision taken in respect thereof. And it was only after the Rules 1993 were promulgated and orders forher pension and recovery of excess amount on family pension paid to her were issued. Moreover, it is stated that the respondent who is a widow is the lone bread earner of the family and her financial condition is not such as to pay back the excess amount she has already drawn. Under such circumstances, we are of the view that the recovery of excess pension paid to the respondent is not justified on legal and equitable grounds. | 1 | 1,279 | 383 | ### 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:
salary and the other on the family pension. Consequently, the appellants re-fixed the family pension of the respondent after deducting dearness reliefs and issued orders for recovery of dearness relief paid to her on family pension. Aggrieved by this order the respondent filed an O.A. before the Central Administrative Tribunal, Calcutta. The Tribunal was of the view that since the respondent was not re-employed as contemplated under rule 21(ii) of the Rules, she was entitled to draw dearness relief on the salary as well as on the family pension. Consequently, the O.A. was allowed. It is against this order the appellants are in appeal before this Court. 3. Rule 21 of the Railways Services (Pension) Rules, 1993 reads thus : "Rule 21. Dearness relief on pension or family pension (i) ........... (ii) If a pensioner is re-employed under the Central or a State Government or a Corporation, Company, Body or Bank under such Government in India or abroad including permanent absorption in such Corporation, Company, Body or Bank he shall not be eligible to draw dearness relief on pension or family pension during the period of such re-employment." 4. On the strength of the said rule it is contended by the counsel for the appellants that the respondent having become employee of the railways, she was not entitled to draw dearness relief on the family pension given to her. Whereas the contention of the respondents counsel is that it is not a case of re-employment but is a case of first regular employment in the railways and, therefore, Rule 21 has no application in the present case and she is entitled to draw dearness relief on the salary received by her as well as on the family pension given to her. 5. It is well-known that dearness relief or allowance is being paid to compensate the employees against rise in the price index. The question that arises is, whether such an employee is entitled to draw two dearness reliefs - one on the salary and the other on the family pension paid to him. 6. We have heard learned counsel for the parties. A perusal of Rule 21(ii) shows that the object behind framing the Rule is that a pensioner cannot enjoy two dearness reliefs simultaneously, one on his pension and the other on his salary if he takes up re-employment, and, therefore, in such a situation to deny dearness relief on the pension. It is not disputed that the respondent is getting family pension and, therefore, she is a pensioner. That being the object of the Rule, we have to give wider meaning to the expression "re-employed" which finds place in Rule 21(ii) of the Rules. The expression "re-employed", if construed in the light of the object behind the Rule and facts of this case, would also include first regular appointment in the service. 7. In a case titled Union of India and others v. G. Vasudevan Pillay and others, 1995(2) SCC 32 : 1995(2) SCT 842 (SC), wherein this Court held: "In some of the case, we are concerned with the denial of dearness relief on family pension on employment of dependents like widows of the ex-servicemen. This decision has to be sustained in view of what has been stated above regarding denial of DR on pension on re-employment inasmuch as the official documents referred on that point also mention above denial of DR on family pension on employment. The rationale of this decision is getting of dearness allowance by the dependents on their pay, which is drawn following employment, because of which dearness relief on family pension can justly be denied, as has been done." The ratio of the decision in the case of Union of India & others (supra) is, that a pensioner cannot draw two dearness reliefs - one on the salary and the other on pension. Once it is accepted that the respondent is a pensioner it is immaterial whether such employment of the pensioner is first, regular or temporary appointment or re-appointment. In view of such a legal position, the case of the respondent would fall within the four corners of clause (ii) of Rule 21 of the said Rules. The respondent being a widow of an employee, who died in harness, was given an employment in the railways on compassionate grounds. Technically the respondent has come in employment in substitution of her husband. Simultaneously, the railways have given her family pension and as such she is a pensioner. Therefore, in such circumstances Rule 21 would be attracted and the case of the respondent being a pensioner would be governed by the said Rules. Consequently, the respondent was legally not entitled to draw two dearness reliefs - one on the salary and the other on family pension paid to her. We are, therefore, of the opinion that the appellants are legally justified in denying the respondent dearness reliefs on her family pension. 8. Learned counsel for the respondent then urged that in any case the appellants are not entitled to recover the dearness reliefs on the family pension paid to the respondent between 26.1.87 to 25.1.94. Learned counsel for the appellants has not drawn to our notice any circular or rule prior to 1993. Rule 21 finds place in the Rules which was published in 1993. It, therefore, appears that the dearness relief on the pension paid to the respondent was voluntarily and after a conscious decision taken in respect thereof. And it was only after the Rules 1993 were promulgated and orders for re-fixing her pension and recovery of excess amount on family pension paid to her were issued. Moreover, it is stated that the respondent who is a widow is the lone bread earner of the family and her financial condition is not such as to pay back the excess amount she has already drawn. Under such circumstances, we are of the view that the recovery of excess pension paid to the respondent is not justified on legal and equitable grounds.
### Response:
1
### Explanation:
The ratio of the decision in the case of Union of India & others (supra) is, that a pensioner cannot draw two dearness reliefsone on the salary and the other on pension. Once it is accepted that the respondent is a pensioner it is immaterial whether such employment of the pensioner is first, regular or temporary appointment orIn view of such a legal position, the case of the respondent would fall within the four corners of clause (ii) of Rule 21 of the said Rules. The respondent being a widow of an employee, who died in harness, was given an employment in the railways on compassionate grounds. Technically the respondent has come in employment in substitution of her husband. Simultaneously, the railways have given her family pension and as such she is a pensioner. Therefore, in such circumstances Rule 21 would be attracted and the case of the respondent being a pensioner would be governed by the said Rules. Consequently, the respondent was legally not entitled to draw two dearness reliefsone on the salary and the other on family pension paid to her. We are, therefore, of the opinion that the appellants are legally justified in denying the respondent dearness reliefs on her familycounsel for the appellants has not drawn to our notice any circular or rule prior to 1993. Rule 21 finds place in the Rules which was published in 1993. It, therefore, appears that the dearness relief on the pension paid to the respondent was voluntarily and after a conscious decision taken in respect thereof. And it was only after the Rules 1993 were promulgated and orders forher pension and recovery of excess amount on family pension paid to her were issued. Moreover, it is stated that the respondent who is a widow is the lone bread earner of the family and her financial condition is not such as to pay back the excess amount she has already drawn. Under such circumstances, we are of the view that the recovery of excess pension paid to the respondent is not justified on legal and equitable grounds.
|
Het Ram Beniwal & Others Vs. Raghuveer Singh & Others | force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it. (3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit. (4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person: Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission. (5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer. Explanation.-For the purpose of sub-sections (4) and (5),- (a)" company” means anybody corporate and includes a firm or other association of individuals ; and (b) "director", in relation to a firm, means a partner in the firm. 12. We are, in the present case, concerned with Section 2(c)(i) of the Act which deals with scandalizing or lowering the authority of the Court. It has been held by this Court that judges need not be protected and that they can take care of themselves. It is the right and interest of the public in the due administration of justice that have to be protected. See Asharam M. Jain v. A. T. Gupta, reported in (1983) 4 SCC 125 . Vilification of judges would lead to the destruction of the system of administration of justice. The statements made by the Appellants are not only derogatory but also have the propensity to lower the authority of the Court. Accusing judges of corruption results in denigration of the institution which has an effect of lowering the confidence of the public in the system of administration of justice. A perusal of the allegations made by the Appellants cannot be termed as fair criticism on the merits of the case. The Appellants indulged in an assault on the integrity of the judges of the High Court by making baseless and unsubstantiated allegations. They are not entitled to seek shelter under Section 5 of the Act.13. The oft-quoted passage from Ambard v. Attorney-General for Trinidad and Tobago, [1936] A.C. 322 is that “[j]ustice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.” The Privy Council in the same judgment held as follows: “The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune.” [Emphasis ours]In Indirect Tax Practitioners Association v. R. K. Jain (supra) this Court held in paragraph 23 as follows: “Ordinarily, the Court would not use the power to punish for contempt for curbing the right of freedom of speech and expression, which is guaranteed under Article 19 (1) (a) of the Constitution. Only when the criticism of judicial institution transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate attempt to denigrate the institution then the court would use this power.” 14. Every citizen has a fundamental right to speech, guaranteed under Article 19 of the Constitution of India. Contempt of Court is one of the restrictions on such right. We are conscious that the power under the Act has to be exercised sparingly and not in a routine manner. If there is a calculated effort to undermine the judiciary, the Courts will exercise their jurisdiction to punish the offender for committing contempt. We approve the findings recorded by the High Court that the Appellants have transgressed all decency by making serious allegations of corruption and bias against the High Court. The caustic comments made by the Appellants cannot, by any stretch of imagination, be termed as fair criticism. The statements made by the Appellants, accusing the judiciary of corruption lower the authority of the Court. The Explanation to sub-Section 12 (1) of the Act provides that an apology should not be rejected merely on the ground that it is qualified or tendered at a belated stage, if the accused makes it bona fide. The stand taken by the Appellants in the contempt petition and the affidavit filed in this Court does not inspire any confidence that the apology is made bona fide. After a detailed consideration of the submissions made by both sides and the evidence on record, we are in agreement with the judgment of the High Court that the Appellants are guilty of committing contempt of Court. | 0[ds]12. We are, in the present case, concerned with Section 2(c)(i) of the Act which deals with scandalizing or lowering the authority of the Court. It has been held by this Court that judges need not be protected and that they can take care of themselves. It is the right and interest of the public in the due administration of justice that have to be protected. See Asharam M. Jain v. A. T. Gupta, reported in (1983) 4 SCC 125 . Vilification of judges would lead to the destruction of the system of administration of justice. The statements made by the Appellants are not only derogatory but also have the propensity to lower the authority of the Court. Accusing judges of corruption results in denigration of the institution which has an effect of lowering the confidence of the public in the system of administration of justice. A perusal of the allegations made by the Appellants cannot be termed as fair criticism on the merits of the case. The Appellants indulged in an assault on the integrity of the judges of the High Court by making baseless and unsubstantiated allegations. They are not entitled to seek shelter under Section 5 of the Act.13. Thepassage from Ambard v.for Trinidad and Tobago, [1936] A.C. 322 is thatis not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinaryThe Privy Council in the same judgment held as follows:path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they areours]In Indirect Tax Practitioners Association v. R. K. Jain (supra) this Court held in paragraph 23 asthe Court would not use the power to punish for contempt for curbing the right of freedom of speech and expression, which is guaranteed under Article 19 (1) (a) of the Constitution. Only when the criticism of judicial institution transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate attempt to denigrate the institution then the court would use this power.Every citizen has a fundamental right to speech, guaranteed under Article 19 of the Constitution of India. Contempt of Court is one of the restrictions on such right. We are conscious that the power under the Act has to be exercised sparingly and not in a routine manner. If there is a calculated effort to undermine the judiciary, the Courts will exercise their jurisdiction to punish the offender for committing contempt. We approve the findings recorded by the High Court that the Appellants have transgressed all decency by making serious allegations of corruption and bias against the High Court. The caustic comments made by the Appellants cannot, by any stretch of imagination, be termed as fair criticism. The statements made by the Appellants, accusing the judiciary of corruption lower the authority of the Court. The Explanation to12 (1) of the Act provides that an apology should not be rejected merely on the ground that it is qualified or tendered at a belated stage, if the accused makes it bona fide. The stand taken by the Appellants in the contempt petition and the affidavit filed in this Court does not inspire any confidence that the apology is made bona fide. After a detailed consideration of the submissions made by both sides and the evidence on record, we are in agreement with the judgment of the High Court that the Appellants are guilty of committing contempt of Court. | 0 | 3,049 | 686 | ### 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:
force, no court shall impose a sentence in excess of that specified in sub-section (1) for any contempt either in respect of itself or of a court subordinate to it. (3) Notwithstanding anything contained in this section, where a person is found guilty of a civil contempt, the court, if it considers that a fine will not meet the ends of justice and that a sentence of imprisonment is necessary shall, instead of sentencing him to simple imprisonment, direct that he be detained in a civil prison for such period not exceeding six months as it may think fit. (4) Where the person found guilty of contempt of court in respect of any undertaking given to a court is a company, every person who, at the time the contempt was committed, was in charge of, and was responsible to, the company for the conduct of the business of the company, as well as the company, shall be deemed to be guilty of the contempt and the punishment may be enforced, with the leave of the court, by the detention in civil prison of each such person: Provided that nothing contained in this sub-section shall render any such person liable to such punishment if he proves that the contempt was committed without his knowledge or that he exercised all due diligence to prevent its commission. (5) Notwithstanding anything contained in sub-section (4), where the contempt of court referred to therein has been committed by a company and it is proved that the contempt has been committed with the consent or connivance of, or is attributable to any neglect on the part of, any director, manager, secretary or other officer of the company, such director, manager, secretary or other officer shall also be deemed to be guilty of the contempt and the punishment may be enforced with the leave of the court, by the detention in civil prison of such director, manager, secretary or other officer. Explanation.-For the purpose of sub-sections (4) and (5),- (a)" company” means anybody corporate and includes a firm or other association of individuals ; and (b) "director", in relation to a firm, means a partner in the firm. 12. We are, in the present case, concerned with Section 2(c)(i) of the Act which deals with scandalizing or lowering the authority of the Court. It has been held by this Court that judges need not be protected and that they can take care of themselves. It is the right and interest of the public in the due administration of justice that have to be protected. See Asharam M. Jain v. A. T. Gupta, reported in (1983) 4 SCC 125 . Vilification of judges would lead to the destruction of the system of administration of justice. The statements made by the Appellants are not only derogatory but also have the propensity to lower the authority of the Court. Accusing judges of corruption results in denigration of the institution which has an effect of lowering the confidence of the public in the system of administration of justice. A perusal of the allegations made by the Appellants cannot be termed as fair criticism on the merits of the case. The Appellants indulged in an assault on the integrity of the judges of the High Court by making baseless and unsubstantiated allegations. They are not entitled to seek shelter under Section 5 of the Act.13. The oft-quoted passage from Ambard v. Attorney-General for Trinidad and Tobago, [1936] A.C. 322 is that “[j]ustice is not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinary men.” The Privy Council in the same judgment held as follows: “The path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they are immune.” [Emphasis ours]In Indirect Tax Practitioners Association v. R. K. Jain (supra) this Court held in paragraph 23 as follows: “Ordinarily, the Court would not use the power to punish for contempt for curbing the right of freedom of speech and expression, which is guaranteed under Article 19 (1) (a) of the Constitution. Only when the criticism of judicial institution transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate attempt to denigrate the institution then the court would use this power.” 14. Every citizen has a fundamental right to speech, guaranteed under Article 19 of the Constitution of India. Contempt of Court is one of the restrictions on such right. We are conscious that the power under the Act has to be exercised sparingly and not in a routine manner. If there is a calculated effort to undermine the judiciary, the Courts will exercise their jurisdiction to punish the offender for committing contempt. We approve the findings recorded by the High Court that the Appellants have transgressed all decency by making serious allegations of corruption and bias against the High Court. The caustic comments made by the Appellants cannot, by any stretch of imagination, be termed as fair criticism. The statements made by the Appellants, accusing the judiciary of corruption lower the authority of the Court. The Explanation to sub-Section 12 (1) of the Act provides that an apology should not be rejected merely on the ground that it is qualified or tendered at a belated stage, if the accused makes it bona fide. The stand taken by the Appellants in the contempt petition and the affidavit filed in this Court does not inspire any confidence that the apology is made bona fide. After a detailed consideration of the submissions made by both sides and the evidence on record, we are in agreement with the judgment of the High Court that the Appellants are guilty of committing contempt of Court.
### Response:
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### Explanation:
12. We are, in the present case, concerned with Section 2(c)(i) of the Act which deals with scandalizing or lowering the authority of the Court. It has been held by this Court that judges need not be protected and that they can take care of themselves. It is the right and interest of the public in the due administration of justice that have to be protected. See Asharam M. Jain v. A. T. Gupta, reported in (1983) 4 SCC 125 . Vilification of judges would lead to the destruction of the system of administration of justice. The statements made by the Appellants are not only derogatory but also have the propensity to lower the authority of the Court. Accusing judges of corruption results in denigration of the institution which has an effect of lowering the confidence of the public in the system of administration of justice. A perusal of the allegations made by the Appellants cannot be termed as fair criticism on the merits of the case. The Appellants indulged in an assault on the integrity of the judges of the High Court by making baseless and unsubstantiated allegations. They are not entitled to seek shelter under Section 5 of the Act.13. Thepassage from Ambard v.for Trinidad and Tobago, [1936] A.C. 322 is thatis not a cloistered virtue: she must be allowed to suffer the scrutiny and respectful even though outspoken comments of ordinaryThe Privy Council in the same judgment held as follows:path of criticism is a public way: the wrong headed are permitted to err therein: provided that members of the public abstain from imputing improper motives to those taking part in the administration of justice, and are genuinely exercising a right of criticism, and not acting in malice or attempting to impair the administration of justice, they areours]In Indirect Tax Practitioners Association v. R. K. Jain (supra) this Court held in paragraph 23 asthe Court would not use the power to punish for contempt for curbing the right of freedom of speech and expression, which is guaranteed under Article 19 (1) (a) of the Constitution. Only when the criticism of judicial institution transgresses all limits of decency and fairness or there is total lack of objectivity or there is deliberate attempt to denigrate the institution then the court would use this power.Every citizen has a fundamental right to speech, guaranteed under Article 19 of the Constitution of India. Contempt of Court is one of the restrictions on such right. We are conscious that the power under the Act has to be exercised sparingly and not in a routine manner. If there is a calculated effort to undermine the judiciary, the Courts will exercise their jurisdiction to punish the offender for committing contempt. We approve the findings recorded by the High Court that the Appellants have transgressed all decency by making serious allegations of corruption and bias against the High Court. The caustic comments made by the Appellants cannot, by any stretch of imagination, be termed as fair criticism. The statements made by the Appellants, accusing the judiciary of corruption lower the authority of the Court. The Explanation to12 (1) of the Act provides that an apology should not be rejected merely on the ground that it is qualified or tendered at a belated stage, if the accused makes it bona fide. The stand taken by the Appellants in the contempt petition and the affidavit filed in this Court does not inspire any confidence that the apology is made bona fide. After a detailed consideration of the submissions made by both sides and the evidence on record, we are in agreement with the judgment of the High Court that the Appellants are guilty of committing contempt of Court.
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Commissioner Of Income Tax, Gujarat Vs. M/s. Saurashtra Cement Limited | nature of a revenue receipt. According to the learned counsel, it was on account of late commissioning of the plant that the assessee could not commence production as per its schedule and thereby suffered loss in its profits, which was compensated by the supplier and, therefore, the said amount should have been considered as revenue receipt. 9. Per contra, Mr. Desai, learned counsel appearing for the assessee, while supporting the decision of the High Court submitted that the amount received by the assessee was by way of compensation for delay in the delivery and installation of the plant and had a direct nexus with the capital asset and therefore, it was in the nature of a capital receipt. Learned counsel also argued that answer to the questions stands concluded in favour of the assessee by the decision of the High court of Madras in E.I.D. Parry Ltd. Vs. Commissioner of Income Tax ([1998] 233 ITR 335 (Mad)), which has attained finality on account of dismissal of the Civil Appeal preferred by the Revenue against the said judgment. 10. Thus, the short question for determination is whether the liquidated damages received by the assessee from the supplier of the plant and machinery on account of delay in the supply of plant is a capital or a revenue receipt? 11. The question whether a particular receipt is capital or revenue has frequently engaged the attention of the Courts but it has not been possible to lay down any single criterion as decisive in the determination of the question. Time and again, it has been reiterated that answer to the question must ultimately depend on the facts of a 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 conclusion. In Rai Bahadur Jairam Valji (supra), it was observed thus: "The question whether a receipt is capital or income has frequently come up for determination before the courts. Various rules have been enunciated as furnishing a key to the solution of the question, but as often observed by the highest authorities, it is not possible to lay down any single test as infallible or any single criterion as decisive in the determination of the question, which 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. Vide Van Den Berghs Ltd. v. Clark ((1935) 3 I.T.R. (Eng. Cas.) 17). That, however, is not to say that the question is one of fact, for, as observed in Davies (H.M. Inspector of Taxes) v. Shell Company of China Ltd. ((1952) 22 I.T.R. (Suppl.) 1), "these questions between capital and income, trading profit or no trading profit, are questions which, though they may depend no doubt to a very great extent on the particular facts of each case, do involve a conclusion of law to be drawn from those facts." 12. In Kettlewell Bullen and Co. Ltd. (supra), dealing with the question whether compensation received by an agent for premature determination of the contract of agency is a capital or a revenue receipt, echoing the views expressed in Rai Bahadur Jairam Valji (supra) and analysing numerous judgments on the point, this Court laid down the following broad principle, which may be taken into account in reaching a decision on the issue : "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." 13. We have considered the matter in the light of the afore-noted broad principle. It is clear from clause No.6 of the agreement dated 1st September 1967, extracted above, that the liquidated damages were to be calculated at 0.5% of the price of the respective machinery and equipment to which the items were delivered late, for each month of delay in delivery completion, without proof of the actual damages the assessee would have suffered on account of the delay. The delay in supply could be of the whole plant or a part thereof but the determination of damages was not based upon the calculation made in respect of loss of profit on account of supply of a particular part of the plant. It is evident that the damages to the assessee was directly and intimately linked with the procurement of a capital asset i.e. the cement plant, which would obviously lead to delay in coming into existence of the profit making apparatus, rather than a receipt in the course of profit earning process. Compensation paid for the delay in procurement of capital asset amounted to sterilization of the capital asset of the assessee as supplier had failed to supply the plant within time as stipulated in the agreement and clause No.6 thereof came into play. The afore-stated amount received by the assessee towards compensation for sterilization of the profit earning source, not in the ordinary course of their business, in our opinion, was a capital receipt in the hands of the assessee. We are, therefore, in agreement with the opinion recorded by the High Court on question Nos. (i) and (ii) extracted in Para 1 (supra) and hold that the amount of Rs.8,50,000/- received by the assessee from the suppliers of the plant was in the nature of a capital receipt. | 0[ds]11. The question whether a particular receipt is capital or revenue has frequently engaged the attention of the Courts but it has not been possible to lay down any single criterion as decisive in the determination of the question. Time and again, it has been reiterated that answer to the question must ultimately depend on the facts of a 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 conclusion. In Rai Bahadur Jairam Valji (supra), it was observed thus: "The question whether a receipt is capital or income has frequently come up for determination before the courts. Various rules have been enunciated as furnishing a key to the solution of the question, but as often observed by the highest authorities, it is not possible to lay down any single test as infallible or any single criterion as decisive in the determination of the question, which 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. Vide Van Den Berghs Ltd. v. Clark ((1935) 3 I.T.R. (Eng. Cas.) 17). That, however, is not to say that the question is one of fact, for, as observed in Davies (H.M. Inspector of Taxes) v. Shell Company of China Ltd. ((1952) 22 I.T.R. (Suppl.) 1), "these questions between capital and income, trading profit or no trading profit, are questions which, though they may depend no doubt to a very great extent on the particular facts of each case, do involve a conclusion of law to be drawn from those facts.In Kettlewell Bullen and Co. Ltd. (supra), dealing with the question whether compensation received by an agent for premature determination of the contract of agency is a capital or a revenue receipt, echoing the views expressed in Rai Bahadur Jairam Valji (supra) and analysing numerous judgments on the point, this Court laid down the following broad principle, which may be taken into account in reaching a decision on the issue : "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.We have considered the matter in the light of thebroad principle. It is clear from clause No.6 of the agreement dated 1st September 1967, extracted above, that the liquidated damages were to be calculated at 0.5% of the price of the respective machinery and equipment to which the items were delivered late, for each month of delay in delivery completion, without proof of the actual damages the assessee would have suffered on account of the delay. The delay in supply could be of the whole plant or a part thereof but the determination of damages was not based upon the calculation made in respect of loss of profit on account of supply of a particular part of the plant. It is evident that the damages to the assessee was directly and intimately linked with the procurement of a capital asset i.e. the cement plant, which would obviously lead to delay in coming into existence of the profit making apparatus, rather than a receipt in the course of profit earning process. Compensation paid for the delay in procurement of capital asset amounted to sterilization of the capital asset of the assessee as supplier had failed to supply the plant within time as stipulated in the agreement and clause No.6 thereof came into play. Theamount received by the assessee towards compensation for sterilization of the profit earning source, not in the ordinary course of their business, in our opinion, was a capital receipt in the hands of the assessee. We are, therefore, in agreement with the opinion recorded by the High Court on question Nos. (i) and (ii) extracted in Para 1 (supra) and hold that the amount of Rs.8,50,000/received by the assessee from the suppliers of the plant was in the nature of a capital receipt. | 0 | 2,326 | 869 | ### Instruction:
Forecast the likely verdict of the case (granting (1) or denying (0) the appeal) and then rationalize your prediction by pinpointing and explaining pivotal sentences in the case document.
### Input:
nature of a revenue receipt. According to the learned counsel, it was on account of late commissioning of the plant that the assessee could not commence production as per its schedule and thereby suffered loss in its profits, which was compensated by the supplier and, therefore, the said amount should have been considered as revenue receipt. 9. Per contra, Mr. Desai, learned counsel appearing for the assessee, while supporting the decision of the High Court submitted that the amount received by the assessee was by way of compensation for delay in the delivery and installation of the plant and had a direct nexus with the capital asset and therefore, it was in the nature of a capital receipt. Learned counsel also argued that answer to the questions stands concluded in favour of the assessee by the decision of the High court of Madras in E.I.D. Parry Ltd. Vs. Commissioner of Income Tax ([1998] 233 ITR 335 (Mad)), which has attained finality on account of dismissal of the Civil Appeal preferred by the Revenue against the said judgment. 10. Thus, the short question for determination is whether the liquidated damages received by the assessee from the supplier of the plant and machinery on account of delay in the supply of plant is a capital or a revenue receipt? 11. The question whether a particular receipt is capital or revenue has frequently engaged the attention of the Courts but it has not been possible to lay down any single criterion as decisive in the determination of the question. Time and again, it has been reiterated that answer to the question must ultimately depend on the facts of a 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 conclusion. In Rai Bahadur Jairam Valji (supra), it was observed thus: "The question whether a receipt is capital or income has frequently come up for determination before the courts. Various rules have been enunciated as furnishing a key to the solution of the question, but as often observed by the highest authorities, it is not possible to lay down any single test as infallible or any single criterion as decisive in the determination of the question, which 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. Vide Van Den Berghs Ltd. v. Clark ((1935) 3 I.T.R. (Eng. Cas.) 17). That, however, is not to say that the question is one of fact, for, as observed in Davies (H.M. Inspector of Taxes) v. Shell Company of China Ltd. ((1952) 22 I.T.R. (Suppl.) 1), "these questions between capital and income, trading profit or no trading profit, are questions which, though they may depend no doubt to a very great extent on the particular facts of each case, do involve a conclusion of law to be drawn from those facts." 12. In Kettlewell Bullen and Co. Ltd. (supra), dealing with the question whether compensation received by an agent for premature determination of the contract of agency is a capital or a revenue receipt, echoing the views expressed in Rai Bahadur Jairam Valji (supra) and analysing numerous judgments on the point, this Court laid down the following broad principle, which may be taken into account in reaching a decision on the issue : "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." 13. We have considered the matter in the light of the afore-noted broad principle. It is clear from clause No.6 of the agreement dated 1st September 1967, extracted above, that the liquidated damages were to be calculated at 0.5% of the price of the respective machinery and equipment to which the items were delivered late, for each month of delay in delivery completion, without proof of the actual damages the assessee would have suffered on account of the delay. The delay in supply could be of the whole plant or a part thereof but the determination of damages was not based upon the calculation made in respect of loss of profit on account of supply of a particular part of the plant. It is evident that the damages to the assessee was directly and intimately linked with the procurement of a capital asset i.e. the cement plant, which would obviously lead to delay in coming into existence of the profit making apparatus, rather than a receipt in the course of profit earning process. Compensation paid for the delay in procurement of capital asset amounted to sterilization of the capital asset of the assessee as supplier had failed to supply the plant within time as stipulated in the agreement and clause No.6 thereof came into play. The afore-stated amount received by the assessee towards compensation for sterilization of the profit earning source, not in the ordinary course of their business, in our opinion, was a capital receipt in the hands of the assessee. We are, therefore, in agreement with the opinion recorded by the High Court on question Nos. (i) and (ii) extracted in Para 1 (supra) and hold that the amount of Rs.8,50,000/- received by the assessee from the suppliers of the plant was in the nature of a capital receipt.
### Response:
0
### Explanation:
11. The question whether a particular receipt is capital or revenue has frequently engaged the attention of the Courts but it has not been possible to lay down any single criterion as decisive in the determination of the question. Time and again, it has been reiterated that answer to the question must ultimately depend on the facts of a 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 conclusion. In Rai Bahadur Jairam Valji (supra), it was observed thus: "The question whether a receipt is capital or income has frequently come up for determination before the courts. Various rules have been enunciated as furnishing a key to the solution of the question, but as often observed by the highest authorities, it is not possible to lay down any single test as infallible or any single criterion as decisive in the determination of the question, which 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. Vide Van Den Berghs Ltd. v. Clark ((1935) 3 I.T.R. (Eng. Cas.) 17). That, however, is not to say that the question is one of fact, for, as observed in Davies (H.M. Inspector of Taxes) v. Shell Company of China Ltd. ((1952) 22 I.T.R. (Suppl.) 1), "these questions between capital and income, trading profit or no trading profit, are questions which, though they may depend no doubt to a very great extent on the particular facts of each case, do involve a conclusion of law to be drawn from those facts.In Kettlewell Bullen and Co. Ltd. (supra), dealing with the question whether compensation received by an agent for premature determination of the contract of agency is a capital or a revenue receipt, echoing the views expressed in Rai Bahadur Jairam Valji (supra) and analysing numerous judgments on the point, this Court laid down the following broad principle, which may be taken into account in reaching a decision on the issue : "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.We have considered the matter in the light of thebroad principle. It is clear from clause No.6 of the agreement dated 1st September 1967, extracted above, that the liquidated damages were to be calculated at 0.5% of the price of the respective machinery and equipment to which the items were delivered late, for each month of delay in delivery completion, without proof of the actual damages the assessee would have suffered on account of the delay. The delay in supply could be of the whole plant or a part thereof but the determination of damages was not based upon the calculation made in respect of loss of profit on account of supply of a particular part of the plant. It is evident that the damages to the assessee was directly and intimately linked with the procurement of a capital asset i.e. the cement plant, which would obviously lead to delay in coming into existence of the profit making apparatus, rather than a receipt in the course of profit earning process. Compensation paid for the delay in procurement of capital asset amounted to sterilization of the capital asset of the assessee as supplier had failed to supply the plant within time as stipulated in the agreement and clause No.6 thereof came into play. Theamount received by the assessee towards compensation for sterilization of the profit earning source, not in the ordinary course of their business, in our opinion, was a capital receipt in the hands of the assessee. We are, therefore, in agreement with the opinion recorded by the High Court on question Nos. (i) and (ii) extracted in Para 1 (supra) and hold that the amount of Rs.8,50,000/received by the assessee from the suppliers of the plant was in the nature of a capital receipt.
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M/s. Soorajmull Nagarmull Vs. Sri Brijesh Mehrotra & Ors | applications were also dismissed vide order dated 05.01.2017 and benefits were not granted as per Section 40 of the 2013 Act. 6. Counter affidavit is filed on behalf of the respondents. While denying various allegations made by the petitioner, it is the case of the respondents that in compliance of the directions issued by this Court in the order dated 17.08.2015 a fresh notification was issued which was also declared as lapsed by this Court in the order dated 10.02.2020 by recording the statement made on behalf of the State that a fresh notification would be issued. In the said order this Court has clarified that the court has not expressed any opinion on the nature of the land etc. and left open all the issues. It is stated that in view of the order dated 10.02.2020, a fresh notification was issued on 14.02.2020 under Section 11 of the 2013 Act and after following the necessary procedure award was passed on 12.11.2020. As such there was no violation of any directions issued by the Court much less any wilful violation as alleged by the petitioner. It is the case of the respondents that if the petitioner is aggrieved by the determination of compensation, it is always open for the petitioner to avail remedy under Section 64 of the 2013 Act. Without availing such remedy under guise of contempt, petitioner is trying to enlarge the scope of directions issued by this Court. 7. In the order dated 17.08.2015 passed by this Court in Civil Appeal Nos.10394-10396 of 2011, while quashing the acquisition proceedings on the ground that proceedings were lapsed, as the award was not passed within the prescribed period in the Act, respondent-State was directed to initiate fresh acquisition proceedings or to take any other action available under law. Consequent to abovesaid order dated 17.08.2015 respondents have issued fresh notification on 14.11.2015, thereafter in the order dated 10.02.2020, this Court has noted the submission of the State that even the said notification dated 14.11.2015 also lapsed as no award was passed, as such fresh notification was issued thereafter on 14.02.2020. Pursuant to notification issued under Section 11 of the 2013 Act on 14.02.2020, award inquiry was conducted. Petitioner has filed its claim petition in the award inquiry on 08.06.2020. 8. In view of the order dated 10.02.2020 passed by this Court and the fresh notification dated 14.02.2020 and the award dated 12.11.2020, it cannot be said that respondents have violated the directions issued by this Court in the order dated 17.08.2015. Aggrieved by the order dated 17.08.2015, when the review petition was dismissed, curative petition was filed and the same is pending. With regard to submission of Dr. Singhvi, learned senior counsel, that the respondents have not granted the benefits as per Section 40 of the 2013 Act, it is to be noted that subsequent in the latest notification issued under Section 11 of the 2013 Act respondents have not invoked urgency clause at all. When the notification was issued under Section 11 of the 2013 Act, without invoking urgency clause, the question of extending the benefits as per Section 40 of the 2013 Act will not arise. In the judgment in the case of J.S. Parihar v. Ganpat Duggar & Ors.(1996) 6 SCC 291 , relied on by learned senior counsel Sri Ranjit Kumar, appearing for the respondents, it is observed by this Court that once there is an order passed by the Government on the basis of directions issued by this Court, there arises a fresh cause of action to seek redressal in an appropriate forum. Further in the judgment of the Court in the case of Delhi Development Authority v. Mahender Singh & Anr. (2009) 5 SCC 339 this Court has observed that the Land Acquisition Act is a complete code by itself and lays down detailed procedure for acquisition of land, payment of compensation and common law principles of justice, equity and good conscience cannot be extended contrary to provisions of the Statute. In the judgment in the case of R.N. Dey & Ors. v. Bhagyabati Pramanik & Ors. (2000) 4 SCC 400 this Court has held that a decree obtained under Land Acquisition Act, is an executable decree and no contempt can be maintained for noncompliance of such decree. In the same judgment it is observed that weapon of contempt is not to be used in abundance or misused. It is further observed that discretion given to the court in dealing with the proceedings under Contempt of Courts Act is to be exercised for maintenance of courts dignity and majesty of law and further an aggrieved party has no right to insist that court should exercise such jurisdiction, inasmuch as contempt is between contemner and the court. 9. In view of the last notification issued under Section 11 of the 2013 Act on 14.02.2020 and the award passed by the respondent-authorities, it cannot be said that respondents have deliberately and intentionally violated any directions issued by this Court, attracting the provisions of Contempt of Courts Act, 1971. Though detailed submissions were advanced by the learned senior counsel appearing for the petitioner stating that land was wrongly categorized in the award for fixation of market value, while it is open to the petitioner to avail the remedies available in the Act for proper determination of compensation but at the same time it cannot be said that respondents have violated directions issued by this Court. Section 64 of the 2013 Act, makes it clear that any person interested, who has not accepted the award, by written application to the Collector may seek reference to the competent authority constituted under Section 66 of the 2013 Act. Even after adjudication made by such authority on reference, there is a further remedy available under Section 74 to the High Court. In that view of the matter while it is open for the petitioner to pursue remedies available in law, we do not find any contempt as alleged by the respondents. | 0[ds]8. In view of the order dated 10.02.2020 passed by this Court and the fresh notification dated 14.02.2020 and the award dated 12.11.2020, it cannot be said that respondents have violated the directions issued by this Court in the order dated 17.08.2015. Aggrieved by the order dated 17.08.2015, when the review petition was dismissed, curative petition was filed and the same is pending. With regard to submission of Dr. Singhvi, learned senior counsel, that the respondents have not granted the benefits as per Section 40 of the 2013 Act, it is to be noted that subsequent in the latest notification issued under Section 11 of the 2013 Act respondents have not invoked urgency clause at all. When the notification was issued under Section 11 of the 2013 Act, without invoking urgency clause, the question of extending the benefits as per Section 40 of the 2013 Act will not arise. In the judgment in the case of J.S. Parihar v. Ganpat Duggar & Ors.(1996) 6 SCC 291 , relied on by learned senior counsel Sri Ranjit Kumar, appearing for the respondents, it is observed by this Court that once there is an order passed by the Government on the basis of directions issued by this Court, there arises a fresh cause of action to seek redressal in an appropriate forum. Further in the judgment of the Court in the case of Delhi Development Authority v. Mahender Singh & Anr. (2009) 5 SCC 339 this Court has observed that the Land Acquisition Act is a complete code by itself and lays down detailed procedure for acquisition of land, payment of compensation and common law principles of justice, equity and good conscience cannot be extended contrary to provisions of the Statute. In the judgment in the case of R.N. Dey & Ors. v. Bhagyabati Pramanik & Ors. (2000) 4 SCC 400 this Court has held that a decree obtained under Land Acquisition Act, is an executable decree and no contempt can be maintained for noncompliance of such decree. In the same judgment it is observed that weapon of contempt is not to be used in abundance or misused. It is further observed that discretion given to the court in dealing with the proceedings under Contempt of Courts Act is to be exercised for maintenance of courts dignity and majesty of law and further an aggrieved party has no right to insist that court should exercise such jurisdiction, inasmuch as contempt is between contemner and the court.9. In view of the last notification issued under Section 11 of the 2013 Act on 14.02.2020 and the award passed by the respondent-authorities, it cannot be said that respondents have deliberately and intentionally violated any directions issued by this Court, attracting the provisions of Contempt of Courts Act, 1971. Though detailed submissions were advanced by the learned senior counsel appearing for the petitioner stating that land was wrongly categorized in the award for fixation of market value, while it is open to the petitioner to avail the remedies available in the Act for proper determination of compensation but at the same time it cannot be said that respondents have violated directions issued by this Court. Section 64 of the 2013 Act, makes it clear that any person interested, who has not accepted the award, by written application to the Collector may seek reference to the competent authority constituted under Section 66 of the 2013 Act. Even after adjudication made by such authority on reference, there is a further remedy available under Section 74 to the High Court. In that view of the matter while it is open for the petitioner to pursue remedies available in law, we do not find any contempt as alleged by the respondents. | 0 | 2,079 | 680 | ### 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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applications were also dismissed vide order dated 05.01.2017 and benefits were not granted as per Section 40 of the 2013 Act. 6. Counter affidavit is filed on behalf of the respondents. While denying various allegations made by the petitioner, it is the case of the respondents that in compliance of the directions issued by this Court in the order dated 17.08.2015 a fresh notification was issued which was also declared as lapsed by this Court in the order dated 10.02.2020 by recording the statement made on behalf of the State that a fresh notification would be issued. In the said order this Court has clarified that the court has not expressed any opinion on the nature of the land etc. and left open all the issues. It is stated that in view of the order dated 10.02.2020, a fresh notification was issued on 14.02.2020 under Section 11 of the 2013 Act and after following the necessary procedure award was passed on 12.11.2020. As such there was no violation of any directions issued by the Court much less any wilful violation as alleged by the petitioner. It is the case of the respondents that if the petitioner is aggrieved by the determination of compensation, it is always open for the petitioner to avail remedy under Section 64 of the 2013 Act. Without availing such remedy under guise of contempt, petitioner is trying to enlarge the scope of directions issued by this Court. 7. In the order dated 17.08.2015 passed by this Court in Civil Appeal Nos.10394-10396 of 2011, while quashing the acquisition proceedings on the ground that proceedings were lapsed, as the award was not passed within the prescribed period in the Act, respondent-State was directed to initiate fresh acquisition proceedings or to take any other action available under law. Consequent to abovesaid order dated 17.08.2015 respondents have issued fresh notification on 14.11.2015, thereafter in the order dated 10.02.2020, this Court has noted the submission of the State that even the said notification dated 14.11.2015 also lapsed as no award was passed, as such fresh notification was issued thereafter on 14.02.2020. Pursuant to notification issued under Section 11 of the 2013 Act on 14.02.2020, award inquiry was conducted. Petitioner has filed its claim petition in the award inquiry on 08.06.2020. 8. In view of the order dated 10.02.2020 passed by this Court and the fresh notification dated 14.02.2020 and the award dated 12.11.2020, it cannot be said that respondents have violated the directions issued by this Court in the order dated 17.08.2015. Aggrieved by the order dated 17.08.2015, when the review petition was dismissed, curative petition was filed and the same is pending. With regard to submission of Dr. Singhvi, learned senior counsel, that the respondents have not granted the benefits as per Section 40 of the 2013 Act, it is to be noted that subsequent in the latest notification issued under Section 11 of the 2013 Act respondents have not invoked urgency clause at all. When the notification was issued under Section 11 of the 2013 Act, without invoking urgency clause, the question of extending the benefits as per Section 40 of the 2013 Act will not arise. In the judgment in the case of J.S. Parihar v. Ganpat Duggar & Ors.(1996) 6 SCC 291 , relied on by learned senior counsel Sri Ranjit Kumar, appearing for the respondents, it is observed by this Court that once there is an order passed by the Government on the basis of directions issued by this Court, there arises a fresh cause of action to seek redressal in an appropriate forum. Further in the judgment of the Court in the case of Delhi Development Authority v. Mahender Singh & Anr. (2009) 5 SCC 339 this Court has observed that the Land Acquisition Act is a complete code by itself and lays down detailed procedure for acquisition of land, payment of compensation and common law principles of justice, equity and good conscience cannot be extended contrary to provisions of the Statute. In the judgment in the case of R.N. Dey & Ors. v. Bhagyabati Pramanik & Ors. (2000) 4 SCC 400 this Court has held that a decree obtained under Land Acquisition Act, is an executable decree and no contempt can be maintained for noncompliance of such decree. In the same judgment it is observed that weapon of contempt is not to be used in abundance or misused. It is further observed that discretion given to the court in dealing with the proceedings under Contempt of Courts Act is to be exercised for maintenance of courts dignity and majesty of law and further an aggrieved party has no right to insist that court should exercise such jurisdiction, inasmuch as contempt is between contemner and the court. 9. In view of the last notification issued under Section 11 of the 2013 Act on 14.02.2020 and the award passed by the respondent-authorities, it cannot be said that respondents have deliberately and intentionally violated any directions issued by this Court, attracting the provisions of Contempt of Courts Act, 1971. Though detailed submissions were advanced by the learned senior counsel appearing for the petitioner stating that land was wrongly categorized in the award for fixation of market value, while it is open to the petitioner to avail the remedies available in the Act for proper determination of compensation but at the same time it cannot be said that respondents have violated directions issued by this Court. Section 64 of the 2013 Act, makes it clear that any person interested, who has not accepted the award, by written application to the Collector may seek reference to the competent authority constituted under Section 66 of the 2013 Act. Even after adjudication made by such authority on reference, there is a further remedy available under Section 74 to the High Court. In that view of the matter while it is open for the petitioner to pursue remedies available in law, we do not find any contempt as alleged by the respondents.
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8. In view of the order dated 10.02.2020 passed by this Court and the fresh notification dated 14.02.2020 and the award dated 12.11.2020, it cannot be said that respondents have violated the directions issued by this Court in the order dated 17.08.2015. Aggrieved by the order dated 17.08.2015, when the review petition was dismissed, curative petition was filed and the same is pending. With regard to submission of Dr. Singhvi, learned senior counsel, that the respondents have not granted the benefits as per Section 40 of the 2013 Act, it is to be noted that subsequent in the latest notification issued under Section 11 of the 2013 Act respondents have not invoked urgency clause at all. When the notification was issued under Section 11 of the 2013 Act, without invoking urgency clause, the question of extending the benefits as per Section 40 of the 2013 Act will not arise. In the judgment in the case of J.S. Parihar v. Ganpat Duggar & Ors.(1996) 6 SCC 291 , relied on by learned senior counsel Sri Ranjit Kumar, appearing for the respondents, it is observed by this Court that once there is an order passed by the Government on the basis of directions issued by this Court, there arises a fresh cause of action to seek redressal in an appropriate forum. Further in the judgment of the Court in the case of Delhi Development Authority v. Mahender Singh & Anr. (2009) 5 SCC 339 this Court has observed that the Land Acquisition Act is a complete code by itself and lays down detailed procedure for acquisition of land, payment of compensation and common law principles of justice, equity and good conscience cannot be extended contrary to provisions of the Statute. In the judgment in the case of R.N. Dey & Ors. v. Bhagyabati Pramanik & Ors. (2000) 4 SCC 400 this Court has held that a decree obtained under Land Acquisition Act, is an executable decree and no contempt can be maintained for noncompliance of such decree. In the same judgment it is observed that weapon of contempt is not to be used in abundance or misused. It is further observed that discretion given to the court in dealing with the proceedings under Contempt of Courts Act is to be exercised for maintenance of courts dignity and majesty of law and further an aggrieved party has no right to insist that court should exercise such jurisdiction, inasmuch as contempt is between contemner and the court.9. In view of the last notification issued under Section 11 of the 2013 Act on 14.02.2020 and the award passed by the respondent-authorities, it cannot be said that respondents have deliberately and intentionally violated any directions issued by this Court, attracting the provisions of Contempt of Courts Act, 1971. Though detailed submissions were advanced by the learned senior counsel appearing for the petitioner stating that land was wrongly categorized in the award for fixation of market value, while it is open to the petitioner to avail the remedies available in the Act for proper determination of compensation but at the same time it cannot be said that respondents have violated directions issued by this Court. Section 64 of the 2013 Act, makes it clear that any person interested, who has not accepted the award, by written application to the Collector may seek reference to the competent authority constituted under Section 66 of the 2013 Act. Even after adjudication made by such authority on reference, there is a further remedy available under Section 74 to the High Court. In that view of the matter while it is open for the petitioner to pursue remedies available in law, we do not find any contempt as alleged by the respondents.
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Punjab & Sind Bank Vs. Vinkar Sahakari Bank Ltd. | as bills of exchange as defined in Section 3 of the Bills of Exchange Act, although a holder may sue the bank upon them, and treat them either as bills of exchange or as promissory notes." 14. The said observation was followed by a Division Bench of the Patna High Court in Bibi Kazmi Begum v. Lachman Lal Sao and ors., AIR 1930 Patna 239. In that case, the trial Court took the view that when the drawer and the drawee are the same person the instrument drawn would not become a Bill of Exchange. The Patna High Court held that even though such an instrument might not become a bill of exchange between the drawer and the drawee when both were the same person "it is well established that the holder of the instrument may treat it as a bill of exchange." 15. Later, a Division Bench of the Calcutta High Court in Birbhum Central Co-operative Bank Ltd. v. Pioneer Bank Ltd., AIR 1956 Calcutta 615, even without reference to the aforementioned observations, adopted the same view. Chakravartti, C.J., speaking for the Division Bench has stated thus : "It is well settled that a bankers draft is a bill of exchange and as such it is a negotiable instrument. The issue of a draft is regarded in banking practice as a matter of purchase and ordinarily the relationship between the holder of a Demand Draft and the bank issuing it is that of debtor and creditor. The holder of the draft is a creditor and his remedy is on the draft." 16. In the matter of the Palai Central Bank Ltd., AIR 1962 Kerala 210, P.T. Raman Nayar, J. (as the learned Chief Justice then was) made a survey of the relevant provisions and the case law and then made the following observations : "However that might be, there is no denying that a demand draft is nothing more or less than a negotiable instrument governed by the provisions of the Negotiable Instruments Act; and on the face of it, the obligations it creates are nothing more than ordinary debts." 17. We are of the opinion that the High Courts have taken the correct view in the above decisions. However, Mr. Shekhar Naphde, learned senior counsel for the respondents, invited our attention to the decision of a single Judge of the Bombay High Court in Maturi Sanyasilingam v. The Exchange Bank of India and Africa Ltd., AIR 1946 Bombay 1, wherein it was held that the demand draft issued by the branch of a bank to its head office or vice-versa is not a cheque nor a bill of exchange. But learned Single Judge expressed the opinion that a demand draft may be a bill of exchange if it is issued by one bank drawn on another. The said observation was made in the wake of the contention that the collecting bank could claim protection under Section 131 of the Act. The said decision of the Bombay High Court cannot hold good because the Negotiable Instruments Act was amended by incorporating Section 131A in the said Act. 18. That apart, learned Single Judge while relying on the decisions of the House of Lords in Capital and Counties Bank v. Gordon (supra), restricted himself to the former limb of the observation therein. It is in the latter limb that the House of Lords said that when the draft is in possession of a holder the instrument can be treated as bill of exchange. 19. We therefore dissent from the view adopted by the learned Single Judge in the impugned judgment that the pay order is not a cheque. 20. The second premise of the learned Single Judge that since the pay order was a crossed instrument the complainant-Bank could have only collected the amount and remitted the proceeds to the account of the payee. The said view could not be supported by the learned counsel for the respondents. Hence it is unnecessary for us to dwell into that. 21. The third ground for quashing the complaint is that the complainant was not "a holder in due course" in the absence of an endorsement made on the instrument in the manner prescribed under Section 50 of the Act. This ground was adopted by the learned Single Judge without regard to certain relevant provisions of the Act. 22. Section 142 of the Act envisages a complaint to be made in writing "either by the payee or the holder in due course of the cheque, as the case may be". Section 8 of the Act defines "holder" as any person entitled in his own name to the possession of the cheque and to receive or recover the amount due thereon from the parties thereto. We have no doubt that complainant-Bank was well within its right to possess the cheque and to receive or recover the amount covered by the instrument. "Holder in due course" means a person who for consideration became the possessor of a cheque if payable to bearer before the amount became payable. (Vide Section 9). 23. In this context reference has to be made to Section 118(g) of the Act which contains a mandate that until the contrary is proved the holder of a negotiable instrument shall be presumed to be a holder in due course. Thus there is no escape for the court from drawing such presumption. 24. It is undisputed that the complainant-company is the holder of the instrument on its own right. As such it could be a holder in due course also until the concerned party adduce evidence to rebut the presumption. It is of course open to the respondents to rebut the presumption in the trial but till the High Court could not say that the complainant is not a holder in due course at all. 25. For the aforesaid reasons we allow this appeal and set aside the impugned judgment. The trial shall now proceed to reach the final judgment without any more delay. | 1[ds]17. We are of the opinion that the High Courts have taken the correct view in the above decisions. However, Mr. Shekhar Naphde, learned senior counsel for the respondents, invited our attention to the decision of a single Judge of the Bombay High Court in Maturi Sanyasilingam v. The Exchange Bank of India and Africa Ltd., AIR 1946 Bombay 1, wherein it was held that the demand draft issued by the branch of a bank to its head office or vice-versa is not a cheque nor a bill of exchange. But learned Single Judge expressed the opinion that a demand draft may be a bill of exchange if it is issued by one bank drawn on another. The said observation was made in the wake of the contention that the collecting bank could claim protection under Section 131 of the Act. The said decision of the Bombay High Court cannot hold good because the Negotiable Instruments Act was amended by incorporating Section 131A in the said Act.That apart, learned Single Judge while relying on the decisions of the House of Lords in Capital and Counties Bank v. Gordon (supra), restricted himself to the former limb of the observation therein. It is in the latter limb that the House of Lords said that when the draft is in possession of a holder the instrument can be treated as bill of exchange.We therefore dissent from the view adopted by the learned Single Judge in the impugned judgment that the pay order is not a cheque.The second premise of the learned Single Judge that since the pay order was a crossed instrument the complainant-Bank could have only collected the amount and remitted the proceeds to the account of the payee. The said view could not be supported by the learned counsel for the respondents. Hence it is unnecessary for us to dwell into that.The third ground for quashing the complaint is that the complainant was not "a holder in due course" in the absence of an endorsement made on the instrument in the manner prescribed under Section 50 of the Act. This ground was adopted by the learned Single Judge without regard to certain relevant provisions of the Act.Section 142 of the Act envisages a complaint to be made in writing "either by the payee or the holder in due course of the cheque, as the case may be". Section 8 of the Act defines "holder" as any person entitled in his own name to the possession of the cheque and to receive or recover the amount due thereon from the parties thereto. We have no doubt that complainant-Bank was well within its right to possess the cheque and to receive or recover the amount covered by the instrument. "Holder in due course" means a person who for consideration became the possessor of a cheque if payable to bearer before the amount became payable. (Vide Section 9).In this context reference has to be made to Section 118(g) of the Act which contains a mandate that until the contrary is proved the holder of a negotiable instrument shall be presumed to be a holder in due course. Thus there is no escape for the court from drawing such presumption.It is undisputed that the complainant-company is the holder of the instrument on its own right. As such it could be a holder in due course also until the concerned party adduce evidence to rebut the presumption. It is of course open to the respondents to rebut the presumption in the trial but till the High Court could not say that the complainant is not a holder in due course at all. | 1 | 2,830 | 652 | ### 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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as bills of exchange as defined in Section 3 of the Bills of Exchange Act, although a holder may sue the bank upon them, and treat them either as bills of exchange or as promissory notes." 14. The said observation was followed by a Division Bench of the Patna High Court in Bibi Kazmi Begum v. Lachman Lal Sao and ors., AIR 1930 Patna 239. In that case, the trial Court took the view that when the drawer and the drawee are the same person the instrument drawn would not become a Bill of Exchange. The Patna High Court held that even though such an instrument might not become a bill of exchange between the drawer and the drawee when both were the same person "it is well established that the holder of the instrument may treat it as a bill of exchange." 15. Later, a Division Bench of the Calcutta High Court in Birbhum Central Co-operative Bank Ltd. v. Pioneer Bank Ltd., AIR 1956 Calcutta 615, even without reference to the aforementioned observations, adopted the same view. Chakravartti, C.J., speaking for the Division Bench has stated thus : "It is well settled that a bankers draft is a bill of exchange and as such it is a negotiable instrument. The issue of a draft is regarded in banking practice as a matter of purchase and ordinarily the relationship between the holder of a Demand Draft and the bank issuing it is that of debtor and creditor. The holder of the draft is a creditor and his remedy is on the draft." 16. In the matter of the Palai Central Bank Ltd., AIR 1962 Kerala 210, P.T. Raman Nayar, J. (as the learned Chief Justice then was) made a survey of the relevant provisions and the case law and then made the following observations : "However that might be, there is no denying that a demand draft is nothing more or less than a negotiable instrument governed by the provisions of the Negotiable Instruments Act; and on the face of it, the obligations it creates are nothing more than ordinary debts." 17. We are of the opinion that the High Courts have taken the correct view in the above decisions. However, Mr. Shekhar Naphde, learned senior counsel for the respondents, invited our attention to the decision of a single Judge of the Bombay High Court in Maturi Sanyasilingam v. The Exchange Bank of India and Africa Ltd., AIR 1946 Bombay 1, wherein it was held that the demand draft issued by the branch of a bank to its head office or vice-versa is not a cheque nor a bill of exchange. But learned Single Judge expressed the opinion that a demand draft may be a bill of exchange if it is issued by one bank drawn on another. The said observation was made in the wake of the contention that the collecting bank could claim protection under Section 131 of the Act. The said decision of the Bombay High Court cannot hold good because the Negotiable Instruments Act was amended by incorporating Section 131A in the said Act. 18. That apart, learned Single Judge while relying on the decisions of the House of Lords in Capital and Counties Bank v. Gordon (supra), restricted himself to the former limb of the observation therein. It is in the latter limb that the House of Lords said that when the draft is in possession of a holder the instrument can be treated as bill of exchange. 19. We therefore dissent from the view adopted by the learned Single Judge in the impugned judgment that the pay order is not a cheque. 20. The second premise of the learned Single Judge that since the pay order was a crossed instrument the complainant-Bank could have only collected the amount and remitted the proceeds to the account of the payee. The said view could not be supported by the learned counsel for the respondents. Hence it is unnecessary for us to dwell into that. 21. The third ground for quashing the complaint is that the complainant was not "a holder in due course" in the absence of an endorsement made on the instrument in the manner prescribed under Section 50 of the Act. This ground was adopted by the learned Single Judge without regard to certain relevant provisions of the Act. 22. Section 142 of the Act envisages a complaint to be made in writing "either by the payee or the holder in due course of the cheque, as the case may be". Section 8 of the Act defines "holder" as any person entitled in his own name to the possession of the cheque and to receive or recover the amount due thereon from the parties thereto. We have no doubt that complainant-Bank was well within its right to possess the cheque and to receive or recover the amount covered by the instrument. "Holder in due course" means a person who for consideration became the possessor of a cheque if payable to bearer before the amount became payable. (Vide Section 9). 23. In this context reference has to be made to Section 118(g) of the Act which contains a mandate that until the contrary is proved the holder of a negotiable instrument shall be presumed to be a holder in due course. Thus there is no escape for the court from drawing such presumption. 24. It is undisputed that the complainant-company is the holder of the instrument on its own right. As such it could be a holder in due course also until the concerned party adduce evidence to rebut the presumption. It is of course open to the respondents to rebut the presumption in the trial but till the High Court could not say that the complainant is not a holder in due course at all. 25. For the aforesaid reasons we allow this appeal and set aside the impugned judgment. The trial shall now proceed to reach the final judgment without any more delay.
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17. We are of the opinion that the High Courts have taken the correct view in the above decisions. However, Mr. Shekhar Naphde, learned senior counsel for the respondents, invited our attention to the decision of a single Judge of the Bombay High Court in Maturi Sanyasilingam v. The Exchange Bank of India and Africa Ltd., AIR 1946 Bombay 1, wherein it was held that the demand draft issued by the branch of a bank to its head office or vice-versa is not a cheque nor a bill of exchange. But learned Single Judge expressed the opinion that a demand draft may be a bill of exchange if it is issued by one bank drawn on another. The said observation was made in the wake of the contention that the collecting bank could claim protection under Section 131 of the Act. The said decision of the Bombay High Court cannot hold good because the Negotiable Instruments Act was amended by incorporating Section 131A in the said Act.That apart, learned Single Judge while relying on the decisions of the House of Lords in Capital and Counties Bank v. Gordon (supra), restricted himself to the former limb of the observation therein. It is in the latter limb that the House of Lords said that when the draft is in possession of a holder the instrument can be treated as bill of exchange.We therefore dissent from the view adopted by the learned Single Judge in the impugned judgment that the pay order is not a cheque.The second premise of the learned Single Judge that since the pay order was a crossed instrument the complainant-Bank could have only collected the amount and remitted the proceeds to the account of the payee. The said view could not be supported by the learned counsel for the respondents. Hence it is unnecessary for us to dwell into that.The third ground for quashing the complaint is that the complainant was not "a holder in due course" in the absence of an endorsement made on the instrument in the manner prescribed under Section 50 of the Act. This ground was adopted by the learned Single Judge without regard to certain relevant provisions of the Act.Section 142 of the Act envisages a complaint to be made in writing "either by the payee or the holder in due course of the cheque, as the case may be". Section 8 of the Act defines "holder" as any person entitled in his own name to the possession of the cheque and to receive or recover the amount due thereon from the parties thereto. We have no doubt that complainant-Bank was well within its right to possess the cheque and to receive or recover the amount covered by the instrument. "Holder in due course" means a person who for consideration became the possessor of a cheque if payable to bearer before the amount became payable. (Vide Section 9).In this context reference has to be made to Section 118(g) of the Act which contains a mandate that until the contrary is proved the holder of a negotiable instrument shall be presumed to be a holder in due course. Thus there is no escape for the court from drawing such presumption.It is undisputed that the complainant-company is the holder of the instrument on its own right. As such it could be a holder in due course also until the concerned party adduce evidence to rebut the presumption. It is of course open to the respondents to rebut the presumption in the trial but till the High Court could not say that the complainant is not a holder in due course at all.
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United India Insurance Company Limited Vs. Nirmala Babulal Khairajani | of search through Court Chobdar. However, Advocate Miss. Mamta Warma appeared and prayed for adjournment when we had made it clear to her that we are not inclined to grant adjournment. Consequently, none appeared for the appellants in first appeal No. 60/2003 and the same is required to be and is being dismissed in default.( 5 ) SO far as first appeal No. 248/2000 is concerned, it is not in dispute that owner and driver of the goods truck, which was insured with appellant insurance company namely M/s United India Insurance Company Ltd. , had remained ex-parte. In other words, inspite of service, they had not contested the claims. On our enquiry, Advocate shri Upadhye, in all fairness, has conceded that no application under section 170 of motor Vehicles Act, 1988, was preferred by his insurance company before the trial Court seeking permission to contest the petition with all defences available also to the owner in view of non-appearance of owner and driver. Our attention is drawn by Advocate shri Darak, who represents the other vehicle, to judgment of the Supreme Court in the matter of (National Insurance Company Ltd. Vs Nicolletta Rohtagi), A.. R. 2002 S. C. W. 3899 and more particularly contents from paras 25, 31 and 32. For the convenient reference, although the learned Counsel have taken us through major portion of the reported judgment, we are reproducing only part from the first head note, which suggests against the maintainability of present appeal filed by insurance company: "even if no appeal is preferred under section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as finding as regards negligence or contributory negligence of the offending vehicle unless the conditions precedent specified in section 170 of 1988 Act is satisfied. "( 6 ) WE have gone through the written statement that is filed by appellant insurance company before the Tribunal. In paras 1 to 19, it has denied all the contentions raised by the claimants in the petition, para by para. Paras 20 to 25 are captioned as additional statement and, thus, separated from other part of written statement, which constitutes mainly the denials. On going through entire written statement, we have not been able to find any defence raised by the insurance company, which would attract section 149 (2) of the Motor Vehicles Act. Only a passing reference to such defence is available in para 25 wherein insurance company has stated that the truck driver was not holding driving licence. On going through the impugned judgment, there does not appear any attempt on the part of insurance company to prove such a contention. ( 7 ) TAKING into consideration the ratio laid down by the Supreme Court, insurance company could not have contested the claim before the Tribunal on all the defences available to the owner such as contributory negligence or quantum of the compensation awardable. Since there is no prayer in the written statement, even by suggestive sentences that in view of absence of owner and driver inspite of service, insurance company may be allowed to raise all the defences, it can not presumed even by implications that appellant insurance company is granted permission to raise all the defences as required by section 170. In fact, as can be seen from the text of section 170 and the ratio laid down by the Supreme Court, the Tribunal is required to record a reasoned order before allowing the insurance company to raise all the defences beyond the scope of section 149 (2) of M. V. Act, 1988, as are available to the owner and driver of the vehicle. This is a case wherein present insurance company could not have been allowed to raise any other defences except the one regarding the driver of the truck not holding driving licence, which was raised in the concluding sentence in the written statement. Consequently, appeal, if any, by the insurance company could have been only on this ground. Advocate Shri upadhye has tried to meet the argument raised by Advocate Shri Darak against the maintainability of the appeal by referring to division Bench judgment of Bombay High court reported at (Oriented Fire and General Insurance Company Ltd. Vs. Rajrani surendrakumar Sharma and others), 1989 (3) bom. C. R. 326 : 1990 A. C. J. 60. He has relied upon contents in para 9, which read thus:"therefore, if the person against whom the claim is made has failed to contest the claim, the insurer gets a right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. Section 110-C (2-A) provides that in such a case if the insurer is not a party, the court may, for reasons to be recorded by it in writing, direct that the insurer who may be made liable in respect of such a claim shall be impleaded as a party. The insurer so impleaded thereupon gets the right to contest the claim on all grounds available to the person against whom the claim is made. "( 8 ) WE are afraid, the Division Bench view of Bombay High Court can not be sustained or followed in the light of ratio laid down by the Supreme Court. The Supreme Court has mandated that in order that the insurance company may contest the claim on all grounds available to the owner, must satisfy the requirements of section 170 of the Motor vehicles Act, 1988. In the matter at hands, although owner and driver had not contested the claim and, thus, Clause (b) of section 170 was satisfied, the insurance company had raised one technical defence and although they had raised other defences in the written statement, those were raised without permission from the Tribunal by an application under section 170, for the reasons to be recorded in writing by the Tribunal. | 0[ds]( 8 ) WE are afraid, the Division Bench view of Bombay High Court can not be sustained or followed in the light of ratio laid down by the Supreme Court. The Supreme Court has mandated that in order that the insurance company may contest the claim on all grounds available to the owner, must satisfy the requirements of section 170 of the Motor vehicles Act, 1988. In the matter at hands, although owner and driver had not contested the claim and, thus, Clause (b) of section 170 was satisfied, the insurance company had raised one technical defence and although they had raised other defences in the written statement, those were raised without permission from the Tribunal by an application under section 170, for the reasons to be recorded in writing by the Tribunal. | 0 | 1,522 | 152 | ### Instruction:
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of search through Court Chobdar. However, Advocate Miss. Mamta Warma appeared and prayed for adjournment when we had made it clear to her that we are not inclined to grant adjournment. Consequently, none appeared for the appellants in first appeal No. 60/2003 and the same is required to be and is being dismissed in default.( 5 ) SO far as first appeal No. 248/2000 is concerned, it is not in dispute that owner and driver of the goods truck, which was insured with appellant insurance company namely M/s United India Insurance Company Ltd. , had remained ex-parte. In other words, inspite of service, they had not contested the claims. On our enquiry, Advocate shri Upadhye, in all fairness, has conceded that no application under section 170 of motor Vehicles Act, 1988, was preferred by his insurance company before the trial Court seeking permission to contest the petition with all defences available also to the owner in view of non-appearance of owner and driver. Our attention is drawn by Advocate shri Darak, who represents the other vehicle, to judgment of the Supreme Court in the matter of (National Insurance Company Ltd. Vs Nicolletta Rohtagi), A.. R. 2002 S. C. W. 3899 and more particularly contents from paras 25, 31 and 32. For the convenient reference, although the learned Counsel have taken us through major portion of the reported judgment, we are reproducing only part from the first head note, which suggests against the maintainability of present appeal filed by insurance company: "even if no appeal is preferred under section 173 of 1988 Act by an insured against the award of a Tribunal, it is not permissible for an insurer to file an appeal questioning the quantum of compensation as well as finding as regards negligence or contributory negligence of the offending vehicle unless the conditions precedent specified in section 170 of 1988 Act is satisfied. "( 6 ) WE have gone through the written statement that is filed by appellant insurance company before the Tribunal. In paras 1 to 19, it has denied all the contentions raised by the claimants in the petition, para by para. Paras 20 to 25 are captioned as additional statement and, thus, separated from other part of written statement, which constitutes mainly the denials. On going through entire written statement, we have not been able to find any defence raised by the insurance company, which would attract section 149 (2) of the Motor Vehicles Act. Only a passing reference to such defence is available in para 25 wherein insurance company has stated that the truck driver was not holding driving licence. On going through the impugned judgment, there does not appear any attempt on the part of insurance company to prove such a contention. ( 7 ) TAKING into consideration the ratio laid down by the Supreme Court, insurance company could not have contested the claim before the Tribunal on all the defences available to the owner such as contributory negligence or quantum of the compensation awardable. Since there is no prayer in the written statement, even by suggestive sentences that in view of absence of owner and driver inspite of service, insurance company may be allowed to raise all the defences, it can not presumed even by implications that appellant insurance company is granted permission to raise all the defences as required by section 170. In fact, as can be seen from the text of section 170 and the ratio laid down by the Supreme Court, the Tribunal is required to record a reasoned order before allowing the insurance company to raise all the defences beyond the scope of section 149 (2) of M. V. Act, 1988, as are available to the owner and driver of the vehicle. This is a case wherein present insurance company could not have been allowed to raise any other defences except the one regarding the driver of the truck not holding driving licence, which was raised in the concluding sentence in the written statement. Consequently, appeal, if any, by the insurance company could have been only on this ground. Advocate Shri upadhye has tried to meet the argument raised by Advocate Shri Darak against the maintainability of the appeal by referring to division Bench judgment of Bombay High court reported at (Oriented Fire and General Insurance Company Ltd. Vs. Rajrani surendrakumar Sharma and others), 1989 (3) bom. C. R. 326 : 1990 A. C. J. 60. He has relied upon contents in para 9, which read thus:"therefore, if the person against whom the claim is made has failed to contest the claim, the insurer gets a right to contest the claim on all or any of the grounds that are available to the person against whom the claim has been made. Section 110-C (2-A) provides that in such a case if the insurer is not a party, the court may, for reasons to be recorded by it in writing, direct that the insurer who may be made liable in respect of such a claim shall be impleaded as a party. The insurer so impleaded thereupon gets the right to contest the claim on all grounds available to the person against whom the claim is made. "( 8 ) WE are afraid, the Division Bench view of Bombay High Court can not be sustained or followed in the light of ratio laid down by the Supreme Court. The Supreme Court has mandated that in order that the insurance company may contest the claim on all grounds available to the owner, must satisfy the requirements of section 170 of the Motor vehicles Act, 1988. In the matter at hands, although owner and driver had not contested the claim and, thus, Clause (b) of section 170 was satisfied, the insurance company had raised one technical defence and although they had raised other defences in the written statement, those were raised without permission from the Tribunal by an application under section 170, for the reasons to be recorded in writing by the Tribunal.
### Response:
0
### Explanation:
( 8 ) WE are afraid, the Division Bench view of Bombay High Court can not be sustained or followed in the light of ratio laid down by the Supreme Court. The Supreme Court has mandated that in order that the insurance company may contest the claim on all grounds available to the owner, must satisfy the requirements of section 170 of the Motor vehicles Act, 1988. In the matter at hands, although owner and driver had not contested the claim and, thus, Clause (b) of section 170 was satisfied, the insurance company had raised one technical defence and although they had raised other defences in the written statement, those were raised without permission from the Tribunal by an application under section 170, for the reasons to be recorded in writing by the Tribunal.
|
Royal Medical Trust Vs. Union Of India | decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."45. In the said case, the Court also referred to R. v. Panel on Take-overs and Mergers, ex. P. Datafin plc, (1987) 1 All ER 564 wherein Sir John Donaldson, M.R. commented:-"An application for judicial review is not an appeal."46. The three Judge Bench further held:-"The duty of the court is to confine itself to the question of legality. Its concern should be:1. Whether a decision-making authority exceeded its powers?2. Committed an error of law,3. committed a breach of the rules of natural justice,4. reached a decision which no reasonable tribunal would have reached or,5. abused its powers."47. The Court further opined that in the process of judicial review, it is only concerned with the manner in which the decisions have been taken. The extent of the duty is to act fairly. It will vary from case to case. Explicating further, it ruled:-"Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.(ii) Irrationality, namely, Wednesbury unreasonableness.(iii) Procedural impropriety.The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".48. Thereafter, the Court referred to the authorities in R. v. Askew, (1768) 4 Burr 2186 : 98 ER 139 and Council of Civil Service Unions v. Minister for Civil Service, (1985) 1 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174 and further expressed:-"At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted: "4. Wednesbury principle.- A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., per Lord Greene, M.R.)"We may hasten to add, though the decision was rendered in the context of justification of grant of contract but the principles set out as regards the judicial review are of extreme significance.49. Discussing at length, the principle of judicial review in many a decision, the two Judge Bench in Reliance Telecom Ltd. & Another v. Union of India & Another, (2017) 4 SCC 269 , has held:-"As we find, the decision taken by the Central Government is based upon certain norms and parameters. Though criticism has been advanced that it is perverse and irrational, yet we are disposed to think that it is a policy decision which subserves the consumers interest. It is extremely difficult to say that the decision to conduct the auction in such a manner can be considered to be mala fide or based on extraneous considerations."50. Thus analysed, it is evincible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-appreciation of the materials brought on record which is the duty of the appellate court is not permissible.51. The duty of the Court in exercise of the power of judicial review to zealously guard the human rights, fundamental rights and the citizens right of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds. (See : Union of India and Anr. v S.B. Vohra, 2004(1) S.C.T 788 : (2004) 2 SCC 150)52. What Dr. Dhawan submits basically is that as the order passed by the Central Government after the order passed by the High Court of Kerala does not really reflect any reason, this Court should axe the same treating it as arbitrary and grant the LOP and that would be within the power of judicial review. The order passed by the Central Government has to be appreciated in its entirety. We repeat at the cost of repetition that neither the Central Government nor the Hearing Committee is expected to pass a judgment as a Judge is expected to do. The order must reflect application of mind and should indicate reasons. We may reiterate that the order dated 31st May, 2017, was bereft of reason, but the order impugned, that is the order dated 14th August, 2017, cannot be said to be sans reason. Learned senior counsel would contend with all the vigour at his command that it is not a reasoned one and for the same our attention has been drawn to the penultimate paragraph of the order.53. We are of the considered opinion that the order of the present nature has to be appreciated in entirety and when we peruse the entire order, we find that substantial reasons have been ascribed and, therefore, we are compelled to repel the submissions so assiduously and astutely advanced by Dr. Dhawan. | 1[ds]33. Thus, in our considered opinion what has been stated in Royal Medical Trust (supra) and IQ City Foundation (supra) has the precedential value under Article 141 of the Constitution. We have no hesitation in saying that the pronouncement in Kanachur Islamic Education Trust (R) (supra) has to rest on its own facts.The aforesaid decisions speak for themselves and, therefore, reliance on the same by the petitioners is of noare absolutely conscious of the appellate jurisdiction and the jurisdiction this Court is required to exercise while determining the controversy in exercise of power of judicial review under Article 32 of the Constitution. The principle of judicial review by the constitutional courts have been lucidly stated in many an authority of thismay hasten to add, though the decision was rendered in the context of justification of grant of contract but the principles set out as regards the judicial review are of extreme significance.Thus analysed, it is evincible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit byof the materials brought on record which is the duty of the appellate court is not permissible.51. The duty of the Court in exercise of the power of judicial review to zealously guard the human rights, fundamental rights and the citizens right of life and liberty as also manypowers of governmental bodies as regards their control over property and assets of various kinds.t Dr. Dhawan submits basically is that as the order passed by the Central Government after the order passed by the High Court of Kerala does not really reflect any reason, this Court should axe the same treating it as arbitrary and grant the LOP and that would be within the power of judicial review. The order passed by the Central Government has to be appreciated in its entirety. We repeat at the cost of repetition that neither the Central Government nor the Hearing Committee is expected to pass a judgment as a Judge is expected to do. The order must reflect application of mind and should indicate reasons. We may reiterate that the order dated 31st May, 2017, was bereft of reason, but the order impugned, that is the order dated 14th August, 2017, cannot be said to be sans reason. Learned senior counsel would contend with all the vigour at his command that it is not a reasoned one and for the same our attention has been drawn to the penultimate paragraph of the order.We are of the considered opinion that the order of the present nature has to be appreciated in entirety and when we peruse the entire order, we find that substantial reasons have been ascribed and, therefore, we are compelled to repel the submissions so assiduously and astutely advanced by Dr. Dhawan. | 1 | 11,627 | 598 | ### 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:
decision, but with the decision-making process. Unless that restriction on the power of the court is observed, the court will in my view, under the guise of preventing the abuse of power, be itself guilty of usurping power."45. In the said case, the Court also referred to R. v. Panel on Take-overs and Mergers, ex. P. Datafin plc, (1987) 1 All ER 564 wherein Sir John Donaldson, M.R. commented:-"An application for judicial review is not an appeal."46. The three Judge Bench further held:-"The duty of the court is to confine itself to the question of legality. Its concern should be:1. Whether a decision-making authority exceeded its powers?2. Committed an error of law,3. committed a breach of the rules of natural justice,4. reached a decision which no reasonable tribunal would have reached or,5. abused its powers."47. The Court further opined that in the process of judicial review, it is only concerned with the manner in which the decisions have been taken. The extent of the duty is to act fairly. It will vary from case to case. Explicating further, it ruled:-"Shortly put, the grounds upon which an administrative action is subject to control by judicial review can be classified as under:(i) Illegality : This means the decision-maker must understand correctly the law that regulates his decision-making power and must give effect to it.(ii) Irrationality, namely, Wednesbury unreasonableness.(iii) Procedural impropriety.The above are only the broad grounds but it does not rule out addition of further grounds in course of time. As a matter of fact, in R. v. Secretary of State for the Home Department, ex Brind, Lord Diplock refers specifically to one development, namely, the possible recognition of the principle of proportionality. In all these cases the test to be adopted is that the court should, "consider whether something has gone wrong of a nature and degree which requires its intervention".48. Thereafter, the Court referred to the authorities in R. v. Askew, (1768) 4 Burr 2186 : 98 ER 139 and Council of Civil Service Unions v. Minister for Civil Service, (1985) 1 AC 374 : (1984) 3 All ER 935 : (1984) 3 WLR 1174 and further expressed:-"At this stage, The Supreme Court Practice, 1993, Vol. 1, pp. 849-850, may be quoted: "4. Wednesbury principle.- A decision of a public authority will be liable to be quashed or otherwise dealt with by an appropriate order in judicial review proceedings where the court concludes that the decision is such that no authority properly directing itself on the relevant law and acting reasonably could have reached it. (Associated Provincial Picture Houses Ltd. v. Wednesbury Corpn., per Lord Greene, M.R.)"We may hasten to add, though the decision was rendered in the context of justification of grant of contract but the principles set out as regards the judicial review are of extreme significance.49. Discussing at length, the principle of judicial review in many a decision, the two Judge Bench in Reliance Telecom Ltd. & Another v. Union of India & Another, (2017) 4 SCC 269 , has held:-"As we find, the decision taken by the Central Government is based upon certain norms and parameters. Though criticism has been advanced that it is perverse and irrational, yet we are disposed to think that it is a policy decision which subserves the consumers interest. It is extremely difficult to say that the decision to conduct the auction in such a manner can be considered to be mala fide or based on extraneous considerations."50. Thus analysed, it is evincible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit by re-appreciation of the materials brought on record which is the duty of the appellate court is not permissible.51. The duty of the Court in exercise of the power of judicial review to zealously guard the human rights, fundamental rights and the citizens right of life and liberty as also many non-statutory powers of governmental bodies as regards their control over property and assets of various kinds. (See : Union of India and Anr. v S.B. Vohra, 2004(1) S.C.T 788 : (2004) 2 SCC 150)52. What Dr. Dhawan submits basically is that as the order passed by the Central Government after the order passed by the High Court of Kerala does not really reflect any reason, this Court should axe the same treating it as arbitrary and grant the LOP and that would be within the power of judicial review. The order passed by the Central Government has to be appreciated in its entirety. We repeat at the cost of repetition that neither the Central Government nor the Hearing Committee is expected to pass a judgment as a Judge is expected to do. The order must reflect application of mind and should indicate reasons. We may reiterate that the order dated 31st May, 2017, was bereft of reason, but the order impugned, that is the order dated 14th August, 2017, cannot be said to be sans reason. Learned senior counsel would contend with all the vigour at his command that it is not a reasoned one and for the same our attention has been drawn to the penultimate paragraph of the order.53. We are of the considered opinion that the order of the present nature has to be appreciated in entirety and when we peruse the entire order, we find that substantial reasons have been ascribed and, therefore, we are compelled to repel the submissions so assiduously and astutely advanced by Dr. Dhawan.
### Response:
1
### Explanation:
33. Thus, in our considered opinion what has been stated in Royal Medical Trust (supra) and IQ City Foundation (supra) has the precedential value under Article 141 of the Constitution. We have no hesitation in saying that the pronouncement in Kanachur Islamic Education Trust (R) (supra) has to rest on its own facts.The aforesaid decisions speak for themselves and, therefore, reliance on the same by the petitioners is of noare absolutely conscious of the appellate jurisdiction and the jurisdiction this Court is required to exercise while determining the controversy in exercise of power of judicial review under Article 32 of the Constitution. The principle of judicial review by the constitutional courts have been lucidly stated in many an authority of thismay hasten to add, though the decision was rendered in the context of justification of grant of contract but the principles set out as regards the judicial review are of extreme significance.Thus analysed, it is evincible that the exercise of power of judicial review and the extent to which it has to be done will vary from case to case. It is necessary to state with emphasis that it has its own complexity and would depend upon the factual projection. The broad principles have been laid down in Tata Cellular (supra) and other decisions make it absolutely clear that judicial review, by no stretch of imagination, can be equated with the power of appeal, for while exercising the power under Article 226 or 32 of the Constitution, the constitutional courts do not exercise such power. The process of adjudication on merit byof the materials brought on record which is the duty of the appellate court is not permissible.51. The duty of the Court in exercise of the power of judicial review to zealously guard the human rights, fundamental rights and the citizens right of life and liberty as also manypowers of governmental bodies as regards their control over property and assets of various kinds.t Dr. Dhawan submits basically is that as the order passed by the Central Government after the order passed by the High Court of Kerala does not really reflect any reason, this Court should axe the same treating it as arbitrary and grant the LOP and that would be within the power of judicial review. The order passed by the Central Government has to be appreciated in its entirety. We repeat at the cost of repetition that neither the Central Government nor the Hearing Committee is expected to pass a judgment as a Judge is expected to do. The order must reflect application of mind and should indicate reasons. We may reiterate that the order dated 31st May, 2017, was bereft of reason, but the order impugned, that is the order dated 14th August, 2017, cannot be said to be sans reason. Learned senior counsel would contend with all the vigour at his command that it is not a reasoned one and for the same our attention has been drawn to the penultimate paragraph of the order.We are of the considered opinion that the order of the present nature has to be appreciated in entirety and when we peruse the entire order, we find that substantial reasons have been ascribed and, therefore, we are compelled to repel the submissions so assiduously and astutely advanced by Dr. Dhawan.
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Commissioner Of Income Tax Vs. United Provinces Electric Supply Co | of the Undertaking. A sum of Rs. 60,000- was paid to the assessee in that regard on June 3, 1959. There was a dispute about the valuation of the assets acquired and ultimately by Memorandum dated November 18, 1963, the assets were revalued at Rs. 2,02,781-, but finally its valuation was determined in the accounting year 1966-67, i.e. between April 1, 1965 and October 26, 1965. In the light of that fact Court arrived at the conclusion that on the determination of the amount, the balancing charge would be includable in the assessment year 1966-67. In CIT v. The Central Indian Electric Supply Co. Ltd., 1993(114) CTR (MO) 160, the Undertaking was taken over by the M.P. Electricity Board. The assessee was entitled to the market value of its undertaking taken over or purchased under the Act. The assessee for the accounting year in question, i.e. 1970-71 submitted a return showing its income as nil, although along with the return it had enclosed a balance-sheet showing therein the written down value of its assets acquired by the Board as also the compensation actually received by it from the Board. Revenue contended that the amount had become due for payment only when the decree in terms of the award was passed by the District Judge and the same having been passed in the relevant year, it was the case of income accruing to the assessee and could be brought to tax in the assessment year in question. The Court held that in the two expressions "payable" and "due" there is difference only of degree and time. The money is payable immediately on the date of acquisition or sale under the Act, but it becomes due for payment at some future date, if there is a dispute about the price. In the event of dispute about the price, quantification of the price is done only through the award of the arbitrator. The Court thereafter observed :- "....the price due for payment to the assessee on the date of the passing of the decree was taxable in the relevant succeeding assessment year to the financial year, in which the decree was passed even though the amount under the decree may not have been actually paid or received by the assessee. In the scheme of IT Act, the taxable event is on "accrual of income" and not on actual receipt thereof. Pendency of litigation in respect of an amount or price due has no relevancy so far as the taxability of such accrued income is concerned. The likelihood of the income being reduced in the subsequent assessment year as a result of the litigation may give rise to resort to other remedies available in the Act for rectification and refund of the tax, but on that ground it cannot be held that no income had accrued to the assessee for the relevant assessment year. We find great support for our decision from the decision of the Supreme Court in the case of Kesoram Industries and Cotton Mills Ltd. v. CWT, 1966(59) ITR 767 SC. As for the wealth-tax so also th e income-tax. The liability to pay income-tax arise in the relevant financial year on accrual of income in that year and if the income is ascertainable and quantified, it can be brought to tax in the relevant assessment year." 18. We agree with the observation of Madhya Pradesh High Court that Pendency of litigation in respect of an amount or price due has no relevancy so far as the taxability of such accrued income is concerned. The likelihood of the income being reduced in the subsequent assessment year as a result of the litigation may give rise to resort to other remedies available in the Act for rectification and refund of the tax, but on that ground it cannot be held that no income had accrued to the assessee for the relevant assessment year. 19. In CIT v. National Electric Supply and Trading Corporation Ltd., 1996(222) ITR 60, Delhi, the Government purchased the Undertaking on February 20, 1949 and the compensation was paid in the year 1949-50 and 1951-52. The Undertaking demanded additional compensation. The matter was compromised and the additional amount was paid on October 29, 1968. Applying the decisions in Okara Electric Supply Co. Ltd and P.C. Gulati (supra), the Court held that the year of inclusion of the balancing charge would be when the moneys payable became due and the moneys payable could be held to have become due only when the same was ascertained. 20. From all the aforesaid cases dealt with by the High Courts, it is apparent that it was the contention of the asessee that the balancing charge is to be taxed in the year in which the undertaking is taken over. As against the revenue contended that when the compensation amount is determined the balancing charge is to be taxed. In the present case, the amount of compensation is determined and is paid. As there is dispute with regard to the determination of the market price, the matter is referred to the arbitrator. Presuming that it is ad hoc payment in the sense that final compensation is not determined by the arbitrator or appellant authority still the payment is towards purchase price. Section 41(2) nowhere provides that such balancing charge would be taxable in which "moneys payable" are determined `finally by the Arbitrators or the Appellate authority or such other authority provided under the Acquisition Act. Further, it is not the case of the assessee that pending final determination of the purchase price he has not accepted the said amount. Pendency of litigation for getting additional amount in respect of `moneys payable has no relevancy so far as the taxability of accrual of income - compensation received - is concerned. Hence, in case where compensation amount and its receipt is admitted, which is business profit under Section 41(2), it is to be taxed in the previous year of its receipt. 21. In the result, appeal | 1[ds]In our view, in the present appeal, we are only concerned with the limited question which was referred to the High Court, whetheron the facts andes of the case and oninterpretation of the provisions of the Indian Electricity Act, 1910, the provisions of Section 41(2) of the Act are applicable to the receipts of the amount by the assessee towards the compensation payable to him ? Therefore, additional question raised by the learned counsel for the appellant which depends upon facts, is not required to be dealt with or decided in this appeal. We also make it clear that we have not considered the effect of Section 7-A of the Indian Electricity Act, 1910 as amended by the U.P. Act 14 of 1976 as the said question was not there before the High Court. Further, we would make it clear that it would be open to the assessee to raise these contentions before the competentall the aforesaid cases dealt with by the High Courts, it is apparent that it was the contention of the asessee that the balancing charge is to be taxed in the year in which the undertaking is taken over. As against the revenue contended that when the compensation amount is determined the balancing charge is to be taxed. In the present case, the amount of compensation is determined and is paid. As there is dispute with regard to the determination of the market price, the matter is referred to the arbitrator. Presuming that it is ad hocnse that final compensation is not determined by the arbitrator or appellant authority still the payment is towards purchase price. Section 41(2) nowhere provides that such balancing charge would be taxable in which "moneys payable" are determined `finally by the Arbitrators or the Appellate authority or such other authority provided under the Acquisition Act. Further, it is not the case of the assessee that pending final determination of the purchase price he has not accepted the said amount. Pendency of litigation for getting additional amount in respect of `moneys payable has no relevancy so far as the taxability of accrual of income - compensation received - is concerned. Hence, in case where compensation amount and its receipt is admitted, which is business profit under Section 41(2), it is to be taxed in the previous year of its receipt. | 1 | 5,567 | 433 | ### 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:
of the Undertaking. A sum of Rs. 60,000- was paid to the assessee in that regard on June 3, 1959. There was a dispute about the valuation of the assets acquired and ultimately by Memorandum dated November 18, 1963, the assets were revalued at Rs. 2,02,781-, but finally its valuation was determined in the accounting year 1966-67, i.e. between April 1, 1965 and October 26, 1965. In the light of that fact Court arrived at the conclusion that on the determination of the amount, the balancing charge would be includable in the assessment year 1966-67. In CIT v. The Central Indian Electric Supply Co. Ltd., 1993(114) CTR (MO) 160, the Undertaking was taken over by the M.P. Electricity Board. The assessee was entitled to the market value of its undertaking taken over or purchased under the Act. The assessee for the accounting year in question, i.e. 1970-71 submitted a return showing its income as nil, although along with the return it had enclosed a balance-sheet showing therein the written down value of its assets acquired by the Board as also the compensation actually received by it from the Board. Revenue contended that the amount had become due for payment only when the decree in terms of the award was passed by the District Judge and the same having been passed in the relevant year, it was the case of income accruing to the assessee and could be brought to tax in the assessment year in question. The Court held that in the two expressions "payable" and "due" there is difference only of degree and time. The money is payable immediately on the date of acquisition or sale under the Act, but it becomes due for payment at some future date, if there is a dispute about the price. In the event of dispute about the price, quantification of the price is done only through the award of the arbitrator. The Court thereafter observed :- "....the price due for payment to the assessee on the date of the passing of the decree was taxable in the relevant succeeding assessment year to the financial year, in which the decree was passed even though the amount under the decree may not have been actually paid or received by the assessee. In the scheme of IT Act, the taxable event is on "accrual of income" and not on actual receipt thereof. Pendency of litigation in respect of an amount or price due has no relevancy so far as the taxability of such accrued income is concerned. The likelihood of the income being reduced in the subsequent assessment year as a result of the litigation may give rise to resort to other remedies available in the Act for rectification and refund of the tax, but on that ground it cannot be held that no income had accrued to the assessee for the relevant assessment year. We find great support for our decision from the decision of the Supreme Court in the case of Kesoram Industries and Cotton Mills Ltd. v. CWT, 1966(59) ITR 767 SC. As for the wealth-tax so also th e income-tax. The liability to pay income-tax arise in the relevant financial year on accrual of income in that year and if the income is ascertainable and quantified, it can be brought to tax in the relevant assessment year." 18. We agree with the observation of Madhya Pradesh High Court that Pendency of litigation in respect of an amount or price due has no relevancy so far as the taxability of such accrued income is concerned. The likelihood of the income being reduced in the subsequent assessment year as a result of the litigation may give rise to resort to other remedies available in the Act for rectification and refund of the tax, but on that ground it cannot be held that no income had accrued to the assessee for the relevant assessment year. 19. In CIT v. National Electric Supply and Trading Corporation Ltd., 1996(222) ITR 60, Delhi, the Government purchased the Undertaking on February 20, 1949 and the compensation was paid in the year 1949-50 and 1951-52. The Undertaking demanded additional compensation. The matter was compromised and the additional amount was paid on October 29, 1968. Applying the decisions in Okara Electric Supply Co. Ltd and P.C. Gulati (supra), the Court held that the year of inclusion of the balancing charge would be when the moneys payable became due and the moneys payable could be held to have become due only when the same was ascertained. 20. From all the aforesaid cases dealt with by the High Courts, it is apparent that it was the contention of the asessee that the balancing charge is to be taxed in the year in which the undertaking is taken over. As against the revenue contended that when the compensation amount is determined the balancing charge is to be taxed. In the present case, the amount of compensation is determined and is paid. As there is dispute with regard to the determination of the market price, the matter is referred to the arbitrator. Presuming that it is ad hoc payment in the sense that final compensation is not determined by the arbitrator or appellant authority still the payment is towards purchase price. Section 41(2) nowhere provides that such balancing charge would be taxable in which "moneys payable" are determined `finally by the Arbitrators or the Appellate authority or such other authority provided under the Acquisition Act. Further, it is not the case of the assessee that pending final determination of the purchase price he has not accepted the said amount. Pendency of litigation for getting additional amount in respect of `moneys payable has no relevancy so far as the taxability of accrual of income - compensation received - is concerned. Hence, in case where compensation amount and its receipt is admitted, which is business profit under Section 41(2), it is to be taxed in the previous year of its receipt. 21. In the result, appeal
### Response:
1
### Explanation:
In our view, in the present appeal, we are only concerned with the limited question which was referred to the High Court, whetheron the facts andes of the case and oninterpretation of the provisions of the Indian Electricity Act, 1910, the provisions of Section 41(2) of the Act are applicable to the receipts of the amount by the assessee towards the compensation payable to him ? Therefore, additional question raised by the learned counsel for the appellant which depends upon facts, is not required to be dealt with or decided in this appeal. We also make it clear that we have not considered the effect of Section 7-A of the Indian Electricity Act, 1910 as amended by the U.P. Act 14 of 1976 as the said question was not there before the High Court. Further, we would make it clear that it would be open to the assessee to raise these contentions before the competentall the aforesaid cases dealt with by the High Courts, it is apparent that it was the contention of the asessee that the balancing charge is to be taxed in the year in which the undertaking is taken over. As against the revenue contended that when the compensation amount is determined the balancing charge is to be taxed. In the present case, the amount of compensation is determined and is paid. As there is dispute with regard to the determination of the market price, the matter is referred to the arbitrator. Presuming that it is ad hocnse that final compensation is not determined by the arbitrator or appellant authority still the payment is towards purchase price. Section 41(2) nowhere provides that such balancing charge would be taxable in which "moneys payable" are determined `finally by the Arbitrators or the Appellate authority or such other authority provided under the Acquisition Act. Further, it is not the case of the assessee that pending final determination of the purchase price he has not accepted the said amount. Pendency of litigation for getting additional amount in respect of `moneys payable has no relevancy so far as the taxability of accrual of income - compensation received - is concerned. Hence, in case where compensation amount and its receipt is admitted, which is business profit under Section 41(2), it is to be taxed in the previous year of its receipt.
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State Of H.P Vs. Narain Singh | orders which were struck down by the High Court. Therefore, the assessment order is legislatively valid and the tax demands are also enforceable. [See paras 33 and 35 at page 1925] 30. It is therefore clear where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation. Therefore, this Court cannot uphold the reasoning in the High Court judgment that the impugned amendment is invalid just because it nullifies some provisions of the earlier Act. 31. The aforesaid principles have been reiterated by a three-Judge Bench in Meerut Development Authority etc. Vs. Satbir Singh and others - AIR 1997 SC 1467 , Justice Ramaswamy speaking for the Court summed up the position in para 10 as follows:- "10. It is well settled by catena of decisions of this Court that when this Court in exercise of power of judicial review, has declared a particular statute to be invalid, the Legislature has no power to overrule the judgment; however, it has the power to suitably amend the law by use of appropriate phraseology removing the defects pointed out by the Court and by amending the law inconsistent with the law declared by the Court so that the defects which were pointed out were never on statute for effective enforcement of the law. This Court has considered in extenso the case law in a recent judgment in Indian Aluminium Co. V. State of Kerala (1996) 2 JT (SC) 85: (1996 AIR SCW 1051) had held that such an exercise of power to amend a statute is not an incursion on the judicial power of the Court but is a statutory exercise of the constituent power to suitably amend the law and to validate the actions which have been declared to be invalid..." 32. A Constitution Bench of this Court in the case of State of Tamil Nadu Vs. M/s. Arooran Sugars Limited - AIR 1997 SC 1815 , reiterated the same principle after analyzing several cases on the point. The Court has summed up the position as follows:- "16. ...It is open to the legislature to remove the defect pointed out by the court or to amend the definition or any other provision of the Act in question retrospectively. In this process it cannot be said that there has been an encroachment by the legislature over the power of the judiciary. A courts directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective effect..." 33. In Indra Sawhney Vs. Union of India – AIR 2000 SC 498 , Justice Jagannadha Rao speaking for a three-Judge Bench explained the position by saying that it would be permissible for the legislature to remove the defect which is the cause for discrimination and which defect was pointed out by the Court. The learned Judge made it very clear that this defect can be removed both retrospectively and prospectively by legislative action and the previous actions can be validated. But where there is a mere validation without the defect being legislatively removed the legislative action will amount to overruling the judgment by a legislative fiat and that will be invalid. In the instant case the amendment Act has removed the defect of the previous law and therefore, the validation exercise is perfectly sound and cannot be faulted with. 34. In Rai Ramkrishna and others etc. Vs. State of Bihar - AIR 1963 SC 1667 , a Constitution Bench of this Court speaking through Justice Gajendragadkar, as His Lordship then was, explained the principle with characteristic clarity, which is reproduced hereinbelow:- "10. The other point on which there is no dispute before us is that the legislative power conferred on the appropriate Legislatures to enact law in respect of topics covered by the several entries in the three Lists can be exercised both prospectively and retrospectively. Where the Legislature can make a valid law, it may provide not only for the prospective operation of the material provisions of the said law but it can also provide for the retrospective operation of the said provisions. Similarly, there is no doubt that the legislative power in question includes the subsidiary or the auxiliary power to validate laws which have been found to be invalid. If a law passed by a legislature is struck down by the Courts as being invalid for one infirmity or another, it would be competent to the appropriate Legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed. This position is treated as firmly established since the decision of the Federal Court in the case of United Provinces v. Mst. Atiqa Begum, 1940 FCR 110: (AIR 1941 FC 16)." 35. See the decision of this Court in Satnam Overseas (Export) and others Vs. State of Haryana and another - (2003) 1 SCC 561 , para 52 where reference was made to the ratio in Rai Ramkrishna (supra). 36. Recently in the case of State of Bihar and others Vs. State Pensioners Samaj - (2006) 5 SCC 65 , this Court reiterated the same position in paragraph 16 at page 71, which is reproduced below:- "16. ......It is always open to the legislature to alter the law retrospectively as long as the very premise on which the earlier judgment declared a certain action as invalid is removed. The situation would be one of a fundamental change in the circumstances and such a validating Act was not open to challenge on the ground that it amounted to usurpation of judicial powers." | 1[ds]23. An argument was, however, made before the High Court that the aforesaid amendment is actuated by a mala fide motive and is a piece of colourable legislation. The aforesaid contention was, however, not accepted by the High Court in the impugned judgment. In fact such contention is not tenable on principle24. Reference in this connection be made to a decision of this Court in the case of K. Nagaraj & others Vs. State of Andhra Pradesh and another1985 1 SCC 523 , wherein Chief Justice Chandrachud, speaking for ae Bench said that the legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. Learned Chief Justice held that the concept of "transferred malice" is unknown in the field of legislation provided the legislature enacts the law within its powers25. The aforesaid principle in K. Nagaraj (supra) has been accepted by this Court in many cases and a reference in this connection may be made to a decision of this Court in G.C. Kanungo Vs. State of Orissa(1995) 5 SCC 96 26. The power of the Sovereign legislature to legislate within its field, both prospectively and retrospectively cannot be questioned. This position has been settled in many judgments of this Court. Some of them may be considered below27. In Bhubaneshwar Singh & another Vs. Union of India & others(1994) 6 SCC 77 , the Court expressly approved the aforesaid position in Para 9 at page. In so far as validating Acts are concerned, this Court in Bhubaneshwar Singh (supra) also considered the question in para 11 and held that the Court has the powers by virtue of such validating legislation, to "wipe out" judicial pronouncements of the High Court and the Supreme Court by removing the defects in the statute retrospectively when such statutes had been declared ultra vires by Courts in view of its defects. This Court has held that such legislative exercise will not amount to encroachment on the judicial power. This Court has accepted that such legislative device which removes the vice in previous legislation is not considered an encroachment on judicial power. In support of the aforesaid proposition, this Court in Bhubaneshwar Singh (supra) relied on the proposition laid down by the Chief Justice Hidayatullah, speaking for the Constitution Bench in Shri Prithvi Cotton Mills Ltd. and another Vs. Broach Borough Municipality and others(1969) 2 SCC 283 28. Again in the case of Indian Aluminium Company etc. etc. Vs. State of Kerala and othersAIR 1996 SC 1431 , this Court while summarizing the principle held that a legislature cannot directly overrule a judicial decision but it has the power to make the decision ineffective by removing the basis on which the decision is rendered, while at the same time adhering to the constitutional imperatives and the legislature is competent to do so [See para 59a (9) at page 1446.]29. In the case of Comorin Match Industries (Pvt.) Limited Vs. State of Tamil NaduAIR 1996 SC 1916 , the facts were that the assessment orders passed under Central Sales Tax Act were set aside by the High Court and the State was directed to refund the amount to the assessee. As the State failed to carry it out, contempt petitions were filed but the assessment orders were validated by passing the amendment Act of 1969 with retrospective effect and the Court held that the tax demanded became valid and enforceable. The Court held that in such a situation the State will not be precluded from realizing the tax due as subsequently the assessment order was validated by the amending Act of 1969 and the order passed in the contempt proceeding will not have the effect of the writing off the debt which is statutorily owed by the assessee to the State. The learned Judges held that the effect of the amending Act is retrospective validation of the assessment orders which were struck down by the High Court. Therefore, the assessment order is legislatively valid and the tax demands are also enforceable. [See paras 33 and 35 at page 1925]30. It is therefore clear where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation. Therefore, this Court cannot uphold the reasoning in the High Court judgment that the impugned amendment is invalid just because it nullifies some provisions of the earlier Act33. In Indra Sawhney Vs. Union of India – AIR 2000 SC 498 , Justice Jagannadha Rao speaking for ae Bench explained the position by saying that it would be permissible for the legislature to remove the defect which is the cause for discrimination and which defect was pointed out by the Court. The learned Judge made it very clear that this defect can be removed both retrospectively and prospectively by legislative action and the previous actions can be validated. But where there is a mere validation without the defect being legislatively removed the legislative action will amount to overruling the judgment by a legislative fiat and that will be invalid. In the instant case the amendment Act has removed the defect of the previous law and therefore, the validation exercise is perfectly sound and cannot be faulted with. | 1 | 5,512 | 970 | ### 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:
orders which were struck down by the High Court. Therefore, the assessment order is legislatively valid and the tax demands are also enforceable. [See paras 33 and 35 at page 1925] 30. It is therefore clear where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation. Therefore, this Court cannot uphold the reasoning in the High Court judgment that the impugned amendment is invalid just because it nullifies some provisions of the earlier Act. 31. The aforesaid principles have been reiterated by a three-Judge Bench in Meerut Development Authority etc. Vs. Satbir Singh and others - AIR 1997 SC 1467 , Justice Ramaswamy speaking for the Court summed up the position in para 10 as follows:- "10. It is well settled by catena of decisions of this Court that when this Court in exercise of power of judicial review, has declared a particular statute to be invalid, the Legislature has no power to overrule the judgment; however, it has the power to suitably amend the law by use of appropriate phraseology removing the defects pointed out by the Court and by amending the law inconsistent with the law declared by the Court so that the defects which were pointed out were never on statute for effective enforcement of the law. This Court has considered in extenso the case law in a recent judgment in Indian Aluminium Co. V. State of Kerala (1996) 2 JT (SC) 85: (1996 AIR SCW 1051) had held that such an exercise of power to amend a statute is not an incursion on the judicial power of the Court but is a statutory exercise of the constituent power to suitably amend the law and to validate the actions which have been declared to be invalid..." 32. A Constitution Bench of this Court in the case of State of Tamil Nadu Vs. M/s. Arooran Sugars Limited - AIR 1997 SC 1815 , reiterated the same principle after analyzing several cases on the point. The Court has summed up the position as follows:- "16. ...It is open to the legislature to remove the defect pointed out by the court or to amend the definition or any other provision of the Act in question retrospectively. In this process it cannot be said that there has been an encroachment by the legislature over the power of the judiciary. A courts directive must always bind unless the conditions on which it is based are so fundamentally altered that under altered circumstances such decisions could not have been given. This will include removal of the defect in a statute pointed out in the judgment in question, as well as alteration or substitution of provisions of the enactment on which such judgment is based, with retrospective effect..." 33. In Indra Sawhney Vs. Union of India – AIR 2000 SC 498 , Justice Jagannadha Rao speaking for a three-Judge Bench explained the position by saying that it would be permissible for the legislature to remove the defect which is the cause for discrimination and which defect was pointed out by the Court. The learned Judge made it very clear that this defect can be removed both retrospectively and prospectively by legislative action and the previous actions can be validated. But where there is a mere validation without the defect being legislatively removed the legislative action will amount to overruling the judgment by a legislative fiat and that will be invalid. In the instant case the amendment Act has removed the defect of the previous law and therefore, the validation exercise is perfectly sound and cannot be faulted with. 34. In Rai Ramkrishna and others etc. Vs. State of Bihar - AIR 1963 SC 1667 , a Constitution Bench of this Court speaking through Justice Gajendragadkar, as His Lordship then was, explained the principle with characteristic clarity, which is reproduced hereinbelow:- "10. The other point on which there is no dispute before us is that the legislative power conferred on the appropriate Legislatures to enact law in respect of topics covered by the several entries in the three Lists can be exercised both prospectively and retrospectively. Where the Legislature can make a valid law, it may provide not only for the prospective operation of the material provisions of the said law but it can also provide for the retrospective operation of the said provisions. Similarly, there is no doubt that the legislative power in question includes the subsidiary or the auxiliary power to validate laws which have been found to be invalid. If a law passed by a legislature is struck down by the Courts as being invalid for one infirmity or another, it would be competent to the appropriate Legislature to cure the said infirmity and pass a validating law so as to make the provisions of the said earlier law effective from the date when it was passed. This position is treated as firmly established since the decision of the Federal Court in the case of United Provinces v. Mst. Atiqa Begum, 1940 FCR 110: (AIR 1941 FC 16)." 35. See the decision of this Court in Satnam Overseas (Export) and others Vs. State of Haryana and another - (2003) 1 SCC 561 , para 52 where reference was made to the ratio in Rai Ramkrishna (supra). 36. Recently in the case of State of Bihar and others Vs. State Pensioners Samaj - (2006) 5 SCC 65 , this Court reiterated the same position in paragraph 16 at page 71, which is reproduced below:- "16. ......It is always open to the legislature to alter the law retrospectively as long as the very premise on which the earlier judgment declared a certain action as invalid is removed. The situation would be one of a fundamental change in the circumstances and such a validating Act was not open to challenge on the ground that it amounted to usurpation of judicial powers."
### Response:
1
### Explanation:
23. An argument was, however, made before the High Court that the aforesaid amendment is actuated by a mala fide motive and is a piece of colourable legislation. The aforesaid contention was, however, not accepted by the High Court in the impugned judgment. In fact such contention is not tenable on principle24. Reference in this connection be made to a decision of this Court in the case of K. Nagaraj & others Vs. State of Andhra Pradesh and another1985 1 SCC 523 , wherein Chief Justice Chandrachud, speaking for ae Bench said that the legislature, as a body, cannot be accused of having passed a law for an extraneous purpose. Learned Chief Justice held that the concept of "transferred malice" is unknown in the field of legislation provided the legislature enacts the law within its powers25. The aforesaid principle in K. Nagaraj (supra) has been accepted by this Court in many cases and a reference in this connection may be made to a decision of this Court in G.C. Kanungo Vs. State of Orissa(1995) 5 SCC 96 26. The power of the Sovereign legislature to legislate within its field, both prospectively and retrospectively cannot be questioned. This position has been settled in many judgments of this Court. Some of them may be considered below27. In Bhubaneshwar Singh & another Vs. Union of India & others(1994) 6 SCC 77 , the Court expressly approved the aforesaid position in Para 9 at page. In so far as validating Acts are concerned, this Court in Bhubaneshwar Singh (supra) also considered the question in para 11 and held that the Court has the powers by virtue of such validating legislation, to "wipe out" judicial pronouncements of the High Court and the Supreme Court by removing the defects in the statute retrospectively when such statutes had been declared ultra vires by Courts in view of its defects. This Court has held that such legislative exercise will not amount to encroachment on the judicial power. This Court has accepted that such legislative device which removes the vice in previous legislation is not considered an encroachment on judicial power. In support of the aforesaid proposition, this Court in Bhubaneshwar Singh (supra) relied on the proposition laid down by the Chief Justice Hidayatullah, speaking for the Constitution Bench in Shri Prithvi Cotton Mills Ltd. and another Vs. Broach Borough Municipality and others(1969) 2 SCC 283 28. Again in the case of Indian Aluminium Company etc. etc. Vs. State of Kerala and othersAIR 1996 SC 1431 , this Court while summarizing the principle held that a legislature cannot directly overrule a judicial decision but it has the power to make the decision ineffective by removing the basis on which the decision is rendered, while at the same time adhering to the constitutional imperatives and the legislature is competent to do so [See para 59a (9) at page 1446.]29. In the case of Comorin Match Industries (Pvt.) Limited Vs. State of Tamil NaduAIR 1996 SC 1916 , the facts were that the assessment orders passed under Central Sales Tax Act were set aside by the High Court and the State was directed to refund the amount to the assessee. As the State failed to carry it out, contempt petitions were filed but the assessment orders were validated by passing the amendment Act of 1969 with retrospective effect and the Court held that the tax demanded became valid and enforceable. The Court held that in such a situation the State will not be precluded from realizing the tax due as subsequently the assessment order was validated by the amending Act of 1969 and the order passed in the contempt proceeding will not have the effect of the writing off the debt which is statutorily owed by the assessee to the State. The learned Judges held that the effect of the amending Act is retrospective validation of the assessment orders which were struck down by the High Court. Therefore, the assessment order is legislatively valid and the tax demands are also enforceable. [See paras 33 and 35 at page 1925]30. It is therefore clear where there is a competent legislative provision which retrospectively removes the substratum of foundation of a judgment, the said exercise is a valid legislative exercise provided it does not transgress any other constitutional limitation. Therefore, this Court cannot uphold the reasoning in the High Court judgment that the impugned amendment is invalid just because it nullifies some provisions of the earlier Act33. In Indra Sawhney Vs. Union of India – AIR 2000 SC 498 , Justice Jagannadha Rao speaking for ae Bench explained the position by saying that it would be permissible for the legislature to remove the defect which is the cause for discrimination and which defect was pointed out by the Court. The learned Judge made it very clear that this defect can be removed both retrospectively and prospectively by legislative action and the previous actions can be validated. But where there is a mere validation without the defect being legislatively removed the legislative action will amount to overruling the judgment by a legislative fiat and that will be invalid. In the instant case the amendment Act has removed the defect of the previous law and therefore, the validation exercise is perfectly sound and cannot be faulted with.
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Mazgaon Dock Limited Vs. Association of Engineering & Others | accept the documents and the companys mere assertion in that behalf without giving an opportunity to the workmen to test the said documents by cross-examination. It is, therefore, only fair that both sides should get an opportunity to prove their case on this aspect vis-a-vis the existing and the new wage structure, both old and new, including dearness allowance system. There is no doubt that if the Company is unable to bear the burden of the existing wage structure that will be one of the compelling reasons to modify or replace it.37. It must in fairness to the tribunal be observed that either the 4th Pay Commission Report not the High Power Pay Committee Report nor the Supreme Court decision in The Indian Hume Pipe case (supra) was before it when it gave the award. But it ignored some obvious considerations. The workman are not to be deprived of their existing benefits except for compelling reasons. The Tribunal was impressed by the uniform dearness allowance which neutralized the increase in the cost of only essential goods and services for all income groups. But the Tribunal forgot to find out whether the existing dearness allowance system which was giving more benefits to the workmen over-neutralized the rise in the cost of living as indicated even by AICPI itself. That had to be found out by the method formulated by the Division Bench in its decision Hindustan Lever case (supra). Secondly, the tribunal did not examine the case sought to be made out by the Company on the basis of disparities in income from all angles. It merely accepted a bald table showing the wage packets of the different categories of workman and the staff. Lastly, the Company had not even leaded before it, its financial incapacity to bear the burden on account of the existing dearness allowance system which the Company wanted to replace. The bleak picture of its finances in future was painted by the Company in the context of the workmens demands which had nothing to do with the Companys demand. The Tribunal has not recorded its finding with regard to the Companys finances, even in the context of the workmens demands. These according to us are the errors apparent on the face of the award and it is for these reasons, and not necessarily for the reasons given by the learned Judge that an interference with the award was and is justified even in exercise of the writ jurisdiction.38. There is further no dispute that the Tribunal has revised the wage scales upward because it has replaced the existing system of dearness allowance by a new system. The learned Judge has, with respect, correctly pointed out that the new system of payment of dearness allowance is interlinked with the new pay scales, and since he was remanding the Companys demand for introducing new system of dearness allowance, it was also necessary to set aside the award with regard to the revision of the wage scales and remand it to the Tribunal. Since we are setting aside the new Dearness Allowance System for the reasons given above and since admittedly the new dearness allowance system and the new wage-scales granted are intimately interlinked and are dependent upon each other, it is only just and fair that the revision of pay scales granted by the Tribunal is also set aside and the workers demand in that behalf is also sent back to the tribunal for fresh consideration.39. The question whether there should be a replacement of the existing system of dearness allowance will have to be examined in the light of the two circumstances, namely distortions or the disparities in the incomes of the workmen and their superiors and the financial capacity of the Company to bear the burden of the existing system. Both parties should be given an opportunity to lead evidence and to test each others case in that behalf. If the Company succeeds in proving either of the circumstances, then a reconsideration of the existing pattern of the payment of dearness allowance may become necessary notwithstanding that there is no over-neutralization of the increase in the cost of living under the existing system and notwithstanding further that the existing system has been prevalent for a long time.40. The Respondent Association has filed an objection petition challenging the decision of the learned Judge with regard to the nucleus allowance, and overtime allowance claimed by the workmen in the Launches and Boats Department. The nucleus allowance was started as an incentive for workman primarily engaged in ship repair, to move over to the ship building work. The incentive was given to overcome the workmens reluctance to lose over-time allowance which was available in ship repair work, but not in his building work. Since admittedly today the ship building predominates and the ship repair work is considerably reduced, there is no need for continuance of this allowance to compensate the loss of over time allowance. As observed by the learned Judge the raison detere for the nucleus allowance has thus disappeared and hence there is no need to continue it.We also do not find any reason to interfere with the denial of over time allowance for the workmen of the Launches and Boats Department. As has been observed by the tribunal and accepted by the learned Judge, a similar demand made in an earlier reference No. 126 of 1954 was rejected by the then Tribunal on the ground that the duties of the workmen involved were intermittent and leisurely in character as compared to the continuous and arduous nature of the work done by other workmen. The Associations contention in that behalf that the workmen in the Launches and Boats Department have to suffer long waits which cause as much fatigue as continuous work does not merit any consideration, since we are of the view that the alleged fatigue cause by such waits even if true, needs no additional compensation.The objection petition of the workmen, therefore, has to be rejected. | 1[ds]7. There is no dispute before us, as indeed there was no dispute either before the learned Single Judge or the Tribunal, that the main bone of contention between the parties was the desirability or otherwise of the continuation of the present system of dearness allowance. Even the consideration of the demand of the workers for revision of the wage structure was linked to the Companys demand for change in the system for payment of dearness allowance. As is apparent from the Award of the industrial Tribunal, even the Tribunal has linked the change in the revision of the wage structure which it has granted, to the change in the dearness allowance system which it has introduced, and both changes are so linked by it as to be dependant upon each other. That is why even the learned Single Judge, while setting aside the Award of the Tribunal with regard to the dearness allowance, has also quashed the Award revising the wage structure and remanded both for fresh consideration to the Tribunal. Further, the Appellant Companys grievance before us against the learned Judges decision is also mainly on the ground that the learned Judge has interfered with the Award of the Tribunal introducing the new system of dearness allowance. Hence the preliminary contention as to whether the learned Judge was right in interferring with the award while exercising his jurisdiction under Article 226 of the Constitution is intimately connected with the larger question on merits as to whether the Tribunal was right in doing away with the existing system of dearness allowance and introducing a new one. It may also be mentioned in this connection that the reasons given by the learned Judge for interferring with the Tribunals Award in that behalf are also reasons connected intimately with the merits and demerits of the existing and the new system. Hence before we answer the preliminary contention, it is necessary to examine the arguments and counter arguments on the merits and demerits of the present and the new system of dearness allowance.It will thus be apparent that for the operatives drawing basic wage upto Rs. 306/per month, there in no slab system under scale B. The dearness allowance paid to them is linked both to the percentage of basic pay and consumer price index figure ("CPI"). For every 2 points rise in CPI, they are paid dearness allowance at the rate of 1 per cent of their basic pay. It is only the operative whose basic pay is in excess of Rs. 306/per month who are paid dearness allowance on the sliding scale shown in the table above applicable to the clerical and subordinate staff, there being again the same dual linkage to basic pay and CPI as shown in the table. It is possible to describe the system on which dearness allowance is paid to operatives drawing wage above basic wage of Rs. 306/and to the clerical and subordinate staff, as being a slab system, since the rate of dearness allowance goes on varying on a sliding scale for every next Rs.However, the rate of dearness allowance paid even to this category of workmen is not a varying lump sum amount but a varying percentage of basic wage.It would thus appear from the aforesaid review of the discussion and findings of the Central Government Dearness Allowance Commission, National Labour Commission, Third Pay Commission, and Boothlingam Committee and the Fourth Pay Commission that certain broad principles were accepted as underlying any system of dearness allowance. It is accepted that the, the purpose of dearness allowance is to neutralise as far as possible the entire rise in the cost of living of the minimum wage earner. The minimum wage which is sought to be thus protected completely is the minimum wage in theIndustries and not necessarily the wage fixed under the Minimum Wages Act. This means that complete protection which is advised to be given against the price rise is to the employees who draw the lowest wage in any establishment. The percentage of neutralisation of the lowest paid worker may vary between 95 to 100. Till the Fourth Pay Commission made a departure in that respect it was commonly held that there need be no protection against the rise in the cost of living to incomes above a certain amount of salary firstly because the higher wage/salary earners are expected to make the same sacrifice as other sections of society whose incomes are not protected by dearness allowance, and secondly because, the higher salary they draw is expected to cushion them against the price rise. However, it is commonly accepted that all wage/salary earners who are paid dearness allowance need not be protected to the same extent, and their protection may be on a scale sliding or declining with the rise in the income. This is also on the principle that the higher the wage group, more the cushion and more the need to sacrifice. To this principle as pointed out above the Palekar Award has made an exception and has on the contrary granted higher rate of dearness allowance, to the higher incomes. The cost of price index which is generally taken into consideration for protecting the wage/salary is the cost of price index of the basket of goods and services consumed by the average worker because what is to be protected against is the rise in prices of the essentials and not of the other goods and services. These essentials are deemed to be the same for all wage/salary earners whatever their income bracket.One thing, therefore, is certain that the trend beginning from the Third Pay Commission is in favour of the view that the object of the dearness allowances is to prevent the erosion of real income, and not merely to protect the consumption basket of essential goods and services against the price rise. The Fourth Pay Commission and the High Power Pay Committee have, as pointed out earlier, felt the need to protect monthly basic pay upto Rs. 3,500/of the Government employees fully. Whatever the view, therefore, with regard to the object of dearness allowance that one may accept, it can sagely be concluded on the authority of these expert Government panels that the rise in the cost of living upto the basic pay of at least Rs. 3,500/per month needs to be neutralized to the extent of 100%. As observed by the High Power Pay Committee, the consumption basket, which is the basis of the All India Consumer Price Index is not relevant up to the said basic pay range. It has also to be noted that these expert panels have afforded substantial protection even to monthly incomes above Rs. 3,500/by recommending 75% and 65% of neutralization to incomes between Rs. 3,505/to Rs. 6,000/and above Rs. 6,000/is demonstrated there on the basis of the method devised for the purpose that the dearness allowance system prevalent in that Company did notthe rise in the cost of living and the Company had failed to make out any other reason for change in the existing system Hence the Companys demand for placing a ceiling on dearness allowance was not justified. That decision has become most relevant and important for our purpose for three reasons in particular. Firstly, the method evolved there to find out whether the dearness allowance system existing in an establishmentthe rise in the cost of living can be applied in the present case to find out the neutralisation under the existing system. Secondly, the decision has discussed the circumstances in the light of which the distortions and disparties in the incomes of the workmen and their superiors have to be examined. Since the Tribunal in the present case have given such distortions as one of the grounds to replace the existing system, and the Company also relies heavily on that circumstances in support of its demand, it will be necessary to examine the contention in the light of the said decision. It is in the light of that decision also, further that we will have to consider whether the Company has made out any other compelling reason for changing the present system of the payment of dearness allowance and to replace it by the new one as the Tribunal has done.23. The method evolved by that decision to determine whether the existing dearness allowance system result inof the rise in the cost of living is as follows. First the rate at which the future rise in the cost of living is to be neutralized is found out by dividing the total wage packet of the workmen (basic pay plus dearness allowance) in the base year by the cost of living index of that year, is multiplied by the said neutralization rate. If the wage packet thus arrived at exceeds the wage packet payable to the workmen under the existing system, there is nounder the existing system and the converse.It is, therefore, clear that the existing dearness allowance system does not over neutralise the rise in the cost of living either at the minimum or the maximum pay scale of any of the workmen involved in the Reference, Hence the Company cannot be said to have made out a case for change in the existing system on thatis true that the existing system, as indicated by the aforesaid table does show this anomaly in some cases. But the anomaly is so marginal as to require no serious consideration at least for replacing it by a totally new one as the Tribunal has done. It has also to be remembered that the demand for affecting the changes is not raised by the workmen. If the workmen have no grievance against it, there is no reason to tinker with the system which has been prevalent in the Company for more about 40 yearsregards the first contention, we may point out that the National Labour Commission has prescribed the neutralization percentage at the lowest level between 95 to 100. The existing scheme by ensuring it at 96.92% at the minimum scale does confirm to the pattern. It is only orginally less at the maximum pay scale. But as is pointed out earlier, the workmen have no grievance against it. As regards the second contention, there is no law to prevent, an employer from giving equal neutralization percentage to all employees. If, therefore, an employer has already given it, he cannot ask for a reduction in it, except for compellingare afraid that this argument also misses the point, namely that the present demand for change in the dearness allowance system is not made by the workmen, including those whose wages are not protected fully. What is more, as is admitted by Mr. Damania, the new system introduced by the Tribunal is bound to affect adversely the wage packets of 60% of the workmen. On balance, therefore, the existing system is not disadvantageous to the workmen as a whole. There is also no grievance against it from any of the section of the workmen. Further under the new system the lowest paid workmen stand to gain only marginally. But a more disarming reply to all these contentions advanced on behalf of the new system is that the Companys demand for the introduction of the new system is not motivated by a concern for the lowest paid workmen but by its alarm at the alleged disproportionate wage packets of the workmen in the higher income brackets. As has been held by the Supreme Court in the Indian Hume Pipe case (supra) the existing service conditions should not be tinkered with to the disadvantage of the workmen unless there are compiling reasons to do so. Hence, these contentions by themselves have no merit inhave already appointed out that there has been a change in the trend of thinking on the object of the dearness allowance. The Third and the Fourth Pay Commissions and the High Power Pay Committee have now come to accept the view that it is the real value of the income of the workman which requires to be protected against its erosion by inflation. The object of dearness allowance is no longer merely to protect the workman against the rise in the cost of living of the basic necessities. There is nothing in law to prevent an employer from introducing a system which protects the real value of the workmens income. If, therefore, an employer has done so, so long as, it is not shown that the dearness allowance paid to the workman protects more than the real value of their income, it is not possible to accept that the existing system should be changed merely because the incomes are allegedly out of proportion to the increases in the cost of basic necessities. The table reproduced above which is also worked out by the method suggested by the Division Bench in the Hindustan Liver case (supra) shows that under the existing system the extent of the protection afforded to the income of the workmen at all levels is less thanargument was general in nature and not with reference to any particular allowance and therefore has to be met by a general reply. The argument firstly forgets that what is under scrutiny is the working of the existing system of dearness allowance and the extent to which the same neutralizes the rise in the CPI. The other allowances, if any, have nothing to do with the dearness allowance system. They are paid independently of it. The purposes for which they are paid are also different. Secondly, the CPI though it takes into account the items for some of which these separate allowances are paid (such as house rent allowance, for example) does no more than take into account only the all India average of their incidence. The allowances, on the other hand, are paid to compensate for more than average or normal incidence of these items. For example, the house rent allowance is not paid in every town but only in such cities as Bombay where the rents are abnormally high. Such disproportionate costs are not reflected in the AICPI is complied on an All India average of the prices of the items which go into the consumer basket. Hence it is not possible to accept the saidnone of the shipyards in the country are comparable to the Company either on the basis of the size of its operation or the nature of the work undertaken by it. Secondly, the business of the Company is unique not only in the country but also in the region. Hence the wage packets of the General Engineering concerns in the region cannot also be compared with those in the Company. Thirdly, what has to be compared is the totality of the service condition and not merely the wage packet. There is no material on record in that respect. For all these reasons, theformula cannot be applied in the resent case and certainly not for reducing the existing benefits. The Tribunal has, therefore, certainly erred in the applying the said formula.28. For introducing the new system, the Tribunal has further taken into consideration the fact that about 89% of the workmen in the public sector to which admittedly the Company belongs, are paid dearness allowance at the uniform rate as prescribed by the Public Bureau of Enterprises. The tribunal has, however, forgotten the fact that it was not introducing the dearness allowance system for the first time in the Company but was replacing the existing system. There is no doubt that the said consideration would have been valid if the Tribunal was called upon to formulate a dearness allowance system for introduction in the Company for the first time. When an adjudication body is called upon to replace the existing system, the first thing that it is required to consider is whether the system which is sought to be introduced is more or less beneficial to the workmen compared to the existing one. If it finds that the new system is less beneficial than or deprives the workmen of the benefits available in, the existing system, it has to stay its hands off the new system, unless of course there are compelling reasons to do so. Any consideration such as the uniformity with the other concerns is not a valid consideration for downgrading the existing benefits. The existing system of dearness allowance further, as stated earlier, is about 40 years old. It was introduced when some of the other public sector concerns had not even come into existence. The workmen cannot be deprived of their existing benefits on the ground that the other concerns give lesser benefits to their workmen. It is equally open for the workmen to argue that the need in such cases is to upgrade the service conditions in the other concerns, and not thefurther comments are, therefore, necessary on this contention.29. The Tribunal has also harped upon the fact that the existing dearness allowance system has a dual linkage both with the basic salary and the rise in the cost of living and it is this dual linkage which is responsible for giving the workers wages allegedly out of proportion to the increase in the cost of the basic necessities. In the first instance, it has to be remembered that the dual linkage is not unique to this Company. In fact, such system is prevalent in many other concerns. Even the recommendations of the Pay Commissions and the High Power Pay Committee are based on such dualare referring to these observations only for the purpose of pointing out that the reason given by the Tribunal for abolishing the slab system, namely the dual linkage, is not by itself a valid one. We have already pointed out that in spite of the dual linkage under the existing system, the neutralization of the cost of living for all workman involved in the Reference is less that 100% and varies between 88.98% and 97.05% at the minimum of the scales of pay and between 82.92% any 94.80% at the maximum. Hence, according to us, this reason by itself cannot furnish a ground for replacing the existing system.30. The further reason given by the Tribunal for replacing the existing system is that the existing system results in the ever widening of disparities in the minimum and maximum wages of the workmen in the different categories. In that connection, the Tribunal has referred to Exhibitwhich gives the number of workmen in different categories who received wages exceeding the salary received by their officers in the year 1983. According to that statement, about 2,539 workmen drew higher wages than the salary of the junior engineers and other equivalent ranks of officers. The Tribunal has further observed that the number of workmen receiving wages exceeding the salaries of the officers would go on increasing as a result of the present Dearness Allowance Formula and that such a state of affairs would be detrimental to industrial discipline. Before us, the Company produced yet another statement at pages 1205 to 1207 showing the total emoluments drawn in December, 1988 by officers and workmen/clerical staff working under them. The statement does show dispartities in the wage packets of the workmen and the officers. However, admittedly this statement was not before the Tribunal and as is rightly contended on behalf of the Union, the workmen had no opportunity to test the statement byBesides, as has been observed by the Division Bench in The Hindustan Lever case (supra) it is not enough to show that the wages received by the workmen are higher than theirThe wage disparities pointed out by the Company, therefore, will have to be examined in the light of what has been observed above. Neither the Tribunal nor the learned Single Judge has taken these factors into consideration. It is also necessary to observe in this connection that, with respect, we do not agree with the learned Judge that the disparities and distortions between the emoluments of the workmen and their superiors would not create discontent or problems of control and discipline. However, according to us, the disparities have to be established by applying the aforesaid tests. The argument based on disparities, therefore, cannot either be accepted or rejected off hand or on mere philosophical rhetorics. We are, therefore, of the view that this question requires serious reconsideration in the light of what has been held by the Division Bench in Hindustan Lever case (supra), as pointed out above. That can be done only giving an opportunity to both the parties to prove their respective case in that behalf. For that purpose the matter will have to be remanded to the Tribunal.32. Although the Company had not pleaded before the Tribunal that it was unable to bear the burden of the existing dearness allowance system, the Tribunal has referred to the Companys statement Exhibitgiving the figures of profits before tax for the years82 with yearwise additional burden "if the workmens demands" were granted. The result shown in that statement is that the Company would suffer during these years a net loss of Rs. 3,787.87appears that the General Manager of the Company had filed his affidavit dated January 7, 1987 before the learned Judge summarising its financial position for the years6. Before us, the same General Manager has filed his affidavit dated March 14, 1989 producing along with it up dated statement showing certain financial particulars of the Company since88 and also producing along with it,for the years88 to contend that the financial position of the Company has since undergone a change for theare afraid that this contention ignores that the documents have to be disseminated from different angels and in different light depending upon the purpose for which they are sought to be utilised.We are, therefore, of the view that while it is not possible to ignore the financial position of the Company as it is pleaded before us today, it is also not possible to accept the documents and the companys mere assertion in that behalf without giving an opportunity to the workmen to test the said documents byIt is, therefore, only fair that both sides should get an opportunity to prove their case on this aspectthe existing and the new wage structure, both old and new, including dearness allowance system. There is no doubt that if the Company is unable to bear the burden of the existing wage structure that will be one of the compelling reasons to modify or replace it.37. It must in fairness to the tribunal be observed that either the 4th Pay Commission Report not the High Power Pay Committee Report nor the Supreme Court decision in The Indian Hume Pipe case (supra) was before it when it gave the award. But it ignored some obvious considerations. The workman are not to be deprived of their existing benefits except for compelling reasons. The Tribunal was impressed by the uniform dearness allowance which neutralized the increase in the cost of only essential goods and services for all income groups. But the Tribunal forgot to find out whether the existing dearness allowance system which was giving more benefits to the workmenthe rise in the cost of living as indicated even by AICPI itself. That had to be found out by the method formulated by the Division Bench in its decision Hindustan Lever case (supra). Secondly, the tribunal did not examine the case sought to be made out by the Company on the basis of disparities in income from all angles. It merely accepted a bald table showing the wage packets of the different categories of workman and the staff. Lastly, the Company had not even leaded before it, its financial incapacity to bear the burden on account of the existing dearness allowance system which the Company wanted to replace. The bleak picture of its finances in future was painted by the Company in the context of the workmens demands which had nothing to do with the Companys demand. The Tribunal has not recorded its finding with regard to the Companys finances, even in the context of the workmens demands. These according to us are the errors apparent on the face of the award and it is for these reasons, and not necessarily for the reasons given by the learned Judge that an interference with the award was and is justified even in exercise of the writ jurisdiction.38. There is further no dispute that the Tribunal has revised the wage scales upward because it has replaced the existing system of dearness allowance by a new system. The learned Judge has, with respect, correctly pointed out that the new system of payment of dearness allowance is interlinked with the new pay scales, and since he was remanding the Companys demand for introducing new system of dearness allowance, it was also necessary to set aside the award with regard to the revision of the wage scales and remand it to the Tribunal. Since we are setting aside the new Dearness Allowance System for the reasons given above and since admittedly the new dearness allowance system and the newgranted are intimately interlinked and are dependent upon each other, it is only just and fair that the revision of pay scales granted by the Tribunal is also set aside and the workers demand in that behalf is also sent back to the tribunal for fresh consideration.39. The question whether there should be a replacement of the existing system of dearness allowance will have to be examined in the light of the two circumstances, namely distortions or the disparities in the incomes of the workmen and their superiors and the financial capacity of the Company to bear the burden of the existing system. Both parties should be given an opportunity to lead evidence and to test each others case in that behalf. If the Company succeeds in proving either of the circumstances, then a reconsideration of the existing pattern of the payment of dearness allowance may become necessary notwithstanding that there is noof the increase in the cost of living under the existing system and notwithstanding further that the existing system has been prevalent for a long time.40. The Respondent Association has filed an objection petition challenging the decision of the learned Judge with regard to the nucleus allowance, and overtime allowance claimed by the workmen in the Launches and Boats Department. The nucleus allowance was started as an incentive for workman primarily engaged in ship repair, to move over to the ship building work. The incentive was given to overcome the workmens reluctance to loseallowance which was available in ship repair work, but not in his building work. Since admittedly today the ship building predominates and the ship repair work is considerably reduced, there is no need for continuance of this allowance to compensate the loss of over time allowance. As observed by the learned Judge the raison detere for the nucleus allowance has thus disappeared and hence there is no need to continue it.We also do not find any reason to interfere with the denial of over time allowance for the workmen of the Launches and Boats Department. As has been observed by the tribunal and accepted by the learned Judge, a similar demand made in an earlier reference No. 126 of 1954 was rejected by the then Tribunal on the ground that the duties of the workmen involved were intermittent and leisurely in character as compared to the continuous and arduous nature of the work done by other workmen. The Associations contention in that behalf that the workmen in the Launches and Boats Department have to suffer long waits which cause as much fatigue as continuous work does not merit any consideration, since we are of the view that the alleged fatigue cause by such waits even if true, needs no additional compensation.The objection petition of the workmen, therefore, has to be rejected. | 1 | 23,808 | 4,978 | ### Instruction:
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accept the documents and the companys mere assertion in that behalf without giving an opportunity to the workmen to test the said documents by cross-examination. It is, therefore, only fair that both sides should get an opportunity to prove their case on this aspect vis-a-vis the existing and the new wage structure, both old and new, including dearness allowance system. There is no doubt that if the Company is unable to bear the burden of the existing wage structure that will be one of the compelling reasons to modify or replace it.37. It must in fairness to the tribunal be observed that either the 4th Pay Commission Report not the High Power Pay Committee Report nor the Supreme Court decision in The Indian Hume Pipe case (supra) was before it when it gave the award. But it ignored some obvious considerations. The workman are not to be deprived of their existing benefits except for compelling reasons. The Tribunal was impressed by the uniform dearness allowance which neutralized the increase in the cost of only essential goods and services for all income groups. But the Tribunal forgot to find out whether the existing dearness allowance system which was giving more benefits to the workmen over-neutralized the rise in the cost of living as indicated even by AICPI itself. That had to be found out by the method formulated by the Division Bench in its decision Hindustan Lever case (supra). Secondly, the tribunal did not examine the case sought to be made out by the Company on the basis of disparities in income from all angles. It merely accepted a bald table showing the wage packets of the different categories of workman and the staff. Lastly, the Company had not even leaded before it, its financial incapacity to bear the burden on account of the existing dearness allowance system which the Company wanted to replace. The bleak picture of its finances in future was painted by the Company in the context of the workmens demands which had nothing to do with the Companys demand. The Tribunal has not recorded its finding with regard to the Companys finances, even in the context of the workmens demands. These according to us are the errors apparent on the face of the award and it is for these reasons, and not necessarily for the reasons given by the learned Judge that an interference with the award was and is justified even in exercise of the writ jurisdiction.38. There is further no dispute that the Tribunal has revised the wage scales upward because it has replaced the existing system of dearness allowance by a new system. The learned Judge has, with respect, correctly pointed out that the new system of payment of dearness allowance is interlinked with the new pay scales, and since he was remanding the Companys demand for introducing new system of dearness allowance, it was also necessary to set aside the award with regard to the revision of the wage scales and remand it to the Tribunal. Since we are setting aside the new Dearness Allowance System for the reasons given above and since admittedly the new dearness allowance system and the new wage-scales granted are intimately interlinked and are dependent upon each other, it is only just and fair that the revision of pay scales granted by the Tribunal is also set aside and the workers demand in that behalf is also sent back to the tribunal for fresh consideration.39. The question whether there should be a replacement of the existing system of dearness allowance will have to be examined in the light of the two circumstances, namely distortions or the disparities in the incomes of the workmen and their superiors and the financial capacity of the Company to bear the burden of the existing system. Both parties should be given an opportunity to lead evidence and to test each others case in that behalf. If the Company succeeds in proving either of the circumstances, then a reconsideration of the existing pattern of the payment of dearness allowance may become necessary notwithstanding that there is no over-neutralization of the increase in the cost of living under the existing system and notwithstanding further that the existing system has been prevalent for a long time.40. The Respondent Association has filed an objection petition challenging the decision of the learned Judge with regard to the nucleus allowance, and overtime allowance claimed by the workmen in the Launches and Boats Department. The nucleus allowance was started as an incentive for workman primarily engaged in ship repair, to move over to the ship building work. The incentive was given to overcome the workmens reluctance to lose over-time allowance which was available in ship repair work, but not in his building work. Since admittedly today the ship building predominates and the ship repair work is considerably reduced, there is no need for continuance of this allowance to compensate the loss of over time allowance. As observed by the learned Judge the raison detere for the nucleus allowance has thus disappeared and hence there is no need to continue it.We also do not find any reason to interfere with the denial of over time allowance for the workmen of the Launches and Boats Department. As has been observed by the tribunal and accepted by the learned Judge, a similar demand made in an earlier reference No. 126 of 1954 was rejected by the then Tribunal on the ground that the duties of the workmen involved were intermittent and leisurely in character as compared to the continuous and arduous nature of the work done by other workmen. The Associations contention in that behalf that the workmen in the Launches and Boats Department have to suffer long waits which cause as much fatigue as continuous work does not merit any consideration, since we are of the view that the alleged fatigue cause by such waits even if true, needs no additional compensation.The objection petition of the workmen, therefore, has to be rejected.
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it is pleaded before us today, it is also not possible to accept the documents and the companys mere assertion in that behalf without giving an opportunity to the workmen to test the said documents byIt is, therefore, only fair that both sides should get an opportunity to prove their case on this aspectthe existing and the new wage structure, both old and new, including dearness allowance system. There is no doubt that if the Company is unable to bear the burden of the existing wage structure that will be one of the compelling reasons to modify or replace it.37. It must in fairness to the tribunal be observed that either the 4th Pay Commission Report not the High Power Pay Committee Report nor the Supreme Court decision in The Indian Hume Pipe case (supra) was before it when it gave the award. But it ignored some obvious considerations. The workman are not to be deprived of their existing benefits except for compelling reasons. The Tribunal was impressed by the uniform dearness allowance which neutralized the increase in the cost of only essential goods and services for all income groups. But the Tribunal forgot to find out whether the existing dearness allowance system which was giving more benefits to the workmenthe rise in the cost of living as indicated even by AICPI itself. That had to be found out by the method formulated by the Division Bench in its decision Hindustan Lever case (supra). Secondly, the tribunal did not examine the case sought to be made out by the Company on the basis of disparities in income from all angles. It merely accepted a bald table showing the wage packets of the different categories of workman and the staff. Lastly, the Company had not even leaded before it, its financial incapacity to bear the burden on account of the existing dearness allowance system which the Company wanted to replace. The bleak picture of its finances in future was painted by the Company in the context of the workmens demands which had nothing to do with the Companys demand. The Tribunal has not recorded its finding with regard to the Companys finances, even in the context of the workmens demands. These according to us are the errors apparent on the face of the award and it is for these reasons, and not necessarily for the reasons given by the learned Judge that an interference with the award was and is justified even in exercise of the writ jurisdiction.38. There is further no dispute that the Tribunal has revised the wage scales upward because it has replaced the existing system of dearness allowance by a new system. The learned Judge has, with respect, correctly pointed out that the new system of payment of dearness allowance is interlinked with the new pay scales, and since he was remanding the Companys demand for introducing new system of dearness allowance, it was also necessary to set aside the award with regard to the revision of the wage scales and remand it to the Tribunal. Since we are setting aside the new Dearness Allowance System for the reasons given above and since admittedly the new dearness allowance system and the newgranted are intimately interlinked and are dependent upon each other, it is only just and fair that the revision of pay scales granted by the Tribunal is also set aside and the workers demand in that behalf is also sent back to the tribunal for fresh consideration.39. The question whether there should be a replacement of the existing system of dearness allowance will have to be examined in the light of the two circumstances, namely distortions or the disparities in the incomes of the workmen and their superiors and the financial capacity of the Company to bear the burden of the existing system. Both parties should be given an opportunity to lead evidence and to test each others case in that behalf. If the Company succeeds in proving either of the circumstances, then a reconsideration of the existing pattern of the payment of dearness allowance may become necessary notwithstanding that there is noof the increase in the cost of living under the existing system and notwithstanding further that the existing system has been prevalent for a long time.40. The Respondent Association has filed an objection petition challenging the decision of the learned Judge with regard to the nucleus allowance, and overtime allowance claimed by the workmen in the Launches and Boats Department. The nucleus allowance was started as an incentive for workman primarily engaged in ship repair, to move over to the ship building work. The incentive was given to overcome the workmens reluctance to loseallowance which was available in ship repair work, but not in his building work. Since admittedly today the ship building predominates and the ship repair work is considerably reduced, there is no need for continuance of this allowance to compensate the loss of over time allowance. As observed by the learned Judge the raison detere for the nucleus allowance has thus disappeared and hence there is no need to continue it.We also do not find any reason to interfere with the denial of over time allowance for the workmen of the Launches and Boats Department. As has been observed by the tribunal and accepted by the learned Judge, a similar demand made in an earlier reference No. 126 of 1954 was rejected by the then Tribunal on the ground that the duties of the workmen involved were intermittent and leisurely in character as compared to the continuous and arduous nature of the work done by other workmen. The Associations contention in that behalf that the workmen in the Launches and Boats Department have to suffer long waits which cause as much fatigue as continuous work does not merit any consideration, since we are of the view that the alleged fatigue cause by such waits even if true, needs no additional compensation.The objection petition of the workmen, therefore, has to be rejected.
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Arvindbhai Bhagabhai Patel & Others Vs. State of Gujarat & Others | think it necessary to take so restrictive a view of the provisions of Sections 11 and 13 of the Evidence Act as to exclude such judgments altogether from evidence even when good grounds are made out for their admission. In Khaja Fizuddin v. State of Andhra Pradesh (C.A. No. 176 of 1962, decided on April 10, 1963), a Bench of three Judges of this Court held such judgments to be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.28. The Karnataka High Court had, however, not complied with provisions of Order 41, Rule 27 of the CPC which require that an appellate court should be satisfied that the additional evidence is required to enable it either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27 Order 41 of the CPC We are of opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence.29. The result is that we allow these appeals and set aside the judgment and order of the Karnataka High Court and direct it to decide the cases afresh on evidence on record, so as to determine the market value of the land acquired on the date of the notification under Section 16 of the Bangalore Act. It will also decide the question, after affording parties opportunities to lead necessary evidence, whether the judgment, sought to be offered as additional evidence, could be admitted.(Emphasis supplied)8. This Court has laid down that judgment/ Award can be received in evidence only after affording an opportunity of rebuttal to the opposite party by way of adducing evidence. At the stage of appeal, if Award/judgment has to be read in evidence, an application has to be filed under Order 41, Rule 27 of the Act to take additional evidence on record, and if allowed, opportunity to lead evidence in rebuttal has to be afforded. Thus, in the present case, the Award that had been passed with respect to the 1993 acquisition, could not have been taken into consideration by the High Court.9. In Karan Singh & Ors. v. Union of India 1997(4) R.C.R.(Civil) 288 : [1997 (8) SCC 186 ], this Court has held, that evidence has to be adduced, to show similarity of the land in question to the one covered by previous judgment/Award, before the same is relied upon. This Court has laid down in Karan Singhs case (supra) as follows:"8. Learned counsel for the appellants then urged that the High Court erroneously discarded Ext. A-11 which was an award in respect of a land at Village Jhilmil Tahirpur on the ground that it was not a previous judgment of the Court. The land comprised in the award was acquired under notification issued under Section 4 of the Act on 27-7-1981. By the said award, the Court awarded compensation @ Rs. 625 per sq. yd. It has earlier been seen that in the present case the notification issued under Section 4 of the Act was earlier in point of time than the notification issued for acquisition of land comprised in Ext. A-11. There is no quarrel with the proposition that judgments of courts in land acquisition cases or awards given by the Land Acquisition Officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances. One of the circumstances being that such an award or judgment of the court of law must be a previous judgment. In the case of Pal Singh v. Union Territory of Chandigarh(1992) 4 SCC 400 , it was observed thus: (SCC pp. 402-03, para 5)"But what cannot be overlooked is, that for a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deduced, must have been a previous judgment of court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquired land."Following this decision, we hold that it is only the previous judgment of a court or an award which can be made the basis for assessment of the market value of the acquired land subject to party relying on such judgment to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value of acquired land."(emphasis supplied)10. This Court has also reiterated in the Special Land Acquisition Officer, Mysore Urban Development Authority v. Sakamma [2010 (14) SCC 503 ], that in the absence of evidence as to comparable land, Award/judgment in another case cannot be accepted.11. That being the position of law, in our opinion, the High Court has wrongly taken into consideration the Award passed in the case of the village Sargasan. Even if it were to be taken into consideration, the same could not have been formed the basis by the High Court for determining the compensation, as the Award, with respect to the same village, in closer proximity of time, was available in the instant case. It was not safe to rely upon the Award with respect to a different village, that too in which, acquisition had been made 11 years before. Even if this Award is taken into consideration, reliance on the same could not be said to be permissible and in accordance with law as other better evidence was on record. | 1[ds]6. In our opinion, in the absence of comparative sale exemplar evidence, the best evidence, in this case, was the Award in the case of ONGC of the same village. That Award too was based upon the acquisitions that had been made in the same village. The price determined by the High Court on the basis of Award passed in the year 1993 was not in close proximity of time. The village was at distance from Mansa. The distance from Gandinagar was not of much consequence in the instant case. As to what was the development in the particular village, in the particular area, was required to have been taken into consideration, and also, as to what price prevailed as per the evidence of Award/judgment that had been placed on record. Obviously, some cut was required to have been applied, as the prior acquisition had been of small piece of land, i.e., 2000 square meters, made in the year 1999, for the purposes of drill site established by ONGC.7. In our opinion, in the absence of an application having been filed under Order 41, Rule 27 of the Code of Civil Procedure, 1908, it was not permissible for the High Court to take into consideration the Award that had been passed with respect to village Sargasan, as held by this Court in The Land Acquisition Officer, City Improvement Trust Board v. H. Narayanaiah & Ors. [1976 (4) SCC 9 ].This Court has laid down that judgment/ Award can be received in evidence only after affording an opportunity of rebuttal to the opposite party by way of adducing evidence. At the stage of appeal, if Award/judgment has to be read in evidence, an application has to be filed under Order 41, Rule 27 of the Act to take additional evidence on record, and if allowed, opportunity to lead evidence in rebuttal has to be afforded. Thus, in the present case, the Award that had been passed with respect to the 1993 acquisition, could not have been taken into consideration by the High Court.That being the position of law, in our opinion, the High Court has wrongly taken into consideration the Award passed in the case of the village Sargasan. Even if it were to be taken into consideration, the same could not have been formed the basis by the High Court for determining the compensation, as the Award, with respect to the same village, in closer proximity of time, was available in the instant case. It was not safe to rely upon the Award with respect to a different village, that too in which, acquisition had been made 11 years before. Even if this Award is taken into consideration, reliance on the same could not be said to be permissible and in accordance with law as other better evidence was on record. | 1 | 2,577 | 532 | ### 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:
think it necessary to take so restrictive a view of the provisions of Sections 11 and 13 of the Evidence Act as to exclude such judgments altogether from evidence even when good grounds are made out for their admission. In Khaja Fizuddin v. State of Andhra Pradesh (C.A. No. 176 of 1962, decided on April 10, 1963), a Bench of three Judges of this Court held such judgments to be relevant if they relate to similarly situated properties and contain determinations of value on dates fairly proximate to the relevant date in a case.28. The Karnataka High Court had, however, not complied with provisions of Order 41, Rule 27 of the CPC which require that an appellate court should be satisfied that the additional evidence is required to enable it either to pronounce judgment or for any other substantial cause. It had recorded no reasons to show that it had considered the requirements of Rule 27 Order 41 of the CPC We are of opinion that the High Court should have recorded its reasons to show why it found the admission of such evidence to be necessary for some substantial reason. And if it found it necessary to admit it, an opportunity should have been given to the appellant to rebut any inference arising from its existence by leading other evidence.29. The result is that we allow these appeals and set aside the judgment and order of the Karnataka High Court and direct it to decide the cases afresh on evidence on record, so as to determine the market value of the land acquired on the date of the notification under Section 16 of the Bangalore Act. It will also decide the question, after affording parties opportunities to lead necessary evidence, whether the judgment, sought to be offered as additional evidence, could be admitted.(Emphasis supplied)8. This Court has laid down that judgment/ Award can be received in evidence only after affording an opportunity of rebuttal to the opposite party by way of adducing evidence. At the stage of appeal, if Award/judgment has to be read in evidence, an application has to be filed under Order 41, Rule 27 of the Act to take additional evidence on record, and if allowed, opportunity to lead evidence in rebuttal has to be afforded. Thus, in the present case, the Award that had been passed with respect to the 1993 acquisition, could not have been taken into consideration by the High Court.9. In Karan Singh & Ors. v. Union of India 1997(4) R.C.R.(Civil) 288 : [1997 (8) SCC 186 ], this Court has held, that evidence has to be adduced, to show similarity of the land in question to the one covered by previous judgment/Award, before the same is relied upon. This Court has laid down in Karan Singhs case (supra) as follows:"8. Learned counsel for the appellants then urged that the High Court erroneously discarded Ext. A-11 which was an award in respect of a land at Village Jhilmil Tahirpur on the ground that it was not a previous judgment of the Court. The land comprised in the award was acquired under notification issued under Section 4 of the Act on 27-7-1981. By the said award, the Court awarded compensation @ Rs. 625 per sq. yd. It has earlier been seen that in the present case the notification issued under Section 4 of the Act was earlier in point of time than the notification issued for acquisition of land comprised in Ext. A-11. There is no quarrel with the proposition that judgments of courts in land acquisition cases or awards given by the Land Acquisition Officers can be relied upon as a good piece of evidence for determining the market value of the land acquired under certain circumstances. One of the circumstances being that such an award or judgment of the court of law must be a previous judgment. In the case of Pal Singh v. Union Territory of Chandigarh(1992) 4 SCC 400 , it was observed thus: (SCC pp. 402-03, para 5)"But what cannot be overlooked is, that for a judgment relating to value of land to be admitted in evidence either as an instance or as one from which the market value of the acquired land could be inferred or deduced, must have been a previous judgment of court and as an instance, it must have been proved by the person relying upon such judgment by adducing evidence aliunde that due regard being given to all attendant facts and circumstances, it could furnish the basis for determining the market value of the acquired land."Following this decision, we hold that it is only the previous judgment of a court or an award which can be made the basis for assessment of the market value of the acquired land subject to party relying on such judgment to adduce evidence for showing that due regard being given to all attendant facts it could form the basis for fixing the market value of acquired land."(emphasis supplied)10. This Court has also reiterated in the Special Land Acquisition Officer, Mysore Urban Development Authority v. Sakamma [2010 (14) SCC 503 ], that in the absence of evidence as to comparable land, Award/judgment in another case cannot be accepted.11. That being the position of law, in our opinion, the High Court has wrongly taken into consideration the Award passed in the case of the village Sargasan. Even if it were to be taken into consideration, the same could not have been formed the basis by the High Court for determining the compensation, as the Award, with respect to the same village, in closer proximity of time, was available in the instant case. It was not safe to rely upon the Award with respect to a different village, that too in which, acquisition had been made 11 years before. Even if this Award is taken into consideration, reliance on the same could not be said to be permissible and in accordance with law as other better evidence was on record.
### Response:
1
### Explanation:
6. In our opinion, in the absence of comparative sale exemplar evidence, the best evidence, in this case, was the Award in the case of ONGC of the same village. That Award too was based upon the acquisitions that had been made in the same village. The price determined by the High Court on the basis of Award passed in the year 1993 was not in close proximity of time. The village was at distance from Mansa. The distance from Gandinagar was not of much consequence in the instant case. As to what was the development in the particular village, in the particular area, was required to have been taken into consideration, and also, as to what price prevailed as per the evidence of Award/judgment that had been placed on record. Obviously, some cut was required to have been applied, as the prior acquisition had been of small piece of land, i.e., 2000 square meters, made in the year 1999, for the purposes of drill site established by ONGC.7. In our opinion, in the absence of an application having been filed under Order 41, Rule 27 of the Code of Civil Procedure, 1908, it was not permissible for the High Court to take into consideration the Award that had been passed with respect to village Sargasan, as held by this Court in The Land Acquisition Officer, City Improvement Trust Board v. H. Narayanaiah & Ors. [1976 (4) SCC 9 ].This Court has laid down that judgment/ Award can be received in evidence only after affording an opportunity of rebuttal to the opposite party by way of adducing evidence. At the stage of appeal, if Award/judgment has to be read in evidence, an application has to be filed under Order 41, Rule 27 of the Act to take additional evidence on record, and if allowed, opportunity to lead evidence in rebuttal has to be afforded. Thus, in the present case, the Award that had been passed with respect to the 1993 acquisition, could not have been taken into consideration by the High Court.That being the position of law, in our opinion, the High Court has wrongly taken into consideration the Award passed in the case of the village Sargasan. Even if it were to be taken into consideration, the same could not have been formed the basis by the High Court for determining the compensation, as the Award, with respect to the same village, in closer proximity of time, was available in the instant case. It was not safe to rely upon the Award with respect to a different village, that too in which, acquisition had been made 11 years before. Even if this Award is taken into consideration, reliance on the same could not be said to be permissible and in accordance with law as other better evidence was on record.
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UNION OF INDIA Vs. PRADEEP VINOD CONSTRUCTION CO | 10 SCC 504, Union of India and another v. V.S. Engineering (P) Ltd. (2006) 13 SCC 240 , Union of India v. Singh Builders Syndicate (2009) 4 SCC 523 and in a catena of judgments, the court held that whenever the agreement specifically provides for appointment of named arbitrators, the appointment of arbitrator should be in terms of the contract. After referring to M.P. Gupta, in V.S. Engineering, it was held as under:-3. The learned Additional Solicitor General appearing for the appellant Union of India has pointed out that as per clauses 63 and 64 of the General Conditions of Contract, this Court in no uncertain terms has held that the Arbitral Tribunal has to be constituted as per the General Conditions of Contract, the High Court should not interfere under Section 11 of the Act and the High Court should accept the Arbitral Tribunal appointed by the General Manager, Railways. In this connection, the learned ASG invited our attention to a decision of this Court directly bearing on the subject in Union of India v. M.P. Gupta (2004) 10 SCC 504 wherein a similar question with regard to appointment of the Arbitral Tribunal for the Railways with reference to clause 64 of the General Conditions of Contract came up before this Court and this Court held that where two gazetted railway officers are appointed as the Arbitral Tribunal, the High Court should not appoint a retired Judge of the High Court as a sole arbitrator and the appointment of sole arbitrator was set aside. The conditions of clauses 63 and 64 of the General Conditions of Contract are almost analogous to the one we have in our hand. In that case also relying on clause 64 of the contract a three-Judge Bench presided over by the Chief Justice of India observed as follows: (SCC p. 505, para 4)?4. In view of the express provision contained therein that two gazetted railway officers shall be appointed as arbitrators, Justice P.K. Bahri could not be appointed by the High Court as the sole arbitrator. On this short ground alone, the judgment and order under challenge to the extent it appoints Justice P.K. Bahri as sole arbitrator is set aside. Within 30 days from today, the appellants herein shall appoint two gazetted railway officers as arbitrators. The two newly appointed arbitrators shall enter into reference within a period of another one month and thereafter the arbitrators shall make their award within a period of three months.? The court, however observed in para (6) that in the case of public institutions which are slow in responding to the request made by the contractor for appointment of an arbitrator, the power of the High Court to appoint an arbitrator under Section 11 is not taken away. The failure of the authorities in appointing an arbitrator and when the contractor approached the court for appointment of an arbitrator under Section 11 of the Act, it will then be in the discretion of the Chief Justice/designated Judge to appoint a railway officer as per the contract or a High Court Judge. 15. Considering the various matters of railway contracts and setting aside the appointment of independent arbitrators, after referring to M.P. Gupta and V.S. Engineering and other judgments, in Parmar Construction Company, this Court set aside the appointment of the independent arbitrator and directed the General Manager of the Railways to appoint arbitrator in terms of Clause 64(3) of the agreement. In paras (44) and (45), this Court held as under:-?44. To conclude, in our considered view, the High Court was not justified in appointing an independent arbitrator without resorting to the procedure for appointment of an arbitrator which has been prescribed under Clause 64(3) of the contract under the inbuilt mechanism as agreed by the parties. 45. Consequently, the orders passed by the High Court are quashed and set aside. The Appellants are directed to appoint the arbitrator in terms of Clause 64(3) of the agreement within a period of one month from today under intimation to each of the Respondents/contractors and since sufficient time has been consumed, at the first stage itself, in the appointment of an arbitrator and majority of the Respondents being the petty contractors, the statement of claim be furnished by each of the Respondents within four weeks thereafter and the arbitrator may decide the claim after affording opportunity of hearing to the parties expeditiously without being influenced/inhibited by the observations made independently in accordance with law.? The ratio of the above decision squarely applies to the case in hand. When the agreement specifically provides for appointment of named arbitrators, the appointment should be in terms of the agreement. The High Court, in our view, was not right in appointing an independent arbitrator ignoring Clause 64 of the General Conditions of Contract. 16. Insofar as the plea of the appellant that there was settlement of final bill/issuance of ?No Claim? letter, the learned counsel for the appellant has drawn our attention on Clause 43(2) – Signing of the ?No Claim? Certificate and submitted that as per Clause 43(2), the contractor signs a ?No Claim? certificate in favour of the railway in the prescribed format after the work is finally measured up and the contractor shall be debarred from disputing the correctness of the items covered under the ?No Claim? certificate or demanding a clearance to arbitration in respect thereof. On behalf of the respondent, it has been seriously disputed that issuance of ?No Claim? certificate as to the supplementary agreement recording accord and satisfaction as on 06.05.2014 (CA No.6400/2016) and issuance of ?No Claim? certificate on 28.08.2014 (CA No.6420/2016) that they were issued under compulsion and due to undue influence by the railway authorities. We are not inclined to go into the merits of the contention of the parties. It is for the arbitrator to consider the claim of the respondent(s) and the stand of the appellant-railways. This contention raised by the parties are left open to be raised before the arbitrator. | 1[ds]10. The respondent(s) are registered contractors with the Railways and they are claiming certain payments on account of the work entrusted to them. The request of the respondent(s) for appointment of arbitrator invoking Clause 64 of the contract was declined by the Railways stating that their claims have been settled and the respondent(s) have issued ?No Claim? certificate and executed supplementary agreement recording ?accord and satisfaction? and hence, the matter is not referable to arbitration. Admittedly, the request for referring the dispute was made much prior to the Amendment Act, 2015 which came into force w.e.f. 23.10.2015. Since the request for appointment of arbitrator was made much prior to the Amendment Act, 2015 (w.e.f. 23.10.2015), the provision of the Amended Act, 2015 shall not apply to the arbitral proceedings in terms of Section 21 of the Act unless the parties otherwise agree. As rightlypointed out by the learned counsel for the appellant, the request by the respondent(s)- contractors is to be examined in accordance with the Principal Act, 1996 without taking resort to the Amendment Act, 2015.The ratio of the above decision squarely applies to the case in hand. When the agreement specifically provides for appointment of named arbitrators, the appointment should be in terms of the agreement. The High Court, in our view, was not right in appointing an independent arbitrator ignoring Clause 64 of the General Conditions of ContractWe are not inclined to go into the merits of the contention of the parties. It is for the arbitrator to consider the claim of the respondent(s) and the stand of the appellant-railways. This contention raised by the parties are left open to be raised before the arbitrator. | 1 | 3,718 | 328 | ### 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:
10 SCC 504, Union of India and another v. V.S. Engineering (P) Ltd. (2006) 13 SCC 240 , Union of India v. Singh Builders Syndicate (2009) 4 SCC 523 and in a catena of judgments, the court held that whenever the agreement specifically provides for appointment of named arbitrators, the appointment of arbitrator should be in terms of the contract. After referring to M.P. Gupta, in V.S. Engineering, it was held as under:-3. The learned Additional Solicitor General appearing for the appellant Union of India has pointed out that as per clauses 63 and 64 of the General Conditions of Contract, this Court in no uncertain terms has held that the Arbitral Tribunal has to be constituted as per the General Conditions of Contract, the High Court should not interfere under Section 11 of the Act and the High Court should accept the Arbitral Tribunal appointed by the General Manager, Railways. In this connection, the learned ASG invited our attention to a decision of this Court directly bearing on the subject in Union of India v. M.P. Gupta (2004) 10 SCC 504 wherein a similar question with regard to appointment of the Arbitral Tribunal for the Railways with reference to clause 64 of the General Conditions of Contract came up before this Court and this Court held that where two gazetted railway officers are appointed as the Arbitral Tribunal, the High Court should not appoint a retired Judge of the High Court as a sole arbitrator and the appointment of sole arbitrator was set aside. The conditions of clauses 63 and 64 of the General Conditions of Contract are almost analogous to the one we have in our hand. In that case also relying on clause 64 of the contract a three-Judge Bench presided over by the Chief Justice of India observed as follows: (SCC p. 505, para 4)?4. In view of the express provision contained therein that two gazetted railway officers shall be appointed as arbitrators, Justice P.K. Bahri could not be appointed by the High Court as the sole arbitrator. On this short ground alone, the judgment and order under challenge to the extent it appoints Justice P.K. Bahri as sole arbitrator is set aside. Within 30 days from today, the appellants herein shall appoint two gazetted railway officers as arbitrators. The two newly appointed arbitrators shall enter into reference within a period of another one month and thereafter the arbitrators shall make their award within a period of three months.? The court, however observed in para (6) that in the case of public institutions which are slow in responding to the request made by the contractor for appointment of an arbitrator, the power of the High Court to appoint an arbitrator under Section 11 is not taken away. The failure of the authorities in appointing an arbitrator and when the contractor approached the court for appointment of an arbitrator under Section 11 of the Act, it will then be in the discretion of the Chief Justice/designated Judge to appoint a railway officer as per the contract or a High Court Judge. 15. Considering the various matters of railway contracts and setting aside the appointment of independent arbitrators, after referring to M.P. Gupta and V.S. Engineering and other judgments, in Parmar Construction Company, this Court set aside the appointment of the independent arbitrator and directed the General Manager of the Railways to appoint arbitrator in terms of Clause 64(3) of the agreement. In paras (44) and (45), this Court held as under:-?44. To conclude, in our considered view, the High Court was not justified in appointing an independent arbitrator without resorting to the procedure for appointment of an arbitrator which has been prescribed under Clause 64(3) of the contract under the inbuilt mechanism as agreed by the parties. 45. Consequently, the orders passed by the High Court are quashed and set aside. The Appellants are directed to appoint the arbitrator in terms of Clause 64(3) of the agreement within a period of one month from today under intimation to each of the Respondents/contractors and since sufficient time has been consumed, at the first stage itself, in the appointment of an arbitrator and majority of the Respondents being the petty contractors, the statement of claim be furnished by each of the Respondents within four weeks thereafter and the arbitrator may decide the claim after affording opportunity of hearing to the parties expeditiously without being influenced/inhibited by the observations made independently in accordance with law.? The ratio of the above decision squarely applies to the case in hand. When the agreement specifically provides for appointment of named arbitrators, the appointment should be in terms of the agreement. The High Court, in our view, was not right in appointing an independent arbitrator ignoring Clause 64 of the General Conditions of Contract. 16. Insofar as the plea of the appellant that there was settlement of final bill/issuance of ?No Claim? letter, the learned counsel for the appellant has drawn our attention on Clause 43(2) – Signing of the ?No Claim? Certificate and submitted that as per Clause 43(2), the contractor signs a ?No Claim? certificate in favour of the railway in the prescribed format after the work is finally measured up and the contractor shall be debarred from disputing the correctness of the items covered under the ?No Claim? certificate or demanding a clearance to arbitration in respect thereof. On behalf of the respondent, it has been seriously disputed that issuance of ?No Claim? certificate as to the supplementary agreement recording accord and satisfaction as on 06.05.2014 (CA No.6400/2016) and issuance of ?No Claim? certificate on 28.08.2014 (CA No.6420/2016) that they were issued under compulsion and due to undue influence by the railway authorities. We are not inclined to go into the merits of the contention of the parties. It is for the arbitrator to consider the claim of the respondent(s) and the stand of the appellant-railways. This contention raised by the parties are left open to be raised before the arbitrator.
### Response:
1
### Explanation:
10. The respondent(s) are registered contractors with the Railways and they are claiming certain payments on account of the work entrusted to them. The request of the respondent(s) for appointment of arbitrator invoking Clause 64 of the contract was declined by the Railways stating that their claims have been settled and the respondent(s) have issued ?No Claim? certificate and executed supplementary agreement recording ?accord and satisfaction? and hence, the matter is not referable to arbitration. Admittedly, the request for referring the dispute was made much prior to the Amendment Act, 2015 which came into force w.e.f. 23.10.2015. Since the request for appointment of arbitrator was made much prior to the Amendment Act, 2015 (w.e.f. 23.10.2015), the provision of the Amended Act, 2015 shall not apply to the arbitral proceedings in terms of Section 21 of the Act unless the parties otherwise agree. As rightlypointed out by the learned counsel for the appellant, the request by the respondent(s)- contractors is to be examined in accordance with the Principal Act, 1996 without taking resort to the Amendment Act, 2015.The ratio of the above decision squarely applies to the case in hand. When the agreement specifically provides for appointment of named arbitrators, the appointment should be in terms of the agreement. The High Court, in our view, was not right in appointing an independent arbitrator ignoring Clause 64 of the General Conditions of ContractWe are not inclined to go into the merits of the contention of the parties. It is for the arbitrator to consider the claim of the respondent(s) and the stand of the appellant-railways. This contention raised by the parties are left open to be raised before the arbitrator.
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M/S. L&T HOUSING FINANCE LIMITED Vs. M/S. TRISHUL DEVELOPERS AND ANR | appellant vide sanction letter dated 07th August, 2015 (P1), the letterhead which was used for the purpose clearly indicates that on the top of the letterhead towards right, it reflects L&T Finance (Home Loans) and on the bottom towards left, is of L&T Housing Finance Ltd. with their registered office in Mumbai and this has been duly signed by the authorised signatory of the borrower for M/s. Trishul Developers and by its guarantors. 16. It manifests from the record that the respondents from the initial stage are aware of the procedure which is being followed by the appellant in its correspondence while dealing with its customers and that is the same practice being followed by the appellant when demand notice dated 16th December, 2016 was served at a later stage. The demand notice in explicit terms clearly indicates the execution of the Facility Agreement dated 11th August, 2015 between the appellant (L&T Housing Finance Ltd.) and the respondents (M/s. Trishul Developers through its partners) and of the default being committed by the respondents (borrower/guarantor) in furtherance thereof, a notice under Section 13(2) of the SARFAESI Act was served on the same pattern of the letterhead which is being ordinarily used by the appellant in its correspondence with its customers and the demand notice dated 14th June, 2017 without leaving any iota of doubt is in reference to the non-fulfillment of the terms and conditions of the Facility Agreement dated 11th August, 2015 executed between the parties and even the schedule of security profile which has been annexed thereto is in reference to the execution of Facility Agreement dated 11th August, 2015 and its non-compliance of the provisions of the SARFAESI Act. 17. Even in the reply to the demand notice which was served by the respondents through their counsel dated 08th August, 2017 in compliance to Section 13(3A) of the SARFAESI Act, there was no confusion left in reference to the correspondence taken place between the appellant (secured creditor) and the respondents (borrower) tendering their justification and assigning reasons for which compliance could not have been made and no objection was indeed raised by the respondents in regard to the defect if any, in the demand notice dated 14th June, 2017 which was served by the secured creditor i.e. L&T Housing Finance Ltd. in compliance to the provisions of the SARFAESI Act or in furtherance to the proceedings initiated at the behest of the appellant under Section 13(4) read with Section 14 of the Act, for the first time, a feeble attempt was made in raising the alleged technical objection in a Securitisation Application filed before the DRT and succeeded. 18. It may be relevant to note that the respondents (borrower) did not deny advancement of loan, execution of Facility Agreement, their liability and compliance of the procedure being followed by the secured creditor (appellant) prescribed under the SARFAESI Act. 19. In the facts and circumstances, when the action has been taken by the competent authority as per the procedure prescribed by law and the person affected has a knowledge leaving no ambiguity or confusion in initiating proceedings under the provisions of the SARFAESI Act by the secured creditor, in our considered view, such action taken thereof cannot be held to be bad in law merely on raising a trivial objection which has no legs to stand unless the person is able to show any substantial prejudice being caused on account of the procedural lapse as prescribed under the Act or the rules framed thereunder still with a caveat that it always depends upon the facts of each case to decipher the nature of the procedural lapse being complained of and the resultant prejudiced if any, being caused and there cannot be a straitjacket formula which can be uniformly followed in all the transactions. 20. Adverting to facts of the instant case, we are of the view that the objection raised by the respondents was trivial and technical in nature and the appellant (secured creditor) has complied with the procedure prescribed under the SARFAESI Act. At the same time, the objection raised by the respondents in the first instance, at the stage of filing of a Securitisation Application before DRT under the SARFAESI Act is a feeble attempt which has persuaded the Tribunal and the High Court to negate the proceedings initiated by the appellant under the SARFAESI Act, is unsustainable more so, when the respondents are unable to justify the error in the procedure being followed by the appellant (secured creditor) to be complied with in initiating proceedings under the SARFAESI Act. 21. The submission made by the respondents counsel that the notice under Section 13(2) of the Act was served by the authorised signatory of L&T Finance Ltd. and that was not the secured creditor in the facts of the case, in our considered view, is wholly without substance for the reason that L&T Finance Ltd. and L&T Housing Finance Ltd. are the companies who in their correspondence with all its customers use a common letterhead having their self-same authorised signatory, as being manifest from the record and it is the seal being put at one stage by the authorised signatory due to some human error of L&T Finance Ltd. in place of L&T Housing Finance Ltd.. More so, when it is not the case of the respondents that there was any iota of confusion in their knowledge regarding the action being initiated in the instant case other than the secured creditor under the SARFAESI Act for non-fulfillment of the terms and conditions of the Facility Agreement dated 11th August, 2015 or any substantial prejudice being caused apart from the technical objection being raised while the demand notice under Section 13(2) was served under the SARFAESI Act or in the proceedings in furtherance thereof no interference by the High Court in its limited scope of judicial review was called for. Consequently, in our view, the judgment of the High Court is unsustainable and deserves to be set aside. | 1[ds]14. The indisputed fact which emerges from the record is that the respondents borrowed a term loan from the appellant (L&T Housing Finance Ltd.) of Rs.20 crores vide sanction letter dated 07th August, 2015 and later their account became NPA on 15th April, 2017 and prior thereto, the appellant (secured creditor) served a notice on 16th December, 2016 demanding its outstanding dues sanctioned under the seal of their authorised officer on behalf of the lender, which has been informed to this Court was a self- same authorised signatory of both the companies namely L&T Housing Finance Ltd. and L&T Finance Ltd. Indisputedly, the notice under Section 13(2) of the SARFAESI Act was served by the authorised signatory on behalf of the appellant on the letterhead commonly used by L&T Housing Finance Ltd. and L&T Finance Ltd. but inadvertently, the authorised signatory put his signature under the seal of the company L&T Finance Ltd. In this backdrop, from reply dated 08th August, 2017 of the respondents, it becomes clear that repayment was demanded by the appellant(secured creditor) only and the respondents tried to justify and assigned reasons for which the Facility Agreement dated 11th August, 2015 could not have been carried out and only thereafter, the appellant (secured creditor) has initiated further proceedings under Section 13(4) read with Section 14 of the Act.15. Notably from the very inception at the stage, when the proposal of taking a term loan from the appellant was furnished by the respondents vide their application dated 15th May, 2015 and accepted by the appellant vide sanction letter dated 07th August, 2015 (P1), the letterhead which was used for the purpose clearly indicates that on the top of the letterhead towards right, it reflects L&T Finance (Home Loans) and on the bottom towards left, is of L&T Housing Finance Ltd. with their registered office in Mumbai and this has been duly signed by the authorised signatory of the borrower for M/s. Trishul Developers and by its guarantors.16. It manifests from the record that the respondents from the initial stage are aware of the procedure which is being followed by the appellant in its correspondence while dealing with its customers and that is the same practice being followed by the appellant when demand notice dated 16th December, 2016 was served at a later stage. The demand notice in explicit terms clearly indicates the execution of the Facility Agreement dated 11th August, 2015 between the appellant (L&T Housing Finance Ltd.) and the respondents (M/s. Trishul Developers through its partners) and of the default being committed by the respondents (borrower/guarantor) in furtherance thereof, a notice under Section 13(2) of the SARFAESI Act was served on the same pattern of the letterhead which is being ordinarily used by the appellant in its correspondence with its customers and the demand notice dated 14th June, 2017 without leaving any iota of doubt is in reference to the non-fulfillment of the terms and conditions of the Facility Agreement dated 11th August, 2015 executed between the parties and even the schedule of security profile which has been annexed thereto is in reference to the execution of Facility Agreement dated 11th August, 2015 and its non-compliance of the provisions of the SARFAESI Act.17. Even in the reply to the demand notice which was served by the respondents through their counsel dated 08th August, 2017 in compliance to Section 13(3A) of the SARFAESI Act, there was no confusion left in reference to the correspondence taken place between the appellant (secured creditor) and the respondents (borrower) tendering their justification and assigning reasons for which compliance could not have been made and no objection was indeed raised by the respondents in regard to the defect if any, in the demand notice dated 14th June, 2017 which was served by the secured creditor i.e. L&T Housing Finance Ltd. in compliance to the provisions of the SARFAESI Act or in furtherance to the proceedings initiated at the behest of the appellant under Section 13(4) read with Section 14 of the Act, for the first time, a feeble attempt was made in raising the alleged technical objection in a Securitisation Application filed before the DRT and succeeded.18. It may be relevant to note that the respondents (borrower) did not deny advancement of loan, execution of Facility Agreement, their liability and compliance of the procedure being followed by the secured creditor (appellant) prescribed under the SARFAESI Act.19. In the facts and circumstances, when the action has been taken by the competent authority as per the procedure prescribed by law and the person affected has a knowledge leaving no ambiguity or confusion in initiating proceedings under the provisions of the SARFAESI Act by the secured creditor, in our considered view, such action taken thereof cannot be held to be bad in law merely on raising a trivial objection which has no legs to stand unless the person is able to show any substantial prejudice being caused on account of the procedural lapse as prescribed under the Act or the rules framed thereunder still with a caveat that it always depends upon the facts of each case to decipher the nature of the procedural lapse being complained of and the resultant prejudiced if any, being caused and there cannot be a straitjacket formula which can be uniformly followed in all the transactions.20. Adverting to facts of the instant case, we are of the view that the objection raised by the respondents was trivial and technical in nature and the appellant (secured creditor) has complied with the procedure prescribed under the SARFAESI Act. At the same time, the objection raised by the respondents in the first instance, at the stage of filing of a Securitisation Application before DRT under the SARFAESI Act is a feeble attempt which has persuaded the Tribunal and the High Court to negate the proceedings initiated by the appellant under the SARFAESI Act, is unsustainable more so, when the respondents are unable to justify the error in the procedure being followed by the appellant (secured creditor) to be complied with in initiating proceedings under the SARFAESI Act.21. The submission made by the respondents counsel that the notice under Section 13(2) of the Act was served by the authorised signatory of L&T Finance Ltd. and that was not the secured creditor in the facts of the case, in our considered view, is wholly without substance for the reason that L&T Finance Ltd. and L&T Housing Finance Ltd. are the companies who in their correspondence with all its customers use a common letterhead having their self-same authorised signatory, as being manifest from the record and it is the seal being put at one stage by the authorised signatory due to some human error of L&T Finance Ltd. in place of L&T Housing Finance Ltd.. More so, when it is not the case of the respondents that there was any iota of confusion in their knowledge regarding the action being initiated in the instant case other than the secured creditor under the SARFAESI Act for non-fulfillment of the terms and conditions of the Facility Agreement dated 11th August, 2015 or any substantial prejudice being caused apart from the technical objection being raised while the demand notice under Section 13(2) was served under the SARFAESI Act or in the proceedings in furtherance thereof no interference by the High Court in its limited scope of judicial review was called for. Consequently, in our view, the judgment of the High Court is unsustainable and deserves to be set aside. | 1 | 3,447 | 1,404 | ### 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:
appellant vide sanction letter dated 07th August, 2015 (P1), the letterhead which was used for the purpose clearly indicates that on the top of the letterhead towards right, it reflects L&T Finance (Home Loans) and on the bottom towards left, is of L&T Housing Finance Ltd. with their registered office in Mumbai and this has been duly signed by the authorised signatory of the borrower for M/s. Trishul Developers and by its guarantors. 16. It manifests from the record that the respondents from the initial stage are aware of the procedure which is being followed by the appellant in its correspondence while dealing with its customers and that is the same practice being followed by the appellant when demand notice dated 16th December, 2016 was served at a later stage. The demand notice in explicit terms clearly indicates the execution of the Facility Agreement dated 11th August, 2015 between the appellant (L&T Housing Finance Ltd.) and the respondents (M/s. Trishul Developers through its partners) and of the default being committed by the respondents (borrower/guarantor) in furtherance thereof, a notice under Section 13(2) of the SARFAESI Act was served on the same pattern of the letterhead which is being ordinarily used by the appellant in its correspondence with its customers and the demand notice dated 14th June, 2017 without leaving any iota of doubt is in reference to the non-fulfillment of the terms and conditions of the Facility Agreement dated 11th August, 2015 executed between the parties and even the schedule of security profile which has been annexed thereto is in reference to the execution of Facility Agreement dated 11th August, 2015 and its non-compliance of the provisions of the SARFAESI Act. 17. Even in the reply to the demand notice which was served by the respondents through their counsel dated 08th August, 2017 in compliance to Section 13(3A) of the SARFAESI Act, there was no confusion left in reference to the correspondence taken place between the appellant (secured creditor) and the respondents (borrower) tendering their justification and assigning reasons for which compliance could not have been made and no objection was indeed raised by the respondents in regard to the defect if any, in the demand notice dated 14th June, 2017 which was served by the secured creditor i.e. L&T Housing Finance Ltd. in compliance to the provisions of the SARFAESI Act or in furtherance to the proceedings initiated at the behest of the appellant under Section 13(4) read with Section 14 of the Act, for the first time, a feeble attempt was made in raising the alleged technical objection in a Securitisation Application filed before the DRT and succeeded. 18. It may be relevant to note that the respondents (borrower) did not deny advancement of loan, execution of Facility Agreement, their liability and compliance of the procedure being followed by the secured creditor (appellant) prescribed under the SARFAESI Act. 19. In the facts and circumstances, when the action has been taken by the competent authority as per the procedure prescribed by law and the person affected has a knowledge leaving no ambiguity or confusion in initiating proceedings under the provisions of the SARFAESI Act by the secured creditor, in our considered view, such action taken thereof cannot be held to be bad in law merely on raising a trivial objection which has no legs to stand unless the person is able to show any substantial prejudice being caused on account of the procedural lapse as prescribed under the Act or the rules framed thereunder still with a caveat that it always depends upon the facts of each case to decipher the nature of the procedural lapse being complained of and the resultant prejudiced if any, being caused and there cannot be a straitjacket formula which can be uniformly followed in all the transactions. 20. Adverting to facts of the instant case, we are of the view that the objection raised by the respondents was trivial and technical in nature and the appellant (secured creditor) has complied with the procedure prescribed under the SARFAESI Act. At the same time, the objection raised by the respondents in the first instance, at the stage of filing of a Securitisation Application before DRT under the SARFAESI Act is a feeble attempt which has persuaded the Tribunal and the High Court to negate the proceedings initiated by the appellant under the SARFAESI Act, is unsustainable more so, when the respondents are unable to justify the error in the procedure being followed by the appellant (secured creditor) to be complied with in initiating proceedings under the SARFAESI Act. 21. The submission made by the respondents counsel that the notice under Section 13(2) of the Act was served by the authorised signatory of L&T Finance Ltd. and that was not the secured creditor in the facts of the case, in our considered view, is wholly without substance for the reason that L&T Finance Ltd. and L&T Housing Finance Ltd. are the companies who in their correspondence with all its customers use a common letterhead having their self-same authorised signatory, as being manifest from the record and it is the seal being put at one stage by the authorised signatory due to some human error of L&T Finance Ltd. in place of L&T Housing Finance Ltd.. More so, when it is not the case of the respondents that there was any iota of confusion in their knowledge regarding the action being initiated in the instant case other than the secured creditor under the SARFAESI Act for non-fulfillment of the terms and conditions of the Facility Agreement dated 11th August, 2015 or any substantial prejudice being caused apart from the technical objection being raised while the demand notice under Section 13(2) was served under the SARFAESI Act or in the proceedings in furtherance thereof no interference by the High Court in its limited scope of judicial review was called for. Consequently, in our view, the judgment of the High Court is unsustainable and deserves to be set aside.
### Response:
1
### Explanation:
May, 2015 and accepted by the appellant vide sanction letter dated 07th August, 2015 (P1), the letterhead which was used for the purpose clearly indicates that on the top of the letterhead towards right, it reflects L&T Finance (Home Loans) and on the bottom towards left, is of L&T Housing Finance Ltd. with their registered office in Mumbai and this has been duly signed by the authorised signatory of the borrower for M/s. Trishul Developers and by its guarantors.16. It manifests from the record that the respondents from the initial stage are aware of the procedure which is being followed by the appellant in its correspondence while dealing with its customers and that is the same practice being followed by the appellant when demand notice dated 16th December, 2016 was served at a later stage. The demand notice in explicit terms clearly indicates the execution of the Facility Agreement dated 11th August, 2015 between the appellant (L&T Housing Finance Ltd.) and the respondents (M/s. Trishul Developers through its partners) and of the default being committed by the respondents (borrower/guarantor) in furtherance thereof, a notice under Section 13(2) of the SARFAESI Act was served on the same pattern of the letterhead which is being ordinarily used by the appellant in its correspondence with its customers and the demand notice dated 14th June, 2017 without leaving any iota of doubt is in reference to the non-fulfillment of the terms and conditions of the Facility Agreement dated 11th August, 2015 executed between the parties and even the schedule of security profile which has been annexed thereto is in reference to the execution of Facility Agreement dated 11th August, 2015 and its non-compliance of the provisions of the SARFAESI Act.17. Even in the reply to the demand notice which was served by the respondents through their counsel dated 08th August, 2017 in compliance to Section 13(3A) of the SARFAESI Act, there was no confusion left in reference to the correspondence taken place between the appellant (secured creditor) and the respondents (borrower) tendering their justification and assigning reasons for which compliance could not have been made and no objection was indeed raised by the respondents in regard to the defect if any, in the demand notice dated 14th June, 2017 which was served by the secured creditor i.e. L&T Housing Finance Ltd. in compliance to the provisions of the SARFAESI Act or in furtherance to the proceedings initiated at the behest of the appellant under Section 13(4) read with Section 14 of the Act, for the first time, a feeble attempt was made in raising the alleged technical objection in a Securitisation Application filed before the DRT and succeeded.18. It may be relevant to note that the respondents (borrower) did not deny advancement of loan, execution of Facility Agreement, their liability and compliance of the procedure being followed by the secured creditor (appellant) prescribed under the SARFAESI Act.19. In the facts and circumstances, when the action has been taken by the competent authority as per the procedure prescribed by law and the person affected has a knowledge leaving no ambiguity or confusion in initiating proceedings under the provisions of the SARFAESI Act by the secured creditor, in our considered view, such action taken thereof cannot be held to be bad in law merely on raising a trivial objection which has no legs to stand unless the person is able to show any substantial prejudice being caused on account of the procedural lapse as prescribed under the Act or the rules framed thereunder still with a caveat that it always depends upon the facts of each case to decipher the nature of the procedural lapse being complained of and the resultant prejudiced if any, being caused and there cannot be a straitjacket formula which can be uniformly followed in all the transactions.20. Adverting to facts of the instant case, we are of the view that the objection raised by the respondents was trivial and technical in nature and the appellant (secured creditor) has complied with the procedure prescribed under the SARFAESI Act. At the same time, the objection raised by the respondents in the first instance, at the stage of filing of a Securitisation Application before DRT under the SARFAESI Act is a feeble attempt which has persuaded the Tribunal and the High Court to negate the proceedings initiated by the appellant under the SARFAESI Act, is unsustainable more so, when the respondents are unable to justify the error in the procedure being followed by the appellant (secured creditor) to be complied with in initiating proceedings under the SARFAESI Act.21. The submission made by the respondents counsel that the notice under Section 13(2) of the Act was served by the authorised signatory of L&T Finance Ltd. and that was not the secured creditor in the facts of the case, in our considered view, is wholly without substance for the reason that L&T Finance Ltd. and L&T Housing Finance Ltd. are the companies who in their correspondence with all its customers use a common letterhead having their self-same authorised signatory, as being manifest from the record and it is the seal being put at one stage by the authorised signatory due to some human error of L&T Finance Ltd. in place of L&T Housing Finance Ltd.. More so, when it is not the case of the respondents that there was any iota of confusion in their knowledge regarding the action being initiated in the instant case other than the secured creditor under the SARFAESI Act for non-fulfillment of the terms and conditions of the Facility Agreement dated 11th August, 2015 or any substantial prejudice being caused apart from the technical objection being raised while the demand notice under Section 13(2) was served under the SARFAESI Act or in the proceedings in furtherance thereof no interference by the High Court in its limited scope of judicial review was called for. Consequently, in our view, the judgment of the High Court is unsustainable and deserves to be set aside.
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Shashikant M Sable of Mumbai Vs. M/S Advani Oerlikon Limited A Company Incorporated Under The Companies Act & Another | by a representative of his choice. The Labour Court held that the enquiries conducted against the workmen were not fair and proper and it was permitted to lead fresh evidence before the enquiry officer in support of the charges levelled against the workman. The main reason which weighed with the Labour Court was that the enquiries held against the workman were in breach of principles of natural justice; enquiry was not conducted in the language known to the workman i.e. Marathi. On these facts, the Labour Court formed the opinion that prejudice was caused to the workman. This was challenged by the Company by filing Writ Petition No. 972 of 1997 which was decided by the learned Single Judge in favour of the Company and the Court held as under:- 10. .... .... He was given a copy of the enquiry proceedings. He has endorsed the same on each day on which he was present, although, the workman had indicated that he had no understood the contents. The defence representative had requested the enquiry officer to act on the option exercised by the workman and to conduct the enquiry in Marathi. However, it appears from the record that the enquiry officer recorded the statements and depositions of the witnesses in English although the questions were asked and answered in Marathi. One witness did not know Marathi and therefore he was examined and cross examined in English and the deposition was also recorded in English. In my view, when the workman is represented by a defence representative who is well versed in the English language it could not be said that a workman has been prejudiced by recording the enquiry proceedings in English. The defence representative is expected to take care of the interests of the workman he defends at the enquiry. If the enquiry officer does not perform his duty of explaining the contents of the enquiry proceedings which are recorded by him, it is expected of the defence representative to explain the contents of the same to the delinquent workman. In the present case, the workman was present at the domestic enquiry throughout and he was also represented by a defence representative who was well versed in English who by his conduct had agreed that the proceedings of the enquiry could be conducted in English. There was no work of protest from the defence representative or the workman against the procedure adopted at the enquiry. Therefore, it cannot be said that the workman had been caused any prejudice by recording the statements and the testimony of the witnesses in English. 11. The submission of the learned advocate for the respondent that the very fact that the depositions were recorded in a language now known to the workman would cause prejudice is without merit as in this case, the workman had the assistance of his defence representative while participating in the domestic enquiry. The judgment in the case of K. I. Tripathi (supra) and in the case of P.D. Agarwal (supra) indicate that before a domestic enquiry is set aside, the workman must plead and prove prejudice. In the present case, there is no dispute that the recording of the enquiry proceedings was done in the English language. However, there is no material on record to indicate that this has caused any prejudice to the workman. Therefore, the submissions of the learned Advocate for the workman cannot be accepted. As already noticed, the correctness of this finding of the learned Single Judge is challenged in the present Appeal. 4. The sole question that falls for consideration in the present Appeal is as to whether Standing Order 25(4) is absolutely mandatory in its terms or whether the principle of substantial compliance and element of prejudice are relevant considerations while dealing with default to the compliance of this Standing Order. This question is no more res integra and stands squarely answered by a Division Bench judgment of this Court in the case of National Organic Chemicals (RCD) Limited and another vs Pandit Ladaku Patil, (Letters Patent Appeal No. 85 of 2008 in Writ Petition No. 1239 of 2008), where the Court held as under:- (a) Compliance to the provisions of standing order 25(4) is essential in as much as the concerned authority to provide an option of language to the workman. If such an option is not given, it may be violation exhibiting prejudice per se. (b) Depending on the facts and circumstances of the given case, the principle of substantial compliance would be applicable to the standing order; and (c) Again depending on the facts and circumstances of the given case, some element of prejudice may have to be exhibited by the delinquent employee. 5. The Court had examined various judgments of the Supreme Court as well as this Court and had stated the above position of law. The Single Judge bench view in the subject matter of the present Appeal and in the case of Nandini Mehta, Proprietor of M/s Layovak Laboratories vs Amol Kate and Shubhangini Kanade (Smt.), (2003 III CLR 856), were harmoniously construed as there was no patent conflict between the judgments. Applying the same principle to the facts of the present case, it is apparently clear that the workman had opted to be defended by a representative. He had been given representative of his own choice who defended him in all the proceedings. The defence representative was fully qualified and was aware of the language in which the proceedings were conducted. Furthermore, the cross-examination of the witnesses was conducted in English the copy of the enquiry proceedings was given to him and he actually participated in the proceedings without any protest and understood the contents of the proceedings. The questions were asked and answered in Marathi, thereafter they were recorded in English. One witness did not know Marathi and, therefore, he was examined and cross-examined in English. No protest was raised in the proceedings and the representative participated in the proceedings without any protest or demurrer. | 0[ds]5. The Court had examined various judgments of the Supreme Court as well as this Court and had stated the above position of law. The Single Judge bench view in the subject matter of the present Appeal and in the case of Nandini Mehta, Proprietor of M/s Layovak Laboratories vs Amol Kate and Shubhangini Kanade (Smt.), (2003 III CLR 856), were harmoniously construed as there was no patent conflict between the judgments. Applying the same principle to the facts of the present case, it is apparently clear that the workman had opted to be defended by a representative. He had been given representative of his own choice who defended him in all the proceedings. The defence representative was fully qualified and was aware of the language in which the proceedings were conducted. Furthermore, then of the witnesses was conducted in English the copy of the enquiry proceedings was given to him and he actually participated in the proceedings without any protest and understood the contents of the proceedings. The questions were asked and answered in Marathi, thereafter they were recorded in English. One witness did not know Marathi and, therefore, he was examined andd in English. No protest was raised in the proceedings and the representative participated in the proceedings without any protest or demurrer. | 0 | 1,508 | 242 | ### 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:
by a representative of his choice. The Labour Court held that the enquiries conducted against the workmen were not fair and proper and it was permitted to lead fresh evidence before the enquiry officer in support of the charges levelled against the workman. The main reason which weighed with the Labour Court was that the enquiries held against the workman were in breach of principles of natural justice; enquiry was not conducted in the language known to the workman i.e. Marathi. On these facts, the Labour Court formed the opinion that prejudice was caused to the workman. This was challenged by the Company by filing Writ Petition No. 972 of 1997 which was decided by the learned Single Judge in favour of the Company and the Court held as under:- 10. .... .... He was given a copy of the enquiry proceedings. He has endorsed the same on each day on which he was present, although, the workman had indicated that he had no understood the contents. The defence representative had requested the enquiry officer to act on the option exercised by the workman and to conduct the enquiry in Marathi. However, it appears from the record that the enquiry officer recorded the statements and depositions of the witnesses in English although the questions were asked and answered in Marathi. One witness did not know Marathi and therefore he was examined and cross examined in English and the deposition was also recorded in English. In my view, when the workman is represented by a defence representative who is well versed in the English language it could not be said that a workman has been prejudiced by recording the enquiry proceedings in English. The defence representative is expected to take care of the interests of the workman he defends at the enquiry. If the enquiry officer does not perform his duty of explaining the contents of the enquiry proceedings which are recorded by him, it is expected of the defence representative to explain the contents of the same to the delinquent workman. In the present case, the workman was present at the domestic enquiry throughout and he was also represented by a defence representative who was well versed in English who by his conduct had agreed that the proceedings of the enquiry could be conducted in English. There was no work of protest from the defence representative or the workman against the procedure adopted at the enquiry. Therefore, it cannot be said that the workman had been caused any prejudice by recording the statements and the testimony of the witnesses in English. 11. The submission of the learned advocate for the respondent that the very fact that the depositions were recorded in a language now known to the workman would cause prejudice is without merit as in this case, the workman had the assistance of his defence representative while participating in the domestic enquiry. The judgment in the case of K. I. Tripathi (supra) and in the case of P.D. Agarwal (supra) indicate that before a domestic enquiry is set aside, the workman must plead and prove prejudice. In the present case, there is no dispute that the recording of the enquiry proceedings was done in the English language. However, there is no material on record to indicate that this has caused any prejudice to the workman. Therefore, the submissions of the learned Advocate for the workman cannot be accepted. As already noticed, the correctness of this finding of the learned Single Judge is challenged in the present Appeal. 4. The sole question that falls for consideration in the present Appeal is as to whether Standing Order 25(4) is absolutely mandatory in its terms or whether the principle of substantial compliance and element of prejudice are relevant considerations while dealing with default to the compliance of this Standing Order. This question is no more res integra and stands squarely answered by a Division Bench judgment of this Court in the case of National Organic Chemicals (RCD) Limited and another vs Pandit Ladaku Patil, (Letters Patent Appeal No. 85 of 2008 in Writ Petition No. 1239 of 2008), where the Court held as under:- (a) Compliance to the provisions of standing order 25(4) is essential in as much as the concerned authority to provide an option of language to the workman. If such an option is not given, it may be violation exhibiting prejudice per se. (b) Depending on the facts and circumstances of the given case, the principle of substantial compliance would be applicable to the standing order; and (c) Again depending on the facts and circumstances of the given case, some element of prejudice may have to be exhibited by the delinquent employee. 5. The Court had examined various judgments of the Supreme Court as well as this Court and had stated the above position of law. The Single Judge bench view in the subject matter of the present Appeal and in the case of Nandini Mehta, Proprietor of M/s Layovak Laboratories vs Amol Kate and Shubhangini Kanade (Smt.), (2003 III CLR 856), were harmoniously construed as there was no patent conflict between the judgments. Applying the same principle to the facts of the present case, it is apparently clear that the workman had opted to be defended by a representative. He had been given representative of his own choice who defended him in all the proceedings. The defence representative was fully qualified and was aware of the language in which the proceedings were conducted. Furthermore, the cross-examination of the witnesses was conducted in English the copy of the enquiry proceedings was given to him and he actually participated in the proceedings without any protest and understood the contents of the proceedings. The questions were asked and answered in Marathi, thereafter they were recorded in English. One witness did not know Marathi and, therefore, he was examined and cross-examined in English. No protest was raised in the proceedings and the representative participated in the proceedings without any protest or demurrer.
### Response:
0
### Explanation:
5. The Court had examined various judgments of the Supreme Court as well as this Court and had stated the above position of law. The Single Judge bench view in the subject matter of the present Appeal and in the case of Nandini Mehta, Proprietor of M/s Layovak Laboratories vs Amol Kate and Shubhangini Kanade (Smt.), (2003 III CLR 856), were harmoniously construed as there was no patent conflict between the judgments. Applying the same principle to the facts of the present case, it is apparently clear that the workman had opted to be defended by a representative. He had been given representative of his own choice who defended him in all the proceedings. The defence representative was fully qualified and was aware of the language in which the proceedings were conducted. Furthermore, then of the witnesses was conducted in English the copy of the enquiry proceedings was given to him and he actually participated in the proceedings without any protest and understood the contents of the proceedings. The questions were asked and answered in Marathi, thereafter they were recorded in English. One witness did not know Marathi and, therefore, he was examined andd in English. No protest was raised in the proceedings and the representative participated in the proceedings without any protest or demurrer.
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Raje Anandrao Vs. Shamrao And Others | feels however that this power to punish might be misused by the Raja, for it is uncontrolled, unlike the power to dismiss which could only be exercised with the previous sanction of the District Judge. The clause as it stands therefore does not in any way affect the private rights of the pujaris and does not go beyond what was decided in the suit between them and the appellant. It concerns the administration of the temple and therefore it was within the jurisdiction of the District Judge to insert it in the scheme when revising it. At the same time there may be something in the apprehension entertained by the pujaris that the power to punish may be abused. We therefore think that in this clause a further sentence should be added to the following effect :-"In case Raje Anandrao or his manager or agent fines or punishes the pujaris for misconduct, the pujaris will have the right to appeal to the District Judge against such orders and the order of the District Judge there on will be final."15. Then we come to cl. (c) which is as follows :-"The pujaris will be entitled to their shares in the offerings as per the agreement of 1872 after deduction of the expenses for the pooja, etc., as per my detailed remarks in my separate order passed today. The management will work out those instructions for day-today working in accordance with rules to be included in the puja rules."The main attack of the respondents is on this clause, for, according to them, it affects their right to offerings to which they are entitled under the agreement of 1872. This clause is not self-contained, for it refers to the detailed remarks in the separate order of the District Judge passed on that very day and leaves it to the management to work out those instructions for day to day working in accordance with rules to be included in the puja rules. Now under the separate order of the same date it is provided that offerings up to Rs. 5/- to which the pujaris are entitled subject to the expenses of dhoop, deep and neivedya according to the agreement of 1872 should be kept in a separate box which should be opened once every week, or fortnight or month or at any stated period as agreed by the pujaris, in the presence of some respectable persons of the town and the signatures of the representatives of the pujaris and of the trustees or his representative should be taken in a separate note-book to show the exact amount found in the box. In case the pujaris do not agree to some period the box may be opened once every month. It is further said that the expenses of dhoop, deep and neivedya should be met from this money and such expenses should be found out from the pujaris account. If the pujaris do not disclose their accounts it would be for the Raja to settle the amount which is to be spent on dhoop, deep and neivedya and then require the pujaris to spend that much amount for the purpose. This amount should be paid to the pujaris on their showing what they had spent on dhoop, deep and neivedya; but if the pujaris fail to spend anything, the trustee should see that the expenses are properly incurred and debited to the pujaris in their khata and the balance of this khata should be divided among the pujaris.16. The respondents are afraid that these directions would mean that the management will take away the money found in the box whenever it is opened and the pujaris would thus be at the mercy of the management for meeting the expenses of dhoop, deep and neivedya and also for the balance to which they are entitled for their upkeep. Up to now this amount of offerings up to Rs. 5/- was going direct to the pujaris and they were incurring expenses on dhoop, deep and neivedya out of it. The appellant contends that under the Madhya Pradesh Public Trusts Act, No. XXX of 1951, he has to maintain proper accounts under S. 15, to prepare a budget under S. 18 and to have the accounts audited under S. 16. Therefore it is necessary that he should show the amount received in offerings up to Rs. 5/- in his budget and should also show how much of it goes to the pujaris for their personal use and how much of it is spent on dhoop, deep and neivedya. There is no doubt that in order that puja in the temple in the shape of dhoop, deep and neivedya is performed properly, it is necessary to have check in this income from offerings upto Rs. 5/- from which this expenditure is incurred leaving the balance for the personal use of the pujaris. Even so it seems to us necessary that the interests of the pujaris are also safeguarded and they should not be left entirely at the mercy of the appellant, who may take away the entire money found in the box and may not pay them for long periods to what they are entitled as the balance. Though therefore the District Judge was right in making the arrangement for putting the offerings up to Rs. 5/- in a separate box so that they may be accounted for, we think some more provisions are necessary in order that cl. (c) may not affect adversely the private rights of the pujaris to the balance of these offerings after incurring the expenses on dhoop, deep and neivedya. It is also essential that some safeguard should be provided for the pujaris so that the amount put in the box is not surreptitiously taken away. Though therefore the main provision in cl. (c) dealing as it does with the administration of the trust is not objectionable, it is necessary that it should be made self-contained and should also contain safeguards for the pujaris. | 1[ds]It is not seriously disputed in this case that the power to amend the scheme has been reserved in view of the judgment of the Additional Judicial Commissioners already set out above and paragraph 17 of the scheme dated October 16,shall confine ourselves only to the question whether in a case where there is provision in the scheme for its modification by an application to the Court, it is open to the Court to make modifications therein without the necessity of a suit under s.sub-section therefore does not bar an application for modification of a scheme in accordance with the provisions thereof, provided such a provision can be made in the scheme itself. Under sub-s. (1) the Court has the power to settle a scheme. That power to our mind appears to be comprehensive enough to permit the inclusion of a provision in the scheme itself which would make it alterable by the Court if and when found necessary in future to do so. A suit under S. 92 certainly comes to an end when a decree is passed therein, including the settlement of a scheme for the administration of the trust. But there is nothing in the fact that the Court can settle a scheme under S. 92(1) to prevent it from making the scheme elastic and provide for its modification in the scheme itself. That does not affect the finality of the decree; all that it provides is that where necessity arises a change may be made in the manner of administration by the modification of the scheme. We cannot agree that if the scheme is amended in pursuance of such a clause in the scheme it will amount to amending the decree. The decree stands as it was, and all that happens is that a part of the decree which provides for management under the scheme is being given effect to. It seems to us both appropriate and convenient that a scheme should contain a provision for its modification, as that would provide a speedier remedy for modification of the manner of administration when circumstances arise calling for such modification than through the cumbrous procedure of athat view it would in our opinion be just and convenient to provide for a clause in the scheme which is framed for the administration of the trust to allow for its modification by an application. We therefore accept the view of the Bombay, Calcutta, Allahabad and Patna High Courts in this matter and hold that it is open in a suit under S. 92 where a scheme is to be settled to provide in the scheme for modifying it as and when necessity arises, by inserting a clause to that effect. Such a suit for the settlement of a scheme is analogous to an administration suit and so long as the modification in the scheme is for the purposes of administration, such modification can be made by application under the relevant clause of the scheme, without the necessity of a suit under S. 92 of theCode of Civil Procedure. Such a procedure does not violate any provision of S. 92.The view taken by the Madras High Court that insertion of such a clause for the modification of the scheme is ultra vires is incorrect. It was therefore open to the District Judge in the present case to modify theis true that the pujaris were not parties to the suit under S. 92 but the decision in that suit binds the pujaris as worshippers so far as the administration of the temple is concerned, even though they were not parties to it, for a suit under S. 92 is a representative suit and binds not only the parties thereto but all those who are interested in the trust. Therefore, the mere fact that the pujaris were no parties to the suit will not take away the jurisdiction of the District Judge to modify the scheme, if the modification is with respect to the administration of the trust and if it does not affect the private rights of the pujaris. According to the High Court, the modification in the scheme was only with respect to three paragraphs, namely, paragraphs, 3, 4 andrevised paragraph 3 also contains a direction regarding the making of such rules with the approval of the District Judge after hearing the public and the pujaris. It has further been provided that such rules should be printed and published locally and should be enforced by the trustee. There can in our opinion be no objection to this addition, for the enforcement of the rules was already implicit in old paragraph 3 and their printing and publication is only a matter of convenience to all and can in no way affect the private rights of thethis provision merely says what the rules for pooja to be approved by the District Judge after hearing the public and the pujaris should provide among other things. This provision is on the face of it reasonable, for it is unthinkable that a pujari, even though he may be a hereditary pujari, should perform puja, when he does not know anything about the mantrik rituals. Learned counsel for the respondents has no objection to this provision either except that he contends that the rule seems to give the right to provide a substitute to the managing trustee (namely, the appellant). As we read the rule, however, we do not think that that is what is means. All that it says is that where the hereditary pujari does not know the mantrik ritual, the puja may be performed by his substitute. It means that the substitute has to be provided by the pujari and not by the managing trustee. The fact that the substitute is pujaris substitute has implicit in it that it is the pujari who has to provide a substitute in his place in case he does not know thetherefore make it clear that when the addition in paragraph 3 speaks of a substitute for the pujari who is ignorant of rituals, it is the pujari who has the right to provide the substitute and not the managing trustee. So read, this addition does not in any way affect the private rights of the pujaris in the matter of puja. Thus the entire addition in paragraph 3 deals with the administration of the temple with respect to puja and with the clarification which we have given above there is no trespass on the private rights of the pujaris by this addition. Therefore, the revised paragraph 3 was within the jurisdiction of the District Judge and cannot be taken exception to on that score.13. Turning now to paragraph 12 we find that there are additions in that paragraph in the revised scheme and we shall deal with each addition seriatim : The first addition (i.e., cl. a) is that "the Raje Anandrao shall have power to keep such dependants like kirtankars, puraniks, etc., for proper performance of the religious rites of the deity customarily so performed and to fix their allowances or remunerations, as the case may be." This addition does not in any way affect the private rights of the pujaris ; it deals with persons other than the pujaris who perform other duties beside the puja, like kirtan, reading of purans, etc. The managing trustee (namely, the Raja) has been given the power to appoint such persons and to fix their allowances or remuneration. Obviously, such allowances and remuneration will not be paid out of the income which is secured to the pujaris under the agreement of 1872 and will have to come out of other income of the temple.If this provision is so read-and this is the only way in which it can be read-the learned counsel for the respondents has no objection to this provisionclause as it stands therefore does not in any way affect the private rights of the pujaris and does not go beyond what was decided in the suit between them and the appellant. It concerns the administration of the temple and therefore it was within the jurisdiction of the District Judge to insert it in the scheme when revising it. At the same time there may be something in the apprehension entertained by the pujaris that the power to punish may be abused. We therefore think that in this clause a further sentence should be added to the following effectcase Raje Anandrao or his manager or agent fines or punishes the pujaris for misconduct, the pujaris will have the right to appeal to the District Judge against such orders and the order of the District Judge there on will beis no doubt that in order that puja in the temple in the shape of dhoop, deep and neivedya is performed properly, it is necessary to have check in this income from offerings upto Rs. 5/- from which this expenditure is incurred leaving the balance for the personal use of the pujaris. Even so it seems to us necessary that the interests of the pujaris are also safeguarded and they should not be left entirely at the mercy of the appellant, who may take away the entire money found in the box and may not pay them for long periods to what they are entitled as the balance. Though therefore the District Judge was right in making the arrangement for putting the offerings up to Rs. 5/- in a separate box so that they may be accounted for, we think some more provisions are necessary in order that cl. (c) may not affect adversely the private rights of the pujaris to the balance of these offerings after incurring the expenses on dhoop, deep and neivedya. It is also essential that some safeguard should be provided for the pujaris so that the amount put in the box is not surreptitiously taken away. Though therefore the main provision in cl. (c) dealing as it does with the administration of the trust is not objectionable, it is necessary that it should be made self-contained and should also contain safeguards for the pujaris. | 1 | 6,285 | 1,796 | ### Instruction:
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feels however that this power to punish might be misused by the Raja, for it is uncontrolled, unlike the power to dismiss which could only be exercised with the previous sanction of the District Judge. The clause as it stands therefore does not in any way affect the private rights of the pujaris and does not go beyond what was decided in the suit between them and the appellant. It concerns the administration of the temple and therefore it was within the jurisdiction of the District Judge to insert it in the scheme when revising it. At the same time there may be something in the apprehension entertained by the pujaris that the power to punish may be abused. We therefore think that in this clause a further sentence should be added to the following effect :-"In case Raje Anandrao or his manager or agent fines or punishes the pujaris for misconduct, the pujaris will have the right to appeal to the District Judge against such orders and the order of the District Judge there on will be final."15. Then we come to cl. (c) which is as follows :-"The pujaris will be entitled to their shares in the offerings as per the agreement of 1872 after deduction of the expenses for the pooja, etc., as per my detailed remarks in my separate order passed today. The management will work out those instructions for day-today working in accordance with rules to be included in the puja rules."The main attack of the respondents is on this clause, for, according to them, it affects their right to offerings to which they are entitled under the agreement of 1872. This clause is not self-contained, for it refers to the detailed remarks in the separate order of the District Judge passed on that very day and leaves it to the management to work out those instructions for day to day working in accordance with rules to be included in the puja rules. Now under the separate order of the same date it is provided that offerings up to Rs. 5/- to which the pujaris are entitled subject to the expenses of dhoop, deep and neivedya according to the agreement of 1872 should be kept in a separate box which should be opened once every week, or fortnight or month or at any stated period as agreed by the pujaris, in the presence of some respectable persons of the town and the signatures of the representatives of the pujaris and of the trustees or his representative should be taken in a separate note-book to show the exact amount found in the box. In case the pujaris do not agree to some period the box may be opened once every month. It is further said that the expenses of dhoop, deep and neivedya should be met from this money and such expenses should be found out from the pujaris account. If the pujaris do not disclose their accounts it would be for the Raja to settle the amount which is to be spent on dhoop, deep and neivedya and then require the pujaris to spend that much amount for the purpose. This amount should be paid to the pujaris on their showing what they had spent on dhoop, deep and neivedya; but if the pujaris fail to spend anything, the trustee should see that the expenses are properly incurred and debited to the pujaris in their khata and the balance of this khata should be divided among the pujaris.16. The respondents are afraid that these directions would mean that the management will take away the money found in the box whenever it is opened and the pujaris would thus be at the mercy of the management for meeting the expenses of dhoop, deep and neivedya and also for the balance to which they are entitled for their upkeep. Up to now this amount of offerings up to Rs. 5/- was going direct to the pujaris and they were incurring expenses on dhoop, deep and neivedya out of it. The appellant contends that under the Madhya Pradesh Public Trusts Act, No. XXX of 1951, he has to maintain proper accounts under S. 15, to prepare a budget under S. 18 and to have the accounts audited under S. 16. Therefore it is necessary that he should show the amount received in offerings up to Rs. 5/- in his budget and should also show how much of it goes to the pujaris for their personal use and how much of it is spent on dhoop, deep and neivedya. There is no doubt that in order that puja in the temple in the shape of dhoop, deep and neivedya is performed properly, it is necessary to have check in this income from offerings upto Rs. 5/- from which this expenditure is incurred leaving the balance for the personal use of the pujaris. Even so it seems to us necessary that the interests of the pujaris are also safeguarded and they should not be left entirely at the mercy of the appellant, who may take away the entire money found in the box and may not pay them for long periods to what they are entitled as the balance. Though therefore the District Judge was right in making the arrangement for putting the offerings up to Rs. 5/- in a separate box so that they may be accounted for, we think some more provisions are necessary in order that cl. (c) may not affect adversely the private rights of the pujaris to the balance of these offerings after incurring the expenses on dhoop, deep and neivedya. It is also essential that some safeguard should be provided for the pujaris so that the amount put in the box is not surreptitiously taken away. Though therefore the main provision in cl. (c) dealing as it does with the administration of the trust is not objectionable, it is necessary that it should be made self-contained and should also contain safeguards for the pujaris.
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the High Court, the modification in the scheme was only with respect to three paragraphs, namely, paragraphs, 3, 4 andrevised paragraph 3 also contains a direction regarding the making of such rules with the approval of the District Judge after hearing the public and the pujaris. It has further been provided that such rules should be printed and published locally and should be enforced by the trustee. There can in our opinion be no objection to this addition, for the enforcement of the rules was already implicit in old paragraph 3 and their printing and publication is only a matter of convenience to all and can in no way affect the private rights of thethis provision merely says what the rules for pooja to be approved by the District Judge after hearing the public and the pujaris should provide among other things. This provision is on the face of it reasonable, for it is unthinkable that a pujari, even though he may be a hereditary pujari, should perform puja, when he does not know anything about the mantrik rituals. Learned counsel for the respondents has no objection to this provision either except that he contends that the rule seems to give the right to provide a substitute to the managing trustee (namely, the appellant). As we read the rule, however, we do not think that that is what is means. All that it says is that where the hereditary pujari does not know the mantrik ritual, the puja may be performed by his substitute. It means that the substitute has to be provided by the pujari and not by the managing trustee. The fact that the substitute is pujaris substitute has implicit in it that it is the pujari who has to provide a substitute in his place in case he does not know thetherefore make it clear that when the addition in paragraph 3 speaks of a substitute for the pujari who is ignorant of rituals, it is the pujari who has the right to provide the substitute and not the managing trustee. So read, this addition does not in any way affect the private rights of the pujaris in the matter of puja. Thus the entire addition in paragraph 3 deals with the administration of the temple with respect to puja and with the clarification which we have given above there is no trespass on the private rights of the pujaris by this addition. Therefore, the revised paragraph 3 was within the jurisdiction of the District Judge and cannot be taken exception to on that score.13. Turning now to paragraph 12 we find that there are additions in that paragraph in the revised scheme and we shall deal with each addition seriatim : The first addition (i.e., cl. a) is that "the Raje Anandrao shall have power to keep such dependants like kirtankars, puraniks, etc., for proper performance of the religious rites of the deity customarily so performed and to fix their allowances or remunerations, as the case may be." This addition does not in any way affect the private rights of the pujaris ; it deals with persons other than the pujaris who perform other duties beside the puja, like kirtan, reading of purans, etc. The managing trustee (namely, the Raja) has been given the power to appoint such persons and to fix their allowances or remuneration. Obviously, such allowances and remuneration will not be paid out of the income which is secured to the pujaris under the agreement of 1872 and will have to come out of other income of the temple.If this provision is so read-and this is the only way in which it can be read-the learned counsel for the respondents has no objection to this provisionclause as it stands therefore does not in any way affect the private rights of the pujaris and does not go beyond what was decided in the suit between them and the appellant. It concerns the administration of the temple and therefore it was within the jurisdiction of the District Judge to insert it in the scheme when revising it. At the same time there may be something in the apprehension entertained by the pujaris that the power to punish may be abused. We therefore think that in this clause a further sentence should be added to the following effectcase Raje Anandrao or his manager or agent fines or punishes the pujaris for misconduct, the pujaris will have the right to appeal to the District Judge against such orders and the order of the District Judge there on will beis no doubt that in order that puja in the temple in the shape of dhoop, deep and neivedya is performed properly, it is necessary to have check in this income from offerings upto Rs. 5/- from which this expenditure is incurred leaving the balance for the personal use of the pujaris. Even so it seems to us necessary that the interests of the pujaris are also safeguarded and they should not be left entirely at the mercy of the appellant, who may take away the entire money found in the box and may not pay them for long periods to what they are entitled as the balance. Though therefore the District Judge was right in making the arrangement for putting the offerings up to Rs. 5/- in a separate box so that they may be accounted for, we think some more provisions are necessary in order that cl. (c) may not affect adversely the private rights of the pujaris to the balance of these offerings after incurring the expenses on dhoop, deep and neivedya. It is also essential that some safeguard should be provided for the pujaris so that the amount put in the box is not surreptitiously taken away. Though therefore the main provision in cl. (c) dealing as it does with the administration of the trust is not objectionable, it is necessary that it should be made self-contained and should also contain safeguards for the pujaris.
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Collector of Customs, Calcutta Vs. Tin Plate Company of India Limited | has been short levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year; (h) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. When the two demand notices were issued on 27/28-12-1984 on the ground that there was a short levy both of them were time- barred under Section 28(1) (b) of the Customs Act. On that there can be no dispute4. The proviso to Section 28(1) extends the period of limitation to five years in certain cases of collusion, wilful misstatement or suppression of facts by the assessee. In the case of suppression of facts the proviso would be attracted and the period of limitation would stand extended to five years. Therefore, when it was realised that so far as the two demand notices were concerned they were beyond the period of limitation prescribed by Section 28(1) (b) of the Customs Act, the Deputy Collector of Customs issued a notice dated 22-7-1985 in which for the first time the allegation in regard to suppression of facts came to be made. On the basis of that notice, it was stated that the two demand notices dated 27/28-12-1 984 were within time. It is interesting to note that even by this notice dated 22-7-1985 what was sought to be done was to relate back the matter to the two demand notices and overcome the difficulty of limitation by saying that since there was suppression those two demand notices were within time. Now, as pointed out earlier if action is contemplated under Section 28(l) (h) it is incumbent (or mandatory) on the part of the Department to serve the assessee a notice requiring him to show cause why he should not pay the amount specified therein. This requirement is in keeping with the principle of natural justice. Indisputably, no show- cause notice was issued to the assessee before the two demand notices were issued. Even the notice of 22-7-1985 is not "a show-cause notice" within the meaning of Section 28(1) of the Customs Act. It is only an answer to the assessees letter dated 1-2-1985 addressed to the Collector of Customs wherein he contended that the two demand notices were ultra vires and the Deputy Collector refers to the factum of suppression with a view to bringing those two notices within the period of limitation by the invocation of the proviso to Section 28(1) of the Customs Act. There was a nothing to stop the Department from issuing a proper show-cause notice, if suppression of fact was a valid ground for invoking Section 28(1) of the Customs Act. But instead of doing so, what the Deputy Collector does is to justify the two demand notices as being within time by pointing out that this was a case of suppression of facts and then stating in a cavalier fashion that if the assessee so desires he may approach the Assistant Collector for a hearing. It is incumbent on the part of the Department to issue a show-cause notice and thereby give the assessee an opportunity to make his representation as is envisaged by Section 28(2) of the Customs Act. It is a condition precedent. Instead of following that procedure the Department followed the circuitous method and left it to the assessee to approach the Assistant Collector of Customs, if he so desired. We are, therefore, of the opinion that the communication of 22-7-1985 could hardly be described as a show-cause notice under Section 28(1) of the Customs Act 5. The Tribunal has by the impugned order come to the conclusion and rightly in our opinion, that the communication of 22-7-1985 does not purport to be "a show-cause notice" and the two demand notices cannot be construed as show-cause notices as envisaged by the Act. It has further taken note of the fact that the two demand notices do not refer to any suppression of facts. On the question of suppression the Tribunal notices that there is no material tendered by the Department to indicate that there was any attempt on the part of the assessee to deceive the Government or induce the authorities to release the goods notwithstanding the expiry of the period of the exemption notification. The Tribunal notices that there is no active concealment; it rightly states that suppression envisages a deliberate or conscious omission to state a fact with the intention of deriving wrongful gain. It further points out that even the Department was aware that the outer date of the exemption notification had expired. In Bharat Surfactants (P) Ltd. v. Union of India a Constitution Bench of this Court had occasion to set out the procedure in detail to be followed in such cases. According to the procedure indicated in para 12 of the judgment, it is clear that the presentation of the manifest to the Customs authority could be effected before or after the arrival of the vessel and in the instant case (sic the presentation of) the manifest had been effected after the arrival of the vessels. Therefore, the authorities were also aware that the vessel had arrived after 31-12-1983, the last date for availing of the benefit of the exemption notification. The Tribunal, therefore, also came to the conclusion and in our opinion rightly, that the element of deliberate or conscious omission had not been established and, therefore, even on that count it did not uphold the Departments contention. We see no reason to take a different view | 0[ds]5. The Tribunal has by the impugned order come to the conclusion and rightly in our opinion, that the communication ofdoes not purport to be "anotice" and the two demand notices cannot be construed asnotices as envisaged by the Act. It has further taken note of the fact that the two demand notices do not refer to any suppression of facts. On the question of suppression the Tribunal notices that there is no material tendered by the Department to indicate that there was any attempt on the part of the assessee to deceive the Government or induce the authorities to release the goods notwithstanding the expiry of the period of the exemption notification. The Tribunal notices that there is no active concealment; it rightly states that suppression envisages a deliberate or conscious omission to state a fact with the intention of deriving wrongful gain. It further points out that even the Department was aware that the outer date of the exemption notification had expired. In Bharat Surfactants (P) Ltd. v. Union of India a Constitution Bench of this Court had occasion to set out the procedure in detail to be followed in such cases. According to the procedure indicated in para 12 of the judgment, it is clear that the presentation of the manifest to the Customs authority could be effected before or after the arrival of the vessel and in the instant case (sic the presentation of) the manifest had been effected after the arrival of the vessels. Therefore, the authorities were also aware that the vessel had arrived afterthe last date for availing of the benefit of the exemption notification. The Tribunal, therefore, also came to the conclusion and in our opinion rightly, that the element of deliberate or conscious omission had not been established and, therefore, even on that count it did not uphold the Departments contention. We see no reason to take a different view | 0 | 1,947 | 349 | ### Instruction:
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has been short levied or erroneously refunded, or when any interest payable has not been paid, part paid or erroneously refunded, the proper officer may (a) in the case of any import made by any individual for his personal use or by Government or by any educational, research or charitable institution or hospital, within one year; (h) in any other case, within six months, from the relevant date, serve notice on the person chargeable with the duty or interest which has not been levied or charged or which has been so short levied or part paid or to whom the refund has erroneously been made, requiring him to show cause why he should not pay the amount specified in the notice. When the two demand notices were issued on 27/28-12-1984 on the ground that there was a short levy both of them were time- barred under Section 28(1) (b) of the Customs Act. On that there can be no dispute4. The proviso to Section 28(1) extends the period of limitation to five years in certain cases of collusion, wilful misstatement or suppression of facts by the assessee. In the case of suppression of facts the proviso would be attracted and the period of limitation would stand extended to five years. Therefore, when it was realised that so far as the two demand notices were concerned they were beyond the period of limitation prescribed by Section 28(1) (b) of the Customs Act, the Deputy Collector of Customs issued a notice dated 22-7-1985 in which for the first time the allegation in regard to suppression of facts came to be made. On the basis of that notice, it was stated that the two demand notices dated 27/28-12-1 984 were within time. It is interesting to note that even by this notice dated 22-7-1985 what was sought to be done was to relate back the matter to the two demand notices and overcome the difficulty of limitation by saying that since there was suppression those two demand notices were within time. Now, as pointed out earlier if action is contemplated under Section 28(l) (h) it is incumbent (or mandatory) on the part of the Department to serve the assessee a notice requiring him to show cause why he should not pay the amount specified therein. This requirement is in keeping with the principle of natural justice. Indisputably, no show- cause notice was issued to the assessee before the two demand notices were issued. Even the notice of 22-7-1985 is not "a show-cause notice" within the meaning of Section 28(1) of the Customs Act. It is only an answer to the assessees letter dated 1-2-1985 addressed to the Collector of Customs wherein he contended that the two demand notices were ultra vires and the Deputy Collector refers to the factum of suppression with a view to bringing those two notices within the period of limitation by the invocation of the proviso to Section 28(1) of the Customs Act. There was a nothing to stop the Department from issuing a proper show-cause notice, if suppression of fact was a valid ground for invoking Section 28(1) of the Customs Act. But instead of doing so, what the Deputy Collector does is to justify the two demand notices as being within time by pointing out that this was a case of suppression of facts and then stating in a cavalier fashion that if the assessee so desires he may approach the Assistant Collector for a hearing. It is incumbent on the part of the Department to issue a show-cause notice and thereby give the assessee an opportunity to make his representation as is envisaged by Section 28(2) of the Customs Act. It is a condition precedent. Instead of following that procedure the Department followed the circuitous method and left it to the assessee to approach the Assistant Collector of Customs, if he so desired. We are, therefore, of the opinion that the communication of 22-7-1985 could hardly be described as a show-cause notice under Section 28(1) of the Customs Act 5. The Tribunal has by the impugned order come to the conclusion and rightly in our opinion, that the communication of 22-7-1985 does not purport to be "a show-cause notice" and the two demand notices cannot be construed as show-cause notices as envisaged by the Act. It has further taken note of the fact that the two demand notices do not refer to any suppression of facts. On the question of suppression the Tribunal notices that there is no material tendered by the Department to indicate that there was any attempt on the part of the assessee to deceive the Government or induce the authorities to release the goods notwithstanding the expiry of the period of the exemption notification. The Tribunal notices that there is no active concealment; it rightly states that suppression envisages a deliberate or conscious omission to state a fact with the intention of deriving wrongful gain. It further points out that even the Department was aware that the outer date of the exemption notification had expired. In Bharat Surfactants (P) Ltd. v. Union of India a Constitution Bench of this Court had occasion to set out the procedure in detail to be followed in such cases. According to the procedure indicated in para 12 of the judgment, it is clear that the presentation of the manifest to the Customs authority could be effected before or after the arrival of the vessel and in the instant case (sic the presentation of) the manifest had been effected after the arrival of the vessels. Therefore, the authorities were also aware that the vessel had arrived after 31-12-1983, the last date for availing of the benefit of the exemption notification. The Tribunal, therefore, also came to the conclusion and in our opinion rightly, that the element of deliberate or conscious omission had not been established and, therefore, even on that count it did not uphold the Departments contention. We see no reason to take a different view
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### Explanation:
5. The Tribunal has by the impugned order come to the conclusion and rightly in our opinion, that the communication ofdoes not purport to be "anotice" and the two demand notices cannot be construed asnotices as envisaged by the Act. It has further taken note of the fact that the two demand notices do not refer to any suppression of facts. On the question of suppression the Tribunal notices that there is no material tendered by the Department to indicate that there was any attempt on the part of the assessee to deceive the Government or induce the authorities to release the goods notwithstanding the expiry of the period of the exemption notification. The Tribunal notices that there is no active concealment; it rightly states that suppression envisages a deliberate or conscious omission to state a fact with the intention of deriving wrongful gain. It further points out that even the Department was aware that the outer date of the exemption notification had expired. In Bharat Surfactants (P) Ltd. v. Union of India a Constitution Bench of this Court had occasion to set out the procedure in detail to be followed in such cases. According to the procedure indicated in para 12 of the judgment, it is clear that the presentation of the manifest to the Customs authority could be effected before or after the arrival of the vessel and in the instant case (sic the presentation of) the manifest had been effected after the arrival of the vessels. Therefore, the authorities were also aware that the vessel had arrived afterthe last date for availing of the benefit of the exemption notification. The Tribunal, therefore, also came to the conclusion and in our opinion rightly, that the element of deliberate or conscious omission had not been established and, therefore, even on that count it did not uphold the Departments contention. We see no reason to take a different view
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State Vs. R. Vasanthi Stanley and Ors | be used with care, caution, circumspection and courageous prudence." 11. Recently, in CBI v. Maninder Singh, 2015(4) Recent Apex Judgments (R.A.J.) 498 : 2015 (9) SCALE 365 , the allegation against the accused was that bill of lading presented by the proprietors of the accused firms were found forged and cases were registered under Section 120-B IPC read with Section 420 IPC and Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act, 1947 and further substantive offences under Sections 420, 467, 468 and 471 IPC. The accused person arrived at a settlement with the Bank and thereafter moved the High Court under Section 482 CrPC for quashing of the FIR. The High Court placed reliance on the decision in Nikhil Merchant (supra) and allowed the petition and directed for quashing of the criminal proceedings. This Court placed reliance on Vikram Anantrai Doshi and others (supra) and came to hold as follows:- "10. The allegation against the respondent is forgery for the purpose of cheating and use of forged documents as genuine in order to embezzle the public money. After facing such serious charges of forgery, the Respondent wants the proceedings to be quashed on account of settlement with the bank. The development in means of communication, science & technology etc. have led to an enormous increase in economic crimes viz. phishing, ATM frauds etc. which are being committed by intelligent but devious individuals involving huge sums of public or Government money. These are actually public wrongs or crimes committed against society and the gravity and magnitude attached to these offences is concentrated at public at large.11. The inherent power of the High Court Under Section 482 Code of Criminal Procedure should be sparingly used. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings. In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is a well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy." 12. Testing the present controversy on the anvil of the aforesaid principles, we are disposed to think that the High Court has been erroneously guided by the ambit and sweep of power under Section 482 CrPC for quashing the proceedings. It has absolutely fallaciously opined that the continuance of the proceeding will be the abuse of the process of the Court. It has been categorically held in Janta Dal v. H.S. Chowdhary, (1992) 4 SCC 305 , that the inherent power under Section 482 CrPC though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. In Inder Mohan Goswami (supra), it has been emphasised that inherent powers have to be exercised sparingly, carefully and with great caution.13. We will be failing in our duty unless we advert to the proponements propounded with regard to other aspects. They are really matters of concern and deserve to be addressed. The submission as put forth is that the first respondent is a lady and she was following the command of her husband and signed the documents without being aware about the transactions entered into by the husband and nature of the business. The allegation in the chargesheet is that she has signed the pronotes. That apart, as further alleged, she is a co-applicant in two cases and guarantor in other two cases. She was an Assistant Commissioner of Commercial Taxes and after taking voluntary retirement she has joined the public life, and became a member of the Rajya Sabha. Emphasis is also laid that she is a lady and there is no warrant to continue the criminal proceeding when she has paid the dues of the banks, and if anything further is due that shall be made good. The assertions as regards the ignorance are a mere pretence and sans substance given the facts. Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is, there are certain provisions in CrPC relating to exercise of jurisdiction under Section 437, etc. therein but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score.14. As far as the load on the criminal justice dispensation system is concerned it has an insegragable nexus with speedy trial. A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system. That can never be an acceptable principle or parameter, for that would amount to destroying the stem cells of law and order in many a realm and further strengthen the marrows of the unscrupulous litigations. Such a situation should never be conceived of. | 1[ds]11. The inherent power of the High Court Under Section 482 Code of Criminal Procedure should be sparingly used. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings. In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is a well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy.Testing the present controversy on the anvil of the aforesaid principles, we are disposed to think that the High Court has been erroneously guided by the ambit and sweep of power under Section 482 CrPC for quashing the proceedings. It has absolutely fallaciously opined that the continuance of the proceeding will be the abuse of the process of the Court. It has been categorically held in Janta Dal v. H.S. Chowdhary, (1992) 4 SCC 305 , that the inherent power under Section 482 CrPC though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. In Inder Mohan Goswami (supra), it has been emphasised that inherent powers have to be exercised sparingly, carefully and with great caution.13. We will be failing in our duty unless we advert to the proponements propounded with regard to other aspects. They are really matters of concern and deserve to be addressed. The submission as put forth is that the first respondent is a lady and she was following the command of her husband and signed the documents without being aware about the transactions entered into by the husband and nature of the business. The allegation in the chargesheet is that she has signed the pronotes. That apart, as further alleged, she is ain two cases and guarantor in other two cases. She was an Assistant Commissioner of Commercial Taxes and after taking voluntary retirement she has joined the public life, and became a member of the Rajya Sabha. Emphasis is also laid that she is a lady and there is no warrant to continue the criminal proceeding when she has paid the dues of the banks, and if anything further is due that shall be made good. The assertions as regards the ignorance are a mere pretence and sans substance given the facts. Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is, there are certain provisions in CrPC relating to exercise of jurisdiction under Section 437, etc. therein but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score.14. As far as the load on the criminal justice dispensation system is concerned it has an insegragable nexus with speedy trial. A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system. That can never be an acceptable principle or parameter, for that would amount to destroying the stem cells of law and order in many a realm and further strengthen the marrows of the unscrupulous litigations. Such a situation should never be conceived of. | 1 | 4,557 | 786 | ### 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:
be used with care, caution, circumspection and courageous prudence." 11. Recently, in CBI v. Maninder Singh, 2015(4) Recent Apex Judgments (R.A.J.) 498 : 2015 (9) SCALE 365 , the allegation against the accused was that bill of lading presented by the proprietors of the accused firms were found forged and cases were registered under Section 120-B IPC read with Section 420 IPC and Section 5(2) read with Section 5(1)(d) of Prevention of Corruption Act, 1947 and further substantive offences under Sections 420, 467, 468 and 471 IPC. The accused person arrived at a settlement with the Bank and thereafter moved the High Court under Section 482 CrPC for quashing of the FIR. The High Court placed reliance on the decision in Nikhil Merchant (supra) and allowed the petition and directed for quashing of the criminal proceedings. This Court placed reliance on Vikram Anantrai Doshi and others (supra) and came to hold as follows:- "10. The allegation against the respondent is forgery for the purpose of cheating and use of forged documents as genuine in order to embezzle the public money. After facing such serious charges of forgery, the Respondent wants the proceedings to be quashed on account of settlement with the bank. The development in means of communication, science & technology etc. have led to an enormous increase in economic crimes viz. phishing, ATM frauds etc. which are being committed by intelligent but devious individuals involving huge sums of public or Government money. These are actually public wrongs or crimes committed against society and the gravity and magnitude attached to these offences is concentrated at public at large.11. The inherent power of the High Court Under Section 482 Code of Criminal Procedure should be sparingly used. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings. In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is a well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy." 12. Testing the present controversy on the anvil of the aforesaid principles, we are disposed to think that the High Court has been erroneously guided by the ambit and sweep of power under Section 482 CrPC for quashing the proceedings. It has absolutely fallaciously opined that the continuance of the proceeding will be the abuse of the process of the Court. It has been categorically held in Janta Dal v. H.S. Chowdhary, (1992) 4 SCC 305 , that the inherent power under Section 482 CrPC though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. In Inder Mohan Goswami (supra), it has been emphasised that inherent powers have to be exercised sparingly, carefully and with great caution.13. We will be failing in our duty unless we advert to the proponements propounded with regard to other aspects. They are really matters of concern and deserve to be addressed. The submission as put forth is that the first respondent is a lady and she was following the command of her husband and signed the documents without being aware about the transactions entered into by the husband and nature of the business. The allegation in the chargesheet is that she has signed the pronotes. That apart, as further alleged, she is a co-applicant in two cases and guarantor in other two cases. She was an Assistant Commissioner of Commercial Taxes and after taking voluntary retirement she has joined the public life, and became a member of the Rajya Sabha. Emphasis is also laid that she is a lady and there is no warrant to continue the criminal proceeding when she has paid the dues of the banks, and if anything further is due that shall be made good. The assertions as regards the ignorance are a mere pretence and sans substance given the facts. Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is, there are certain provisions in CrPC relating to exercise of jurisdiction under Section 437, etc. therein but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score.14. As far as the load on the criminal justice dispensation system is concerned it has an insegragable nexus with speedy trial. A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system. That can never be an acceptable principle or parameter, for that would amount to destroying the stem cells of law and order in many a realm and further strengthen the marrows of the unscrupulous litigations. Such a situation should never be conceived of.
### Response:
1
### Explanation:
11. The inherent power of the High Court Under Section 482 Code of Criminal Procedure should be sparingly used. Only when the Court comes to the conclusion that there would be manifest injustice or there would be abuse of the process of the Court if such power is not exercised, Court would quash the proceedings. In economic offences Court must not only keep in view that money has been paid to the bank which has been defrauded but also the society at large. It is not a case of simple assault or a theft of a trivial amount; but the offence with which we are concerned is a well planned and was committed with a deliberate design with an eye of personal profit regardless of consequence to the society at large. To quash the proceeding merely on the ground that the accused has settled the amount with the bank would be a misplaced sympathy.Testing the present controversy on the anvil of the aforesaid principles, we are disposed to think that the High Court has been erroneously guided by the ambit and sweep of power under Section 482 CrPC for quashing the proceedings. It has absolutely fallaciously opined that the continuance of the proceeding will be the abuse of the process of the Court. It has been categorically held in Janta Dal v. H.S. Chowdhary, (1992) 4 SCC 305 , that the inherent power under Section 482 CrPC though unrestricted and undefined should not be capriciously or arbitrarily exercised, but should be exercised in appropriate cases, ex debito justitiae to do real and substantial justice for the administration of which alone the courts exist. In Inder Mohan Goswami (supra), it has been emphasised that inherent powers have to be exercised sparingly, carefully and with great caution.13. We will be failing in our duty unless we advert to the proponements propounded with regard to other aspects. They are really matters of concern and deserve to be addressed. The submission as put forth is that the first respondent is a lady and she was following the command of her husband and signed the documents without being aware about the transactions entered into by the husband and nature of the business. The allegation in the chargesheet is that she has signed the pronotes. That apart, as further alleged, she is ain two cases and guarantor in other two cases. She was an Assistant Commissioner of Commercial Taxes and after taking voluntary retirement she has joined the public life, and became a member of the Rajya Sabha. Emphasis is also laid that she is a lady and there is no warrant to continue the criminal proceeding when she has paid the dues of the banks, and if anything further is due that shall be made good. The assertions as regards the ignorance are a mere pretence and sans substance given the facts. Lack of awareness, knowledge or intent is neither to be considered nor accepted in economic offences. The submission assiduously presented on gender leaves us unimpressed. An offence under the criminal law is an offence and it does not depend upon the gender of an accused. True it is, there are certain provisions in CrPC relating to exercise of jurisdiction under Section 437, etc. therein but that altogether pertains to a different sphere. A person committing a murder or getting involved in a financial scam or forgery of documents, cannot claim discharge or acquittal on the ground of her gender as that is neither constitutionally nor statutorily a valid argument. The offence is gender neutral in this case. We say no more on this score.14. As far as the load on the criminal justice dispensation system is concerned it has an insegragable nexus with speedy trial. A grave criminal offence or serious economic offence or for that matter the offence that has the potentiality to create a dent in the financial health of the institutions, is not to be quashed on the ground that there is delay in trial or the principle that when the matter has been settled it should be quashed to avoid the load on the system. That can never be an acceptable principle or parameter, for that would amount to destroying the stem cells of law and order in many a realm and further strengthen the marrows of the unscrupulous litigations. Such a situation should never be conceived of.
|
Vijay Kumar Vs. Whirlpool Of India Ltd. | in the same. It is a package deal of give and take. That is why in the business world it is known as “golden handshake”. The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the scheme would be totally frustrated.” 11. In CEAT Ltd. V. Anand Abasaheb Hawaldar and Ors. (2006 (3) SCC 56 ) it has been held as under: “10. According to learned counsel for the appellant, a complaint of unfair labour practice can be made only by the existing employees. Under clause (5) of Section 3 of the Act the expression “employee” only covers those who are workmen under clause (s) of Section 2 of the Industrial Disputes Act, 1947 (in short the “ID Act”). The expression “workman” as defined in clause (s) of Section 2 of the ID Act relates to those who are existing employees. The only addition to existing employees, statutorily provided under Section 2(s) refers to dismissed, discharged and retrenched employees and their grievances can be looked into by the forums created under the Act. In the instant case, the complainants had resigned from service by voluntary retirement and, therefore, their cases are not covered by the expression “workman”. On the factual scenario, it is submitted that after the 337 employees had accepted VRS-I, others had raised disputes and had gone to Court. Order was passed for paying them the existing salary and other emoluments. This went on nearly two years and, therefore, with a view to curtail litigation a Memorandum of Understanding was arrived at in 1994. This basic difference in the factual background was not noticed by either the Industrial Court or the High Court.” 12. In U.P. State Road Transport Corporation v. Birendra Bhandari (2006 (10) SCC 211 ) it has been stated as under: “7. The benefit which can be enforced under Section 33-C(2) is a pre-existing benefit or one flowing from a pre-existing right.8. In the case of State Bank of India v. Ram Chandra Dubey & Ors. (2001 (1) SCC 73 ), this Court held as under:"7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.8. The principles enunciated in the decisions referred by either side can be summed up as follows:Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages." | 0[ds]8. The principles enunciated in the decisions referred by either side can be summed up as follows:Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back | 0 | 2,214 | 412 | ### 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:
in the same. It is a package deal of give and take. That is why in the business world it is known as “golden handshake”. The main purpose of paying this amount is to bring about a complete cessation of the jural relationship between the employer and the employee. After the amount is paid and the employee ceases to be under the employment of the company or the undertaking, he leaves with all his rights and there is no question of his again agitating for any kind of his past rights with his erstwhile employer including making any claim with regard to enhancement of pay scale for an earlier period. If the employee is still permitted to raise a grievance regarding enhancement of pay scale from a retrospective date, even after he has opted for Voluntary Retirement Scheme and has accepted the amount paid to him, the whole purpose of introducing the scheme would be totally frustrated.” 11. In CEAT Ltd. V. Anand Abasaheb Hawaldar and Ors. (2006 (3) SCC 56 ) it has been held as under: “10. According to learned counsel for the appellant, a complaint of unfair labour practice can be made only by the existing employees. Under clause (5) of Section 3 of the Act the expression “employee” only covers those who are workmen under clause (s) of Section 2 of the Industrial Disputes Act, 1947 (in short the “ID Act”). The expression “workman” as defined in clause (s) of Section 2 of the ID Act relates to those who are existing employees. The only addition to existing employees, statutorily provided under Section 2(s) refers to dismissed, discharged and retrenched employees and their grievances can be looked into by the forums created under the Act. In the instant case, the complainants had resigned from service by voluntary retirement and, therefore, their cases are not covered by the expression “workman”. On the factual scenario, it is submitted that after the 337 employees had accepted VRS-I, others had raised disputes and had gone to Court. Order was passed for paying them the existing salary and other emoluments. This went on nearly two years and, therefore, with a view to curtail litigation a Memorandum of Understanding was arrived at in 1994. This basic difference in the factual background was not noticed by either the Industrial Court or the High Court.” 12. In U.P. State Road Transport Corporation v. Birendra Bhandari (2006 (10) SCC 211 ) it has been stated as under: “7. The benefit which can be enforced under Section 33-C(2) is a pre-existing benefit or one flowing from a pre-existing right.8. In the case of State Bank of India v. Ram Chandra Dubey & Ors. (2001 (1) SCC 73 ), this Court held as under:"7. When a reference is made to an Industrial Tribunal to adjudicate the question not only as to whether the termination of a workman is justified or not but to grant appropriate relief, it would consist of examination of the question whether the reinstatement should be with full or partial back wages or none. Such a question is one of fact depending upon the evidence to be produced before the Tribunal. If after the termination of the employment, the workman is gainfully employed elsewhere it is one of the factors to be considered in determining whether or not reinstatement should be with full back wages or with continuity of employment. Such questions can be appropriately examined only in a reference. When a reference is made under Section 10 of the Act, all incidental questions arising thereto can be determined by the Tribunal and in this particular case, a specific question has been referred to the Tribunal as to the nature of relief to be granted to the workmen.8. The principles enunciated in the decisions referred by either side can be summed up as follows:Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back wages."
### Response:
0
### Explanation:
8. The principles enunciated in the decisions referred by either side can be summed up as follows:Whenever a workman is entitled to receive from his employer any money or any benefit which is capable of being computed in terms of money and which he is entitled to receive from his employer and is denied of such benefit can approach Labour Court under Section 33-C(2) of the Act. The benefit sought to be enforced under Section 33-C(2) of the Act is necessarily a pre-existing benefit or one flowing from a pre-existing right. The difference between a pre-existing right or benefit on one hand and the right or benefit, which is considered just and fair on the other hand is vital. The former falls within jurisdiction of Labour Court exercising powers under Section 33-C(2) of the Act while the latter does not. It cannot be spelt out from the award in the present case that such a right or benefit has accrued to the workman as the specific question of the relief granted is confined only to the reinstatement without stating anything more as to the back wages. Hence that relief must be deemed to have been denied, for what is claimed but not granted necessarily gets denied in judicial or quasi-judicial proceeding. Further when a question arises as to the adjudication of a claim for back wages all relevant circumstances which will have to be gone into, are to be considered in a judicious manner. Therefore, the appropriate forum wherein such question of back wages could be decided is only in a proceeding to whom a reference under Section 10 of the Act is made. To state that merely upon reinstatement, a workman would be entitled, under the terms of award, to all his arrears of pay and allowances would be incorrect because several factors will have to be considered, as stated earlier, to find out whether the workman is entitled to back wages at all and to what extent. Therefore, we are of the view that the High Court ought not to have presumed that the award of the Labour Court for grant of back wages is implied in the relief of reinstatement or that the award of reinstatement itself conferred right for claim of back
|
Oriental Insurance Co. Ltd Vs. M/S. Ozma Shipping Company | this Act, and in the absence of fraud, the value fixed by the policy is, as between the insurer and assured, conclusive of the insurable value of the subject intended to be insured, whether the loss be total or partial.(4) Unless the policy otherwise provides, the value fixed by the policy is not conclusive for the purpose of determining whether there has been a constructive total loss." Section 68 reads as under:- "Total Loss - Subject to the provisions of this Act, and to any express provision in the policy, where there is a total loss of the subject matter insured-(1) if the policy be a valued policy, the measure of indemnity is the sum fixed by the policy;(2) if the policy be an unvalued policy, the measure of indemnity is the insurable value of the subject- matter insured." 5. It is clear from the section 29(3) that the value fixed by the policy between the insurer and the assured is conclusive of the insurance value.6. The vessel sailed from Beypore to Kavarati loaded with goods at around 3 p.m. on 23.4.1988. The said vessel sank with the entire cargo.7. Respondent no.1 lodged the insurance claim with the appellant insurance company on 6.5.1989. The appellant insurance company immediately deputed the Surveyor and carried out the spot survey. The Surveyor submitted the report advising carrying out proper investigation. The appellant insurance company agreed to settle the claim of respondent at Rs.15 lacs.8. Respondent no.1 filed a complaint before the National Consumer Disputes Redressal Commission (For short, the `National Commission). The complainant prayed that the insurance company be directed to pay the entire insured amount of Rs.21,50,000/- with 18% rate of interest from the date of calamity i.e. from 23rd April, 1988 along with the compensation and costs.9. The appellant insurance company submitted before the National Commission that the valuation report of the Surveyor of M/s Ozma Shipping Company was not correct because the value of the said vessel was not more than Rs.15 lacs, therefore, respondent No.1 is not entitled to an amount more than Rs.15 lacs.10. It was stated by the appellant company that in the proposal form it was nowhere stated that it had remodeled and reconditioned the vessel by spending a sum of over Rs.5 lacs in the year 1989 and it was alleged for the first time vide order dated 28th February, 1990. 11. According to the appellant insurance company the market value of the vessel would decrease year after year and it could not enhance to such an exorbitant figure by mere reconditioning, painting and remodeling. The insurance coverage was obtained for a higher sum insured than the actual cost by deliberately concealing the material facts. These pleas of the appellant company are totally devoid of any merit when the Surveyor appointed by the insurance company found the value of the vessel as Rs.21,50,000/- and the appellant company accepted the insurance premium on Rs.21,50,000/-. According to the National Commission, as the Surveyor took note of the fact that a major overhauling of the engine and accessories and reconditioning and painting of the Hull had been carried out during 1987, there seems to be no justification from deviating from that figure. 12. There are following undisputed and uncontroverted facts in this case:- (I) vessel sailed form Beypore to Kavarati loaded with goods on 23.4.1988 and according to the Surveyor after inspecting the vessel he certified the market value of the vessel as Rs.21,50,000/-.(II) The premium was admittedly paid on that amount.(III) The said vessel sank with the entire cargo. 13. The National Commission held that on consideration of the relevant factors the valuation of the vessel was valued as Rs.21,50,000/-. On the basis of the valuation, the insurance premium was paid on the amount of Rs.21,50,000/-. The National Commission also came to the definite finding that the complainant was not guilty of any concealment of facts. 14. On consideration of the totality of the facts and circumstances, the impugned judgment of the National Commission is absolutely correct and the National Commission was fully justified in directing the insurance company to pay the value of the entire vessel Rs.21,50,000/- with interest at the rate of 12% per annum from 4th April, 1991. 15. It may be pertinent to mention that when the valuation of the vessel had been carried out by the Surveyour of the insurance company who came to the conclusion that the value of the vessel would be Rs.21,50,000/- then the Insurance Company should not hesitate to pay the amount which is legitimately due to the complainant particularly when there is no dispute that the entire vessel with cargo insured with the appellant sank while the vessel was sailing from Beypore to Kavarati. 16. We have heard the learned counsel for the parties and carefully perused the impugned judgment. In our considered view no interference is called for. We make it clear that in case the entire amount in the sum of Rs.21,50,000/- has not been paid to the respondent company, the same would be paid as expeditiously as possible and in any event within six weeks from the date of communication of this judgment. If some amount has been paid by the appellant insurance company to respondent No.1 in that event they would ensure that the adjustment of that amount is done and the remaining amount be paid to respondent No.1 within six weeks from the date of this judgment along with interest.17. Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insurers should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies. Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.18. The tendency of approaching the Apex Court in every such case also needs to be effectively curbed. | 0[ds]16. We have heard the learned counsel for the parties and carefully perused the impugned judgment. In our considered view no interference is called for. We make it clear that in case the entire amount in the sum of Rs.21,50,000/- has not been paid to the respondent company, the same would be paid as expeditiously as possible and in any event within six weeks from the date of communication of this judgment. If some amount has been paid by the appellant insurance company to respondent No.1 in that event they would ensure that the adjustment of that amount is done and the remaining amount be paid to respondent No.1 within six weeks from the date of this judgment along with interest.17. Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insurers should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies. Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.18. The tendency of approaching the Apex Court in every such case also needs to be effectively curbed. | 0 | 1,387 | 227 | ### Instruction:
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this Act, and in the absence of fraud, the value fixed by the policy is, as between the insurer and assured, conclusive of the insurable value of the subject intended to be insured, whether the loss be total or partial.(4) Unless the policy otherwise provides, the value fixed by the policy is not conclusive for the purpose of determining whether there has been a constructive total loss." Section 68 reads as under:- "Total Loss - Subject to the provisions of this Act, and to any express provision in the policy, where there is a total loss of the subject matter insured-(1) if the policy be a valued policy, the measure of indemnity is the sum fixed by the policy;(2) if the policy be an unvalued policy, the measure of indemnity is the insurable value of the subject- matter insured." 5. It is clear from the section 29(3) that the value fixed by the policy between the insurer and the assured is conclusive of the insurance value.6. The vessel sailed from Beypore to Kavarati loaded with goods at around 3 p.m. on 23.4.1988. The said vessel sank with the entire cargo.7. Respondent no.1 lodged the insurance claim with the appellant insurance company on 6.5.1989. The appellant insurance company immediately deputed the Surveyor and carried out the spot survey. The Surveyor submitted the report advising carrying out proper investigation. The appellant insurance company agreed to settle the claim of respondent at Rs.15 lacs.8. Respondent no.1 filed a complaint before the National Consumer Disputes Redressal Commission (For short, the `National Commission). The complainant prayed that the insurance company be directed to pay the entire insured amount of Rs.21,50,000/- with 18% rate of interest from the date of calamity i.e. from 23rd April, 1988 along with the compensation and costs.9. The appellant insurance company submitted before the National Commission that the valuation report of the Surveyor of M/s Ozma Shipping Company was not correct because the value of the said vessel was not more than Rs.15 lacs, therefore, respondent No.1 is not entitled to an amount more than Rs.15 lacs.10. It was stated by the appellant company that in the proposal form it was nowhere stated that it had remodeled and reconditioned the vessel by spending a sum of over Rs.5 lacs in the year 1989 and it was alleged for the first time vide order dated 28th February, 1990. 11. According to the appellant insurance company the market value of the vessel would decrease year after year and it could not enhance to such an exorbitant figure by mere reconditioning, painting and remodeling. The insurance coverage was obtained for a higher sum insured than the actual cost by deliberately concealing the material facts. These pleas of the appellant company are totally devoid of any merit when the Surveyor appointed by the insurance company found the value of the vessel as Rs.21,50,000/- and the appellant company accepted the insurance premium on Rs.21,50,000/-. According to the National Commission, as the Surveyor took note of the fact that a major overhauling of the engine and accessories and reconditioning and painting of the Hull had been carried out during 1987, there seems to be no justification from deviating from that figure. 12. There are following undisputed and uncontroverted facts in this case:- (I) vessel sailed form Beypore to Kavarati loaded with goods on 23.4.1988 and according to the Surveyor after inspecting the vessel he certified the market value of the vessel as Rs.21,50,000/-.(II) The premium was admittedly paid on that amount.(III) The said vessel sank with the entire cargo. 13. The National Commission held that on consideration of the relevant factors the valuation of the vessel was valued as Rs.21,50,000/-. On the basis of the valuation, the insurance premium was paid on the amount of Rs.21,50,000/-. The National Commission also came to the definite finding that the complainant was not guilty of any concealment of facts. 14. On consideration of the totality of the facts and circumstances, the impugned judgment of the National Commission is absolutely correct and the National Commission was fully justified in directing the insurance company to pay the value of the entire vessel Rs.21,50,000/- with interest at the rate of 12% per annum from 4th April, 1991. 15. It may be pertinent to mention that when the valuation of the vessel had been carried out by the Surveyour of the insurance company who came to the conclusion that the value of the vessel would be Rs.21,50,000/- then the Insurance Company should not hesitate to pay the amount which is legitimately due to the complainant particularly when there is no dispute that the entire vessel with cargo insured with the appellant sank while the vessel was sailing from Beypore to Kavarati. 16. We have heard the learned counsel for the parties and carefully perused the impugned judgment. In our considered view no interference is called for. We make it clear that in case the entire amount in the sum of Rs.21,50,000/- has not been paid to the respondent company, the same would be paid as expeditiously as possible and in any event within six weeks from the date of communication of this judgment. If some amount has been paid by the appellant insurance company to respondent No.1 in that event they would ensure that the adjustment of that amount is done and the remaining amount be paid to respondent No.1 within six weeks from the date of this judgment along with interest.17. Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insurers should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies. Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.18. The tendency of approaching the Apex Court in every such case also needs to be effectively curbed.
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16. We have heard the learned counsel for the parties and carefully perused the impugned judgment. In our considered view no interference is called for. We make it clear that in case the entire amount in the sum of Rs.21,50,000/- has not been paid to the respondent company, the same would be paid as expeditiously as possible and in any event within six weeks from the date of communication of this judgment. If some amount has been paid by the appellant insurance company to respondent No.1 in that event they would ensure that the adjustment of that amount is done and the remaining amount be paid to respondent No.1 within six weeks from the date of this judgment along with interest.17. Before parting with this case we would like to observe that the insurance companies in genuine and bona fide claims of the insurers should not adopt the attitude of avoiding payments on one pretext or the other. This attitude puts a serious question mark on their credibility and trustworthiness of the insurance companies. Incidentally by adopting honest approach and attitude the insurance companies would be able to save enormous litigation costs and the interest liability.18. The tendency of approaching the Apex Court in every such case also needs to be effectively curbed.
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United Bank of India Ltd Vs. M/s. Lekharam Sonaram & Co. & Others | I apprehend that that general rule will not apply when you have a deposit accompanied by an actual written charge. In that case you must refer to the terms of the written document and any implication that might be raised, supposing there was no document, is put out of the and reduced to silence by the documents by which alone you must be governed. In Sundarachariar v. Narayan Ayyar, 58 Ind App 68 : (AIR 1931 PC 36 ), the plaintiff had verbally agreed at Madras to make a further advance to the defendants, making Rs. 60,000 in all upon the deposit of certain documents of title. The defendants agent signed and handed to the plaintiff a memorandum stating As agreed upon in person I have delivered to you the undermentioned documents as security - a list of the documents following, also a promissory note for Rs. 60,000. After examination of the documents the agreed amount was handed over to the plaintiff. It was held by the Judicial Committee that the memorandum was not a document which required registration, even if the agreed advance was conditional upon it being given; and that, there being no written agreement, the memorandum as well as oral evidence, was admissible in evidence to prove the intent to create a security by deposit of the documents named. The same view was expressed by this Court in Rachpal Mahraj v. Bhagwandas, 1950 SCR 548 : (AIR.1950 SC 272) , in which it was pointed out that the question whether a memorandum of deposit of title deeds is compulsorily registrable under S.17 of the Indian Registration Act, 1908 depends on whether the parties intended to reduce their bargain regarding the deposit to the form of a document. If so, the document required registration. If, on the other hand, its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so, there being no express bargain, the document being merely evidential did not require registration. In that case, accounts were taken relating to the appellants dealings with the respondents on a certain date and the appellant gave certain title deeds to the respondents for being held as security for the amounts then found due and which may become due, and on the same day the appellant gave a memorandum to the respondents in the form of a letter addressed to the respondents which stated as follows : We write to put on record that to secure the repayment of the money already due to you from us on account of the business transactions between yourselves and ourselves and the money that may hereafter become due on account of such transactions we have this day deposited with you the following title deeds in Calcutta at your place of business at No. 7 Sambhu Mullick Lane, relating to our properties at Samastipur with intent to create an equitable mortgage on the said properties to secure all moneys including interest that may be found due and payable by us to you on account of the said transactions..... It was held by this Court that the parties did not intend to create a charge by the execution of the document, but merely to record a transaction which had already been concluded and under which rights and liabilities had already been created and the document did not require registration. 8. Applying the principle to the present case, we consider that the letter at Ex. 7(a) was not meant to be an integral part of the transaction between the parties. The letter does not mention what was the principal amount borrowed or to be borrowed. Neither does it refer to rate of interest for the loan. It is important to notice that the letter does not mention details of title deeds which are to be deposited with the plaintiff-bank. We are, therefore, of the opinion that the view of the High Court with regard to the construction of Ex. 7(a) is erroneous and the document was not intended to be an integral part of the transaction and did not, by itself, operate to create an interest in the immovable property. It follows, therefore, that the document- Ex. 7 (a) - did not require registration under S. 17 of the Indian Registration Act. 9. On behalf of the respondents it was argued in the alternative that Exs. 7 (b) and 12 were integral parts of the transaction and would require registration. We are unable to accept this argument as correct. As the High Court has pointed out, the letter written by Sonaram Ex. 7 (b) - is not of much consequence, for it does not contain the material particulars of the loan and does not mention details of title deeds intended to be deposited with the plaintiff-bank. On the other hand, the letter - Ex. 7(b)suggests that the transaction was not finally completed as Babulal Ram-Defendant No.4 - was authorised in the letter to negotiate further in this respect. As regards Ex.12 also, it is not possible to accept the argument of the respondents that it created a charge for the reason that the language in Ex. 12 suggests that it recorded a transaction which had already been concluded and under which rights and liabilities had already been concluded and under which rights and liabilities had already been agreed upon. It is also significant that Ex. 12 is written not by Lekharam -the Karta of the joint family-but by Babulal Ram. It recites that he had deposited the title deeds with an intent to create an equitable mortgage upon all my rights, title and interest in the said properties. The language of Ex. 12 is identical in material respects with the language of the document construed by this Court in 1950 SCR 548 : (AIR 1950 SC 272 ), and is covered by the decision in that case. We accordingly reject the argument addressed by the learned Counsel for the respondents on this aspect of the case. | 1[ds]8. Applying the principle to the present case, we consider that the letter at Ex. 7(a) was not meant to be an integral part of the transaction between the parties. The letter does not mention what was the principal amount borrowed or to be borrowed. Neither does it refer to rate of interest for the loan. It is important to notice that the letter does not mention details of title deeds which are to be deposited with the. We are, therefore, of the opinion that the view of the High Court with regard to the construction of Ex. 7(a) is erroneous and the document was not intended to be an integral part of the transaction and did not, by itself, operate to create an interest in the immovable property. It follows, therefore, that the documentdid not require registration under S. 17 of the Indian Registration ActWe are unable to accept this argument as correct. As the High Court has pointed out, the letter written by Sonaram Ex. 7 (b)is not of much consequence, for it does not contain the material particulars of the loan and does not mention details of title deeds intended to be deposited with the. On the other hand, the letterEx. 7(b)suggests that the transaction was not finally completed as Babulalwas authorised in the letter to negotiate further in this respect. As regards Ex.12 also, it is not possible to accept the argument of the respondents that it created a charge for the reason that the language in Ex. 12 suggests that it recorded a transaction which had already been concluded and under which rights and liabilities had already been concluded and under which rights and liabilities had already been agreed upon. It is also significant that Ex. 12 is written not by Lekharamthe Karta of the jointt by Babulal Ram. It recites that he had deposited the title deeds with an intent to create an equitable mortgage upon all my rights, title and interest in the said properties. The language of Ex. 12 is identical in material respects with the language of the document construed by this Court in 1950 SCR 548 : (AIR 1950 SC 272 ), and is covered by the decision in that case. We accordingly reject the argument addressed by the learned Counsel for the respondents on this aspect of the case | 1 | 2,996 | 441 | ### Instruction:
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I apprehend that that general rule will not apply when you have a deposit accompanied by an actual written charge. In that case you must refer to the terms of the written document and any implication that might be raised, supposing there was no document, is put out of the and reduced to silence by the documents by which alone you must be governed. In Sundarachariar v. Narayan Ayyar, 58 Ind App 68 : (AIR 1931 PC 36 ), the plaintiff had verbally agreed at Madras to make a further advance to the defendants, making Rs. 60,000 in all upon the deposit of certain documents of title. The defendants agent signed and handed to the plaintiff a memorandum stating As agreed upon in person I have delivered to you the undermentioned documents as security - a list of the documents following, also a promissory note for Rs. 60,000. After examination of the documents the agreed amount was handed over to the plaintiff. It was held by the Judicial Committee that the memorandum was not a document which required registration, even if the agreed advance was conditional upon it being given; and that, there being no written agreement, the memorandum as well as oral evidence, was admissible in evidence to prove the intent to create a security by deposit of the documents named. The same view was expressed by this Court in Rachpal Mahraj v. Bhagwandas, 1950 SCR 548 : (AIR.1950 SC 272) , in which it was pointed out that the question whether a memorandum of deposit of title deeds is compulsorily registrable under S.17 of the Indian Registration Act, 1908 depends on whether the parties intended to reduce their bargain regarding the deposit to the form of a document. If so, the document required registration. If, on the other hand, its proper construction and the surrounding circumstances lead to the conclusion that the parties did not intend to do so, there being no express bargain, the document being merely evidential did not require registration. In that case, accounts were taken relating to the appellants dealings with the respondents on a certain date and the appellant gave certain title deeds to the respondents for being held as security for the amounts then found due and which may become due, and on the same day the appellant gave a memorandum to the respondents in the form of a letter addressed to the respondents which stated as follows : We write to put on record that to secure the repayment of the money already due to you from us on account of the business transactions between yourselves and ourselves and the money that may hereafter become due on account of such transactions we have this day deposited with you the following title deeds in Calcutta at your place of business at No. 7 Sambhu Mullick Lane, relating to our properties at Samastipur with intent to create an equitable mortgage on the said properties to secure all moneys including interest that may be found due and payable by us to you on account of the said transactions..... It was held by this Court that the parties did not intend to create a charge by the execution of the document, but merely to record a transaction which had already been concluded and under which rights and liabilities had already been created and the document did not require registration. 8. Applying the principle to the present case, we consider that the letter at Ex. 7(a) was not meant to be an integral part of the transaction between the parties. The letter does not mention what was the principal amount borrowed or to be borrowed. Neither does it refer to rate of interest for the loan. It is important to notice that the letter does not mention details of title deeds which are to be deposited with the plaintiff-bank. We are, therefore, of the opinion that the view of the High Court with regard to the construction of Ex. 7(a) is erroneous and the document was not intended to be an integral part of the transaction and did not, by itself, operate to create an interest in the immovable property. It follows, therefore, that the document- Ex. 7 (a) - did not require registration under S. 17 of the Indian Registration Act. 9. On behalf of the respondents it was argued in the alternative that Exs. 7 (b) and 12 were integral parts of the transaction and would require registration. We are unable to accept this argument as correct. As the High Court has pointed out, the letter written by Sonaram Ex. 7 (b) - is not of much consequence, for it does not contain the material particulars of the loan and does not mention details of title deeds intended to be deposited with the plaintiff-bank. On the other hand, the letter - Ex. 7(b)suggests that the transaction was not finally completed as Babulal Ram-Defendant No.4 - was authorised in the letter to negotiate further in this respect. As regards Ex.12 also, it is not possible to accept the argument of the respondents that it created a charge for the reason that the language in Ex. 12 suggests that it recorded a transaction which had already been concluded and under which rights and liabilities had already been concluded and under which rights and liabilities had already been agreed upon. It is also significant that Ex. 12 is written not by Lekharam -the Karta of the joint family-but by Babulal Ram. It recites that he had deposited the title deeds with an intent to create an equitable mortgage upon all my rights, title and interest in the said properties. The language of Ex. 12 is identical in material respects with the language of the document construed by this Court in 1950 SCR 548 : (AIR 1950 SC 272 ), and is covered by the decision in that case. We accordingly reject the argument addressed by the learned Counsel for the respondents on this aspect of the case.
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8. Applying the principle to the present case, we consider that the letter at Ex. 7(a) was not meant to be an integral part of the transaction between the parties. The letter does not mention what was the principal amount borrowed or to be borrowed. Neither does it refer to rate of interest for the loan. It is important to notice that the letter does not mention details of title deeds which are to be deposited with the. We are, therefore, of the opinion that the view of the High Court with regard to the construction of Ex. 7(a) is erroneous and the document was not intended to be an integral part of the transaction and did not, by itself, operate to create an interest in the immovable property. It follows, therefore, that the documentdid not require registration under S. 17 of the Indian Registration ActWe are unable to accept this argument as correct. As the High Court has pointed out, the letter written by Sonaram Ex. 7 (b)is not of much consequence, for it does not contain the material particulars of the loan and does not mention details of title deeds intended to be deposited with the. On the other hand, the letterEx. 7(b)suggests that the transaction was not finally completed as Babulalwas authorised in the letter to negotiate further in this respect. As regards Ex.12 also, it is not possible to accept the argument of the respondents that it created a charge for the reason that the language in Ex. 12 suggests that it recorded a transaction which had already been concluded and under which rights and liabilities had already been concluded and under which rights and liabilities had already been agreed upon. It is also significant that Ex. 12 is written not by Lekharamthe Karta of the jointt by Babulal Ram. It recites that he had deposited the title deeds with an intent to create an equitable mortgage upon all my rights, title and interest in the said properties. The language of Ex. 12 is identical in material respects with the language of the document construed by this Court in 1950 SCR 548 : (AIR 1950 SC 272 ), and is covered by the decision in that case. We accordingly reject the argument addressed by the learned Counsel for the respondents on this aspect of the case
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Vijay Pratap Singh & Another Vs. Dukh Haran Nath Singh & Another | propose to express any opinion on the question whether on the death of Jagdamba Devi the estate devolved under S. 22 (10) of Act 1 of 1869 upon Ramjiwan Misir and the plaintiff as members of a coparcenary. Even if that claim is inconsistent with the words of S. 22(10) of Act I of 1869 on which the plaintiff himself relies, the plaintiff had an alternative claim that the estate had become non-taluqdari by virtue of the will and "the acts and declarations" of Maharaja Pratap Narain. In support of this claim, S. 15 of Act I of 1869, before it was amended by U. P. Act III of 1910, is relied upon. At the time when Maharaja Pratap Narain died, S. 15 of the Act stood as follows:-"If any taluqdar or grantee shall hereto before have transferred or bequeathed, or if any taluqdar or grantee or his heir or legatee shall hereafter transfer or bequeath, to any person not being a taluqdar or grantee the whole or any portion of his estate, and such person would not have succeeded according to, the provisions of this Act to the estate or to a portion thereof if the transferor or testator had died without having made the transfer and intestate, the transfer of and succession to the properly so transferred or bequeathed shall be regulated by the rules which would have governed the transfer of and succession to such property if the transferee or legatee had bought the same from a person not being a taluqdar or grantee."It is true that by S. 8 of Act III of 1910, the section has been substantially modified and reads as follows :-"If any taluqdar or grantee, or his heir or legatees, shall heretofore have transferred or bequeathed, or if any taluqdar or grantee, or his heir or legatee, shall hereafter transfer or bequeath the whole or any portion of his estate to any person who did not at the time when the transfer or bequest took effect belong to ant of the classes specified in S. 14, the transfer of and succession to the property so transferred or bequeathed shall be regulated by the rules which would have governed the transfer of and succession to such property if the transferee or legatee had bought the same from a person not being a taluqdar or grantee, heir or legatee." By S. 21 of the Amending Act III of 1910 a partial retrospective operation was given to the amended section.The retrospective operation was limited by the proviso which enacted that nothing contained in the amending section shall affect suits pending at the commencement of the Amending Act, or shall be deemed to vest in or confer upon any person any right or title to any estate, or any portion thereof, or any interest therein, which is, at the commencement of the Amending Act, vested in any other person who would have been entitled to retain the same if the Amending Act had not been passed, and the right or title of such other person shall not be affected by anything contained in the said section.11. Mr. Agarwalla, appearing on behalf of the first defendant Dukh Haran Singh, has contended that in view of the retrospective operation given to S. 15, as amended, the claim of the plaintiff that the taluqdari character of the estate is destroyed has no force and he has invited our attention to two decisions of the Oudh Chief Court in Nageshar Sahai v. Shiam Bahadur, AIR 1922 Oudh 231 and Mohammad Ali Khan v. Nisar Ali Khan, AIR 1928 Oudh 67. But we need express no opinion on the correctness or otherwise of these decisions. An enquiry whether by virtue of certain provisions of the statute on which the first defendant relies, the plaintiff may not be entitled to the estate is as already observed, not contemplated to be made in considering a petition for leave to sue in forma pauperis. The true effect of the amended S. 15 of the Oudh Estates Act, I of 1869, is a complicated question of law which the Court will not proceed to determine in ascertaining whether the petition for leave to sue discloses a cause of action.12. The High Court, in our judgment, was in error in observing that there was nothing in the plaint to show that Ganga Dutt succeeded to the estate because he was the nearest male reversioner under the ordinary Hindu Law. The plaintiff has emphatically made that assertion: whether the claim to relief on the basis of that assertion was justified must be adjudicated at the trial of the suit, and not in deciding whether the plaintiff should be permitted to sue in forma pauperis.13. We are also of the view that the High Court was in error in holding that by an application to sue in forma pauperis, the applicant prays for relief personal to himself. An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by O. 33 of the Code of Civil Procedure is presented and O. 1, R. 10 of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which court fee had been duly paid. It is true that a person who claims to join a petitioner praying for leave to sue in forma pauperis must himself be a pauper. But his claim to join by transposition as an applicant must be investigated; it is not liable to be rejected on the ground that the claim made by the original applicant is personal to himself. | 1[ds]7. We are unable to agree with the view of the High Court that the petition filed by the plaintiff did not disclose a cause of action, or that O. 1, r. 10 of the Code of Civil. Procedure cannot properly be resorted to for transposing a party in a petition for leave to sue in forma pauperis. The plaintiff had by his plaint set up an alternative case. In the first instance, he pleaded that the will alleged to be executed by Maharaja Pratap Narain on July 20, 1891 was "void and ineffective" and the estate devolved upon Ram Jiwan and the plaintiff as members of a coparcenary: alternatively he pleaded that even if the will was valid, by the terms thereof and by the other acts and declarations of Maharaja Pratap Narain Singh, the estate was taken out "of the purview of Act I of 1869" and on the death of Maharani Jagdamba Devi the property devolved upon Ganga Dutt the nearest reversioner under the Hindu law and on his death it devolved upon the plaintiff and upon his father Ram Jiwan Misir.It does not appear that any objection was raised as to the existence of prohibitions (c) and (d) set out in. 5, and the Subordinate Judge disallowed the objection that the petition was not framed and presented as prescribed by rules 2 and 3. He did not consider the question whether the plaintiff was a pauper. He rejected the application only on the ground that it did not show a cause of action, and the High Court confirmed the order also on that ground. By the express terms of r. 5, cl. (d), the court is concerned to ascertain whether the allegations made in the petition show a cause of action. The court has not to see whether the claim made by the petitioner is likely to succeed: it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him. By the Statute, the jurisdiction of the Court is restricted to ascertaining whether on the allegations a cause of action is shown : the jurisdiction does not extend to trial of issues which must fairly be left for decision at the hearing of the suit.10. We do not propose to express any opinion on the question whether on the death of Jagdamba Devi the estate devolved under S. 22 (10) of Act 1 of 1869 upon Ramjiwan Misir and the plaintiff as members of a coparcenary. Even if that claim is inconsistent with the words of S. 22(10) of Act I of 1869 on which the plaintiff himself relies, the plaintiff had an alternative claim that the estate had become non-taluqdari by virtue of the will and "the acts and declarations" of Maharaja Pratap Narain. In support of this claim, S. 15 of Act I of 1869, before it was amended by U. P. Act III of 1910, is reliedwe need express no opinion on the correctness or otherwise of these decisions. An enquiry whether by virtue of certain provisions of the statute on which the first defendant relies, the plaintiff may not be entitled to the estate is as already observed, not contemplated to be made in considering a petition for leave to sue in forma pauperis. The true effect of the amended S. 15 of the Oudh Estates Act, I of 1869, is a complicated question of law which the Court will not proceed to determine in ascertaining whether the petition for leave to sue discloses a cause of action.12. The High Court, in our judgment, was in error in observing that there was nothing in the plaint to show that Ganga Dutt succeeded to the estate because he was the nearest male reversioner under the ordinary Hindu Law. The plaintiff has emphatically made that assertion: whether the claim to relief on the basis of that assertion was justified must be adjudicated at the trial of the suit, and not in deciding whether the plaintiff should be permitted to sue in forma pauperis.13. We are also of the view that the High Court was in error in holding that by an application to sue in forma pauperis, the applicant prays for relief personal to himself. An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by O. 33 of theCode of Civil Procedure is presented and O. 1, R. 10 of theCode of Civil Procedure would be as much applicable in such a suit as in a suit in which court fee had been duly paid. It is true that a person who claims to join a petitioner praying for leave to sue in forma pauperis must himself be a pauper. But his claim to join by transposition as an applicant must be investigated; it is not liable to be rejected on the ground that the claim made by the original applicant is personal to himself. | 1 | 3,284 | 1,119 | ### Instruction:
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propose to express any opinion on the question whether on the death of Jagdamba Devi the estate devolved under S. 22 (10) of Act 1 of 1869 upon Ramjiwan Misir and the plaintiff as members of a coparcenary. Even if that claim is inconsistent with the words of S. 22(10) of Act I of 1869 on which the plaintiff himself relies, the plaintiff had an alternative claim that the estate had become non-taluqdari by virtue of the will and "the acts and declarations" of Maharaja Pratap Narain. In support of this claim, S. 15 of Act I of 1869, before it was amended by U. P. Act III of 1910, is relied upon. At the time when Maharaja Pratap Narain died, S. 15 of the Act stood as follows:-"If any taluqdar or grantee shall hereto before have transferred or bequeathed, or if any taluqdar or grantee or his heir or legatee shall hereafter transfer or bequeath, to any person not being a taluqdar or grantee the whole or any portion of his estate, and such person would not have succeeded according to, the provisions of this Act to the estate or to a portion thereof if the transferor or testator had died without having made the transfer and intestate, the transfer of and succession to the properly so transferred or bequeathed shall be regulated by the rules which would have governed the transfer of and succession to such property if the transferee or legatee had bought the same from a person not being a taluqdar or grantee."It is true that by S. 8 of Act III of 1910, the section has been substantially modified and reads as follows :-"If any taluqdar or grantee, or his heir or legatees, shall heretofore have transferred or bequeathed, or if any taluqdar or grantee, or his heir or legatee, shall hereafter transfer or bequeath the whole or any portion of his estate to any person who did not at the time when the transfer or bequest took effect belong to ant of the classes specified in S. 14, the transfer of and succession to the property so transferred or bequeathed shall be regulated by the rules which would have governed the transfer of and succession to such property if the transferee or legatee had bought the same from a person not being a taluqdar or grantee, heir or legatee." By S. 21 of the Amending Act III of 1910 a partial retrospective operation was given to the amended section.The retrospective operation was limited by the proviso which enacted that nothing contained in the amending section shall affect suits pending at the commencement of the Amending Act, or shall be deemed to vest in or confer upon any person any right or title to any estate, or any portion thereof, or any interest therein, which is, at the commencement of the Amending Act, vested in any other person who would have been entitled to retain the same if the Amending Act had not been passed, and the right or title of such other person shall not be affected by anything contained in the said section.11. Mr. Agarwalla, appearing on behalf of the first defendant Dukh Haran Singh, has contended that in view of the retrospective operation given to S. 15, as amended, the claim of the plaintiff that the taluqdari character of the estate is destroyed has no force and he has invited our attention to two decisions of the Oudh Chief Court in Nageshar Sahai v. Shiam Bahadur, AIR 1922 Oudh 231 and Mohammad Ali Khan v. Nisar Ali Khan, AIR 1928 Oudh 67. But we need express no opinion on the correctness or otherwise of these decisions. An enquiry whether by virtue of certain provisions of the statute on which the first defendant relies, the plaintiff may not be entitled to the estate is as already observed, not contemplated to be made in considering a petition for leave to sue in forma pauperis. The true effect of the amended S. 15 of the Oudh Estates Act, I of 1869, is a complicated question of law which the Court will not proceed to determine in ascertaining whether the petition for leave to sue discloses a cause of action.12. The High Court, in our judgment, was in error in observing that there was nothing in the plaint to show that Ganga Dutt succeeded to the estate because he was the nearest male reversioner under the ordinary Hindu Law. The plaintiff has emphatically made that assertion: whether the claim to relief on the basis of that assertion was justified must be adjudicated at the trial of the suit, and not in deciding whether the plaintiff should be permitted to sue in forma pauperis.13. We are also of the view that the High Court was in error in holding that by an application to sue in forma pauperis, the applicant prays for relief personal to himself. An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by O. 33 of the Code of Civil Procedure is presented and O. 1, R. 10 of the Code of Civil Procedure would be as much applicable in such a suit as in a suit in which court fee had been duly paid. It is true that a person who claims to join a petitioner praying for leave to sue in forma pauperis must himself be a pauper. But his claim to join by transposition as an applicant must be investigated; it is not liable to be rejected on the ground that the claim made by the original applicant is personal to himself.
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action, or that O. 1, r. 10 of the Code of Civil. Procedure cannot properly be resorted to for transposing a party in a petition for leave to sue in forma pauperis. The plaintiff had by his plaint set up an alternative case. In the first instance, he pleaded that the will alleged to be executed by Maharaja Pratap Narain on July 20, 1891 was "void and ineffective" and the estate devolved upon Ram Jiwan and the plaintiff as members of a coparcenary: alternatively he pleaded that even if the will was valid, by the terms thereof and by the other acts and declarations of Maharaja Pratap Narain Singh, the estate was taken out "of the purview of Act I of 1869" and on the death of Maharani Jagdamba Devi the property devolved upon Ganga Dutt the nearest reversioner under the Hindu law and on his death it devolved upon the plaintiff and upon his father Ram Jiwan Misir.It does not appear that any objection was raised as to the existence of prohibitions (c) and (d) set out in. 5, and the Subordinate Judge disallowed the objection that the petition was not framed and presented as prescribed by rules 2 and 3. He did not consider the question whether the plaintiff was a pauper. He rejected the application only on the ground that it did not show a cause of action, and the High Court confirmed the order also on that ground. By the express terms of r. 5, cl. (d), the court is concerned to ascertain whether the allegations made in the petition show a cause of action. The court has not to see whether the claim made by the petitioner is likely to succeed: it has merely to satisfy itself that the allegations made in the petition, if accepted as true, would entitle the petitioner to the relief he claims. If accepting those allegations as true no case is made out for granting relief no cause of action would be shown and the petition must be rejected. But in ascertaining whether the petition shows a cause of action the court does not enter upon a trial of the issues affecting the merits of the claim made by the petitioner. It cannot take into consideration the defences which the defendant may raise upon the merits; nor is the court competent to make an elaborate enquiry into doubtful or complicated questions of law or fact. If the allegations in the petition, prima facie, show a cause of action, the court cannot embark upon an enquiry whether the allegations are true in fact, or whether the petitioner will succeed in the claims made by him. By the Statute, the jurisdiction of the Court is restricted to ascertaining whether on the allegations a cause of action is shown : the jurisdiction does not extend to trial of issues which must fairly be left for decision at the hearing of the suit.10. We do not propose to express any opinion on the question whether on the death of Jagdamba Devi the estate devolved under S. 22 (10) of Act 1 of 1869 upon Ramjiwan Misir and the plaintiff as members of a coparcenary. Even if that claim is inconsistent with the words of S. 22(10) of Act I of 1869 on which the plaintiff himself relies, the plaintiff had an alternative claim that the estate had become non-taluqdari by virtue of the will and "the acts and declarations" of Maharaja Pratap Narain. In support of this claim, S. 15 of Act I of 1869, before it was amended by U. P. Act III of 1910, is reliedwe need express no opinion on the correctness or otherwise of these decisions. An enquiry whether by virtue of certain provisions of the statute on which the first defendant relies, the plaintiff may not be entitled to the estate is as already observed, not contemplated to be made in considering a petition for leave to sue in forma pauperis. The true effect of the amended S. 15 of the Oudh Estates Act, I of 1869, is a complicated question of law which the Court will not proceed to determine in ascertaining whether the petition for leave to sue discloses a cause of action.12. The High Court, in our judgment, was in error in observing that there was nothing in the plaint to show that Ganga Dutt succeeded to the estate because he was the nearest male reversioner under the ordinary Hindu Law. The plaintiff has emphatically made that assertion: whether the claim to relief on the basis of that assertion was justified must be adjudicated at the trial of the suit, and not in deciding whether the plaintiff should be permitted to sue in forma pauperis.13. We are also of the view that the High Court was in error in holding that by an application to sue in forma pauperis, the applicant prays for relief personal to himself. An application to sue in forma pauperis, is but a method prescribed by the Code for institution of a suit by a pauper without payment of fee prescribed by the Court Fees Act. If the claim made by the applicant that he is a pauper is not established the application may fail. But there is nothing personal in such an application. The suit commences from the moment an application for permission to sue in forma pauperis as required by O. 33 of theCode of Civil Procedure is presented and O. 1, R. 10 of theCode of Civil Procedure would be as much applicable in such a suit as in a suit in which court fee had been duly paid. It is true that a person who claims to join a petitioner praying for leave to sue in forma pauperis must himself be a pauper. But his claim to join by transposition as an applicant must be investigated; it is not liable to be rejected on the ground that the claim made by the original applicant is personal to himself.
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Asst. Commissioner Of Income Tax Vs. A.K. Menon | such manner as the Special Court may direct. The Special Court has jurisdiction under S.7, of the Act, exclusively to hear and decide prosecutions in respect of offences under the said Act, that is to say, offences relating to transactions in securities after 1st April, 1991 and on or before 6th June 1992. By reason of the amendment of the said Act and the inclusion of Sections 9A and 9B the Special Court is invested with civil jurisdiction in regard to such transactions, S.II is relevant for our purpose. Sub-section (1) states that the Special Court may make such order as it may deem fit directing the Custodian for the disposal of the property under attachment. Sub-section (2) states that the following liabilities shall be paid or discharged in full, as far as may be, in the order as under : "(a) all revenues, taxes, cesses and rates due from the persons notified by the Custodian under sub-section (2) of S.3 to the Central Government or any State Government or any local authority :(b) xxxx xxxx xxxx" 4. It is clear that the Special Court has no power to sit in appeal over or overrule the orders of the tax authorities, the Income Tax Appellate Tribunal or the Courts in regard to the tax liabilities of notified persons. The only power of the Special Court is to determine the priorities in which claims upon the property under attachment shall be paid. The claims relating to the tax liabilities of a notified person are, along with revenues, cesses and rates entitled to be paid first in the order of priority and in full, as far as may be. In relation to a claim for payment of the tax liability of a notified person, the Special Court has, therefore, only the limited power to determine what, having regard to the funds available, can be paid: that is to say, whether the claim can be satisfied in full or only in part. If a particular tax claim cannot at any time be paid in full, provision would have to be made for the balance, so far as may be, so that it is not jeopardized. 5. Our attention was drawn by Mr. A.M. Setalvad, learned counsel for the Custodian, to the judgment of this Court in S. V. Kondaskar v. V. M. Deshpande, AIR 1972 SC 878 , and to the observation thereunder that the "liquidation Court would have full power to scrutinise the claim of the revenue after income tax has been determined and its payment demanded from the liquidator. It would be open to the liquidation Court then to decide how far under the law the amount of income tax determined by the Department should be accepted as a lawful liability on the funds of the company in liquidation. At that stage the winding up Court can fully safeguard the interests of the company and its creditors under the Act." The question that this Court had to decide in the case was whether it was necessary for the Income Tax officer to obtain the leave of the liquidation Court when he wanted to reassess the company in liquidation for escaped income in respect of past years. This Court said : (At P.886, Para 7) "The Income Tax Act is, in our opinion, a complete code and it is particularly so with respect to the assessment and reassessment of Income Tax with which alone we are concerned in the present case. The fact that after the amount of tax payable by an assessee has been determined or quantified its realisation from a company in liquidation is governed by the Act because the income tax payable also being a debt has to rank pari passu with other debts due from the company does not mean that the assessment proceedings for computing the amount of tax must be held to be such other legal proceedings as can only be started or continued with the leave of the liquidation Court under S.446, of the Act. The liquidation Court, in our opinion, cannot perform the function of the Income Tax Officers while assessing the amount of tax payable by the assessees even if the assessees be the company which is being wound up by the Court. The orders made by the Income Tax Officer in the course of assessment or reassessment proceedings are subject to appeal to the higher hierarchy under the Income Tax Act. There are also provisions for reference to the High Court and for appeals from the decisions of the High Court to the Supreme Court and then there are provisions for revision by the Commissioner of Income Tax. It would lead to anomalous consequences if the winding up Court were to be held empowered to transfer the assessment proceedings to itself and assess the company to Income Tax.xxxx xxxx xxxx" The language of S. 446 must be so construed as to eliminate such startling consequences as investing the winding up Court with the powers of an Income Tax Officer conferred on him by the Income Tax Act, because in our view the legislature could not have intended such a result." It is after these observations that the Court made the observation to which Mr. Setalvad drew our attention. It is perfectly clear, in the circumstances, that this observation referred only to the obligation of the liquidation had to rank pari passu with other debts due by it. how far the amount determined could be paid while still safeguarding the interests of the other creditors of the company in liquidation. Court to decide, having regard to the fact that the Income Tax payable by the company in liquidation had to rank pari passu with other debts due by it, how far the amount determined could be paid while still safeguarding the interests of the other creditors of the company in liquidation. We are of the view, therefore, that this judgment does not assist us in upholding the view taken by the Special Court. | 1[ds]3. The said Act was enacted to provide for the establishment of a Special Court for the trial of offences relating to transactions in securities and for matters connected therewith or incidental thereto. The Act requires the appointment of a Custodian thereunder who is, inter alia, required to deal with the property of person notified in such manner as the Special Court may direct. The Special Court has jurisdiction under S.7, of the Act, exclusively to hear and decide prosecutions in respect of offences under the said Act, that is to say, offences relating to transactions in securities after 1st April, 1991 and on or before 6th June 1992. By reason of the amendment of the said Act and the inclusion of Sections 9A and 9B the Special Court is invested with civil jurisdiction in regard to such transactions, S.II is relevant for our purpose. Sub-section (1) states that the Special Court may make such order as it may deem fit directing the Custodian for the disposal of the property under attachment.It is clear that the Special Court has no power to sit in appeal over or overrule the orders of the tax authorities, the Income Tax Appellate Tribunal or the Courts in regard to the tax liabilities of notified persons. The only power of the Special Court is to determine the priorities in which claims upon the property under attachment shall be paid. The claims relating to the tax liabilities of a notified person are, along with revenues, cesses and rates entitled to be paid first in the order of priority and in full, as far as may be. In relation to a claim for payment of the tax liability of a notified person, the Special Court has, therefore, only the limited power to determine what, having regard to the funds available, can be paid: that is to say, whether the claim can be satisfied in full or only in part. If a particular tax claim cannot at any time be paid in full, provision would have to be made for the balance, so far as may be, so that it is not jeopardized. | 1 | 1,463 | 394 | ### Instruction:
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such manner as the Special Court may direct. The Special Court has jurisdiction under S.7, of the Act, exclusively to hear and decide prosecutions in respect of offences under the said Act, that is to say, offences relating to transactions in securities after 1st April, 1991 and on or before 6th June 1992. By reason of the amendment of the said Act and the inclusion of Sections 9A and 9B the Special Court is invested with civil jurisdiction in regard to such transactions, S.II is relevant for our purpose. Sub-section (1) states that the Special Court may make such order as it may deem fit directing the Custodian for the disposal of the property under attachment. Sub-section (2) states that the following liabilities shall be paid or discharged in full, as far as may be, in the order as under : "(a) all revenues, taxes, cesses and rates due from the persons notified by the Custodian under sub-section (2) of S.3 to the Central Government or any State Government or any local authority :(b) xxxx xxxx xxxx" 4. It is clear that the Special Court has no power to sit in appeal over or overrule the orders of the tax authorities, the Income Tax Appellate Tribunal or the Courts in regard to the tax liabilities of notified persons. The only power of the Special Court is to determine the priorities in which claims upon the property under attachment shall be paid. The claims relating to the tax liabilities of a notified person are, along with revenues, cesses and rates entitled to be paid first in the order of priority and in full, as far as may be. In relation to a claim for payment of the tax liability of a notified person, the Special Court has, therefore, only the limited power to determine what, having regard to the funds available, can be paid: that is to say, whether the claim can be satisfied in full or only in part. If a particular tax claim cannot at any time be paid in full, provision would have to be made for the balance, so far as may be, so that it is not jeopardized. 5. Our attention was drawn by Mr. A.M. Setalvad, learned counsel for the Custodian, to the judgment of this Court in S. V. Kondaskar v. V. M. Deshpande, AIR 1972 SC 878 , and to the observation thereunder that the "liquidation Court would have full power to scrutinise the claim of the revenue after income tax has been determined and its payment demanded from the liquidator. It would be open to the liquidation Court then to decide how far under the law the amount of income tax determined by the Department should be accepted as a lawful liability on the funds of the company in liquidation. At that stage the winding up Court can fully safeguard the interests of the company and its creditors under the Act." The question that this Court had to decide in the case was whether it was necessary for the Income Tax officer to obtain the leave of the liquidation Court when he wanted to reassess the company in liquidation for escaped income in respect of past years. This Court said : (At P.886, Para 7) "The Income Tax Act is, in our opinion, a complete code and it is particularly so with respect to the assessment and reassessment of Income Tax with which alone we are concerned in the present case. The fact that after the amount of tax payable by an assessee has been determined or quantified its realisation from a company in liquidation is governed by the Act because the income tax payable also being a debt has to rank pari passu with other debts due from the company does not mean that the assessment proceedings for computing the amount of tax must be held to be such other legal proceedings as can only be started or continued with the leave of the liquidation Court under S.446, of the Act. The liquidation Court, in our opinion, cannot perform the function of the Income Tax Officers while assessing the amount of tax payable by the assessees even if the assessees be the company which is being wound up by the Court. The orders made by the Income Tax Officer in the course of assessment or reassessment proceedings are subject to appeal to the higher hierarchy under the Income Tax Act. There are also provisions for reference to the High Court and for appeals from the decisions of the High Court to the Supreme Court and then there are provisions for revision by the Commissioner of Income Tax. It would lead to anomalous consequences if the winding up Court were to be held empowered to transfer the assessment proceedings to itself and assess the company to Income Tax.xxxx xxxx xxxx" The language of S. 446 must be so construed as to eliminate such startling consequences as investing the winding up Court with the powers of an Income Tax Officer conferred on him by the Income Tax Act, because in our view the legislature could not have intended such a result." It is after these observations that the Court made the observation to which Mr. Setalvad drew our attention. It is perfectly clear, in the circumstances, that this observation referred only to the obligation of the liquidation had to rank pari passu with other debts due by it. how far the amount determined could be paid while still safeguarding the interests of the other creditors of the company in liquidation. Court to decide, having regard to the fact that the Income Tax payable by the company in liquidation had to rank pari passu with other debts due by it, how far the amount determined could be paid while still safeguarding the interests of the other creditors of the company in liquidation. We are of the view, therefore, that this judgment does not assist us in upholding the view taken by the Special Court.
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3. The said Act was enacted to provide for the establishment of a Special Court for the trial of offences relating to transactions in securities and for matters connected therewith or incidental thereto. The Act requires the appointment of a Custodian thereunder who is, inter alia, required to deal with the property of person notified in such manner as the Special Court may direct. The Special Court has jurisdiction under S.7, of the Act, exclusively to hear and decide prosecutions in respect of offences under the said Act, that is to say, offences relating to transactions in securities after 1st April, 1991 and on or before 6th June 1992. By reason of the amendment of the said Act and the inclusion of Sections 9A and 9B the Special Court is invested with civil jurisdiction in regard to such transactions, S.II is relevant for our purpose. Sub-section (1) states that the Special Court may make such order as it may deem fit directing the Custodian for the disposal of the property under attachment.It is clear that the Special Court has no power to sit in appeal over or overrule the orders of the tax authorities, the Income Tax Appellate Tribunal or the Courts in regard to the tax liabilities of notified persons. The only power of the Special Court is to determine the priorities in which claims upon the property under attachment shall be paid. The claims relating to the tax liabilities of a notified person are, along with revenues, cesses and rates entitled to be paid first in the order of priority and in full, as far as may be. In relation to a claim for payment of the tax liability of a notified person, the Special Court has, therefore, only the limited power to determine what, having regard to the funds available, can be paid: that is to say, whether the claim can be satisfied in full or only in part. If a particular tax claim cannot at any time be paid in full, provision would have to be made for the balance, so far as may be, so that it is not jeopardized.
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Kanaiyalal Maneklal Chinai & Anr Vs. State Of Gujarat & Ors | its discretion, to provide from time to time either wholly or partly, in the matters, inter alia, of any measure likely to promote public safety, health, convenience or instruction, and in the view of the High Court "setting up a Samadhi or memorial of the type could be fairly regarded as incidental to the right and power to give public instruction which is a matter within the competence of the Municipal Corporation under clause (42) of Section 66". It is not necessary for us to express any opinion on this part of the case, for, we are clearly of the view that the notification under Section 4 of the Land Acquisition Act does not refer to any purpose of the Ahmedabad Municipal Corporation nor is the acquisition for a purpose for which the Commissioner is required by the provisions of the Provincial Municipal Corporations Act, 1949, to acquire the land . The land is needed for setting up a memorial to Mahatma Gandhi at a place associated with him, and we regard, because of the universal veneration in which the memory of Mahatma Gandhi is held in our country, that the purpose was a public purpose. Counsel for the appellants has not attempted to argue that acquisition of land for setting up a memorial to Mahatma Gandhi at a place which has some association with him is not a public purpose.He merely argued that setting up of a memorial to Mahatma Gandhi is not a purpose for which the Commissioner is required by the Provincial Municipal Corporations Act, 1949, to acquire the land, nor is it a purpose of the Municipality under the Municipal Corporations Act. The purpose of acquisition being one which falls within the normal connotation of the expression "public purpose" within the meaning of Section 4 of the Land Acquisition Act, it is unnecessary to rely upon the extended meaning of the expression "public purpose" as provided by Section 78 (1) of the Provincial Municipal Corporations Act, 1949.11. It was urged that municipal funds were, contrary to the provisions of the Provincial Municipal Corporations Act, 1949, intended to be utilised for setting up a memorial to Mahatma Gandhi. But we are not concerned in the present case to determine whether if the funds are utilised, they will be lawfully utilised:that is a matter which is not within the periphery of the inquiry in this appeal. The land is being acquired for a purpose which is a public purpose, and once that condition is fulfilled no further inquiry need be made, whether if the municipal funds are to be utilised for setting up a memorial to Mahatma Gandhi, after the land is vested in the State after acquisition, the Municipality will be acting within the limits of its authority.We may observe that a notification issued under Section 6 is by sub-section (3) conclusive evidence that the land is needed for a public purpose.12. The Land Acquisition Act does not provide that the instrumentality which is to carry out the purpose must be set out in the notifications under Sections 4 and 6 of the Act. The Gujarat High Court is Special Civil Application No. 800 of 1961 (Guj): Chandulal Patel v. State of Gujarat held that if the public purpose for which land is notified for acquisition is to be executed through "an instrumentality other than the State Government", failure to specifically mention "the instrumentality" in the notifications renders the notifications invalid. But in Ramaji Popatbhai v. Jamnadas Shah, (1969) 10 Guj LR 164 (FB) a Full Bench of that High Court has overruled that earlier judgment. In Vishnu Prasad Ramdas Gohil v. The State of Gujarat, C. A. No. 1983 of 1966, D/- 9-10-1069 (SC) we have held, agreeing with the view of the Full Bench of the Gujarat High Court, that failure to specify the instrumentality which is execute the public purpose does not affect the validity of the notification either under Section 4 or under Section 6 of the Land Acquisition Act.13. There is no substance in the argument that the Commissioner, Baroda Division, did not apply his mind in issuing the notification under Section 6. The land notified for acquisition under Section 4 was 3428 sq. yards 3 sq. ft. out of Survey No. 348B, and 494 sq. yards 5 sq. ft. out of Survey No. 349. The area of the land notified under Section 6 was stated to be 3562 sq. yards out of Survey No. 348B and 387 sq. ft. yards out of Survey No. 349. Even though the area of land out of Survey No. 348B executed the area originally mentioned in the notification under Section 4, the Commissioner stated in the impugned notification that"the remaining area of the said lands notified under Section 4....... is hereby abandoned".It was urged that there was no "remaining area" of the land out of Survey No. 348B which could be abandoned and the recital indicated that the Commissioner did not apply his mind to the relevant materials on which the notification was to be issued. It is, however, to be noticed that the entire Survey No. 348B was not notified for acquisition: only a part of the land was notified for acquisition under the notification under Section 4. Under the notification 3428 sq. yards 3 sq. ft. were notified, but the notification under Section 6 the declaration related to 3562 sq. yards. Under the notification under Section 6 it was recited that the remaining area of the land out of Survey No. 348B was declared as not likely to be needed for a public purpose.The use of the expression "the remaining area of the laid lands notified under Section 4 ........ is hereby abandoned" does not justify an inference that the Commissioner did not apply his mind. It may be reasonably inferred that it was intended to be covered thereby that a part of the land out of Survey No. 348B which was not needed for a public purpose was excluded from the notification. | 0[ds]This Court has in Arnold Rodricks v. State of Maharashtra, 1966-3 SCR 885 = (AIR 1966 SC 1788 ) by majority held that the powers conferred by Section 3 (4) on the State Government are not unguided and that the State Legislature has by enacting Section 3 (4) not abdicated its power in favour of the executive, for it has laid down the legislative policy and has left it to the State Government to reorganise the administration consequent on the setting up of Commissioners Divisions. The challenge to the vires of the Commissioners of Divisions Act 8 of 1958 must fail.7. The notification under Section 4 of the Land Acquisition Act was issued by the Commissioner, Ahmedabad Division, exercising powers as an officer of the State of Bombay. But after the notification was issued, the State of Bombay was recognized and the area in which the land is situated was included in the new State of Gujarat. The Commissioner of Baroda Division was competent to exercise the powers under the Commissioners of Divisions Act which continued to remain in force in the new State of Gujarat in respect of the Land Acquisition Act and had on that account power to issue a notification under Section 6 of the Act. The notification under Section 4 was issued by the Commissioner, Ahmedabad Division, who was competent to issue it in the set-up then in existence and the Commissioner competent to issue the notification under Section 6 had issued that notification.The authority of the Commissioner of the State of Gujarat to issue the notification under Section 6 not being open to challenge, there is nothing in the Land Acquisition Act or the Commissioners of Divisions Act, which requires that to invest the notification under Section 6 with validity, the Commissioner of the State of Gujarat had in the first instance to issue a notification under Section 4 of the Aft declaring that the land was needed or was likely to be needed for any publicis not necessary for us to express any opinion on this part of the case, for, we are clearly of the view that the notification under Section 4 of the Land Acquisition Act does not refer to any purpose of the Ahmedabad Municipal Corporation nor is the acquisition for a purpose for which the Commissioner is required by the provisions of the Provincial Municipal Corporations Act, 1949, to acquire the land . The land is needed for setting up a memorial to Mahatma Gandhi at a place associated with him, and we regard, because of the universal veneration in which the memory of Mahatma Gandhi is held in our country, that the purpose was a public purpose. Counsel for the appellants has not attempted to argue that acquisition of land for setting up a memorial to Mahatma Gandhi at a place which has some association with him is not a public purpose.He merely argued that setting up of a memorial to Mahatma Gandhi is not a purpose for which the Commissioner is required by the Provincial Municipal Corporations Act, 1949, to acquire the land, nor is it a purpose of the Municipality under the Municipal Corporations Act. The purpose of acquisition being one which falls within the normal connotation of the expression "public purpose" within the meaning of Section 4 of the Land Acquisition Act, it is unnecessary to rely upon the extended meaning of the expression "public purpose" as provided by Section 78 (1) of the Provincial Municipal Corporations Act,we are not concerned in the present case to determine whether if the funds are utilised, they will be lawfully utilised:that is a matter which is not within the periphery of the inquiry in this appeal. The land is being acquired for a purpose which is a public purpose, and once that condition is fulfilled no further inquiry need be made, whether if the municipal funds are to be utilised for setting up a memorial to Mahatma Gandhi, after the land is vested in the State after acquisition, the Municipality will be acting within the limits of its authority.We may observe that a notification issued under Section 6 is by sub-section (3) conclusive evidence that the land is needed for a publicis, however, to be noticed that the entire Survey No. 348B was not notified for acquisition: only a part of the land was notified for acquisition under the notification under Section 4. Under the notification 3428 sq. yards 3 sq. ft. were notified, but the notification under Section 6 the declaration related to 3562 sq. yards. Under the notification under Section 6 it was recited that the remaining area of the land out of Survey No. 348B was declared as not likely to be needed for a public purpose.The use of the expression "the remaining area of the laid lands notified under Section 4 ........ is hereby abandoned" does not justify an inference that the Commissioner did not apply his mind. It may be reasonably inferred that it was intended to be covered thereby that a part of the land out of Survey No. 348B which was not needed for a public purpose was excluded from the notification. | 0 | 3,319 | 931 | ### 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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its discretion, to provide from time to time either wholly or partly, in the matters, inter alia, of any measure likely to promote public safety, health, convenience or instruction, and in the view of the High Court "setting up a Samadhi or memorial of the type could be fairly regarded as incidental to the right and power to give public instruction which is a matter within the competence of the Municipal Corporation under clause (42) of Section 66". It is not necessary for us to express any opinion on this part of the case, for, we are clearly of the view that the notification under Section 4 of the Land Acquisition Act does not refer to any purpose of the Ahmedabad Municipal Corporation nor is the acquisition for a purpose for which the Commissioner is required by the provisions of the Provincial Municipal Corporations Act, 1949, to acquire the land . The land is needed for setting up a memorial to Mahatma Gandhi at a place associated with him, and we regard, because of the universal veneration in which the memory of Mahatma Gandhi is held in our country, that the purpose was a public purpose. Counsel for the appellants has not attempted to argue that acquisition of land for setting up a memorial to Mahatma Gandhi at a place which has some association with him is not a public purpose.He merely argued that setting up of a memorial to Mahatma Gandhi is not a purpose for which the Commissioner is required by the Provincial Municipal Corporations Act, 1949, to acquire the land, nor is it a purpose of the Municipality under the Municipal Corporations Act. The purpose of acquisition being one which falls within the normal connotation of the expression "public purpose" within the meaning of Section 4 of the Land Acquisition Act, it is unnecessary to rely upon the extended meaning of the expression "public purpose" as provided by Section 78 (1) of the Provincial Municipal Corporations Act, 1949.11. It was urged that municipal funds were, contrary to the provisions of the Provincial Municipal Corporations Act, 1949, intended to be utilised for setting up a memorial to Mahatma Gandhi. But we are not concerned in the present case to determine whether if the funds are utilised, they will be lawfully utilised:that is a matter which is not within the periphery of the inquiry in this appeal. The land is being acquired for a purpose which is a public purpose, and once that condition is fulfilled no further inquiry need be made, whether if the municipal funds are to be utilised for setting up a memorial to Mahatma Gandhi, after the land is vested in the State after acquisition, the Municipality will be acting within the limits of its authority.We may observe that a notification issued under Section 6 is by sub-section (3) conclusive evidence that the land is needed for a public purpose.12. The Land Acquisition Act does not provide that the instrumentality which is to carry out the purpose must be set out in the notifications under Sections 4 and 6 of the Act. The Gujarat High Court is Special Civil Application No. 800 of 1961 (Guj): Chandulal Patel v. State of Gujarat held that if the public purpose for which land is notified for acquisition is to be executed through "an instrumentality other than the State Government", failure to specifically mention "the instrumentality" in the notifications renders the notifications invalid. But in Ramaji Popatbhai v. Jamnadas Shah, (1969) 10 Guj LR 164 (FB) a Full Bench of that High Court has overruled that earlier judgment. In Vishnu Prasad Ramdas Gohil v. The State of Gujarat, C. A. No. 1983 of 1966, D/- 9-10-1069 (SC) we have held, agreeing with the view of the Full Bench of the Gujarat High Court, that failure to specify the instrumentality which is execute the public purpose does not affect the validity of the notification either under Section 4 or under Section 6 of the Land Acquisition Act.13. There is no substance in the argument that the Commissioner, Baroda Division, did not apply his mind in issuing the notification under Section 6. The land notified for acquisition under Section 4 was 3428 sq. yards 3 sq. ft. out of Survey No. 348B, and 494 sq. yards 5 sq. ft. out of Survey No. 349. The area of the land notified under Section 6 was stated to be 3562 sq. yards out of Survey No. 348B and 387 sq. ft. yards out of Survey No. 349. Even though the area of land out of Survey No. 348B executed the area originally mentioned in the notification under Section 4, the Commissioner stated in the impugned notification that"the remaining area of the said lands notified under Section 4....... is hereby abandoned".It was urged that there was no "remaining area" of the land out of Survey No. 348B which could be abandoned and the recital indicated that the Commissioner did not apply his mind to the relevant materials on which the notification was to be issued. It is, however, to be noticed that the entire Survey No. 348B was not notified for acquisition: only a part of the land was notified for acquisition under the notification under Section 4. Under the notification 3428 sq. yards 3 sq. ft. were notified, but the notification under Section 6 the declaration related to 3562 sq. yards. Under the notification under Section 6 it was recited that the remaining area of the land out of Survey No. 348B was declared as not likely to be needed for a public purpose.The use of the expression "the remaining area of the laid lands notified under Section 4 ........ is hereby abandoned" does not justify an inference that the Commissioner did not apply his mind. It may be reasonably inferred that it was intended to be covered thereby that a part of the land out of Survey No. 348B which was not needed for a public purpose was excluded from the notification.
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### Explanation:
This Court has in Arnold Rodricks v. State of Maharashtra, 1966-3 SCR 885 = (AIR 1966 SC 1788 ) by majority held that the powers conferred by Section 3 (4) on the State Government are not unguided and that the State Legislature has by enacting Section 3 (4) not abdicated its power in favour of the executive, for it has laid down the legislative policy and has left it to the State Government to reorganise the administration consequent on the setting up of Commissioners Divisions. The challenge to the vires of the Commissioners of Divisions Act 8 of 1958 must fail.7. The notification under Section 4 of the Land Acquisition Act was issued by the Commissioner, Ahmedabad Division, exercising powers as an officer of the State of Bombay. But after the notification was issued, the State of Bombay was recognized and the area in which the land is situated was included in the new State of Gujarat. The Commissioner of Baroda Division was competent to exercise the powers under the Commissioners of Divisions Act which continued to remain in force in the new State of Gujarat in respect of the Land Acquisition Act and had on that account power to issue a notification under Section 6 of the Act. The notification under Section 4 was issued by the Commissioner, Ahmedabad Division, who was competent to issue it in the set-up then in existence and the Commissioner competent to issue the notification under Section 6 had issued that notification.The authority of the Commissioner of the State of Gujarat to issue the notification under Section 6 not being open to challenge, there is nothing in the Land Acquisition Act or the Commissioners of Divisions Act, which requires that to invest the notification under Section 6 with validity, the Commissioner of the State of Gujarat had in the first instance to issue a notification under Section 4 of the Aft declaring that the land was needed or was likely to be needed for any publicis not necessary for us to express any opinion on this part of the case, for, we are clearly of the view that the notification under Section 4 of the Land Acquisition Act does not refer to any purpose of the Ahmedabad Municipal Corporation nor is the acquisition for a purpose for which the Commissioner is required by the provisions of the Provincial Municipal Corporations Act, 1949, to acquire the land . The land is needed for setting up a memorial to Mahatma Gandhi at a place associated with him, and we regard, because of the universal veneration in which the memory of Mahatma Gandhi is held in our country, that the purpose was a public purpose. Counsel for the appellants has not attempted to argue that acquisition of land for setting up a memorial to Mahatma Gandhi at a place which has some association with him is not a public purpose.He merely argued that setting up of a memorial to Mahatma Gandhi is not a purpose for which the Commissioner is required by the Provincial Municipal Corporations Act, 1949, to acquire the land, nor is it a purpose of the Municipality under the Municipal Corporations Act. The purpose of acquisition being one which falls within the normal connotation of the expression "public purpose" within the meaning of Section 4 of the Land Acquisition Act, it is unnecessary to rely upon the extended meaning of the expression "public purpose" as provided by Section 78 (1) of the Provincial Municipal Corporations Act,we are not concerned in the present case to determine whether if the funds are utilised, they will be lawfully utilised:that is a matter which is not within the periphery of the inquiry in this appeal. The land is being acquired for a purpose which is a public purpose, and once that condition is fulfilled no further inquiry need be made, whether if the municipal funds are to be utilised for setting up a memorial to Mahatma Gandhi, after the land is vested in the State after acquisition, the Municipality will be acting within the limits of its authority.We may observe that a notification issued under Section 6 is by sub-section (3) conclusive evidence that the land is needed for a publicis, however, to be noticed that the entire Survey No. 348B was not notified for acquisition: only a part of the land was notified for acquisition under the notification under Section 4. Under the notification 3428 sq. yards 3 sq. ft. were notified, but the notification under Section 6 the declaration related to 3562 sq. yards. Under the notification under Section 6 it was recited that the remaining area of the land out of Survey No. 348B was declared as not likely to be needed for a public purpose.The use of the expression "the remaining area of the laid lands notified under Section 4 ........ is hereby abandoned" does not justify an inference that the Commissioner did not apply his mind. It may be reasonably inferred that it was intended to be covered thereby that a part of the land out of Survey No. 348B which was not needed for a public purpose was excluded from the notification.
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